RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0468p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
Petitioner-Appellant, -
ASHAD R.A. MUHAMMAD ALI,
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No. 04-5073
v.
,
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TENNESSEE BOARD OF PARDON AND PAROLES, -
Respondent-Appellee. -
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 03-00644—John T. Nixon, District Judge.
Argued: September 23, 2005
Decided and Filed: December 13, 2005
Before: COLE, ROGERS, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Mary Beth Young, JONES DAY, Columbus, Ohio, for Appellant. Elizabeth T. Ryan,
OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF:
Mary Beth Young, Junxia T. Jernejcic, JONES DAY, Columbus, Ohio, for Appellant. Angele M.
Gregory, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
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OPINION
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ROGERS, Circuit Judge. This case involves the timeliness of a habeas corpus petition
challenging a denial of parole to a state prisoner. Accepting for the sake of argument the
applicability of the one-year statute of limitations for habeas petitions found in 28 U.S.C.
§ 2244(d)(1), and assuming—again for the sake of argument—that Tennessee court review of parole
determinations is collateral for purposes of the tolling provision of 28 U.S.C. § 2244(d)(2), the
habeas corpus petition in this case was timely filed under our court’s holding in Abela v. Martin, 348
F.3d 164 (6th Cir. 2003) (en banc). We therefore reverse the district court’s dismissal of the habeas
petition.
Petitioner Ashad R.A. Muhammad Ali was convicted in 1985 of first degree burglary,
armed robbery, and aggravated rape. He was sentenced to ten years’ imprisonment for the burglary,
to be followed by concurrent sentences of twenty years’ imprisonment for the robbery and thirty
years’ imprisonment for the rape. Ali received a parole hearing on July 24, 2000, but the Parole
Hearings Division of the Tennessee Board of Pardon and Paroles denied parole on the ground that
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No. 04-5073 Muhammad Ali v. Tenn. Bd. of Pardon and Paroles Page 2
“[t]he release from custody at the time would [d]epreciate the seriousness of the crime of which the
offender stands convicted or promote [d]isrespect of the law.” Ali received the denial on August
24, 2000. He appealed the denial, and the full Tennessee Board of Pardon and Paroles denied parole
on December 6, 2000. Ali received notice of Tennessee’s decision on December 12, 2000.
On January 29, 2001, Ali filed a petition for a writ of certiorari in the Chancery Court of
Davidson County challenging his parole denial. He argued, among other things, that the Parole
Hearings Division violated the Ex Post Facto Clause by using regulations enacted after his
conviction rather than those in place at the time of his offense. The Chancery Court dismissed Ali’s
petition on April 25, 2001. The Tennessee Court of Appeals affirmed the dismissal of Ali’s petition
on January 22, 2002, and the Tennessee Supreme Court denied Ali’s application for permission to
appeal on July 8, 2002. Ali never sought a writ of certiorari in the Supreme Court of the United
States to challenge the decision of the Tennessee Court of Appeals.
Ali sought a writ of habeas corpus under 28 U.S.C. § 2254 by mailing a petition from prison
on either the 8th or 9th of July 2003. The petition was filed on July 16, 2003. The district court,
however, construed the petition as having been brought under 28 U.S.C. § 2241 because “§ 2241
generally is used to challenge the execution of a sentence, or manner in which a sentence is being
served.” The district court ultimately dismissed the petition as time-barred, holding that the
§ 2244(d)(1) limitations period applies to § 2241 habeas petitions. Ali filed a timely notice of
appeal.
Even if the statute of limitations applies, Ali’s habeas petition was timely because it was filed
within one year of the denial of his parole, regardless of whether the parole denial is construed to
be the final administrative denial of parole or the final state judicial affirmance of parole denial. If
the final administrative denial of parole started the one-year period under 28 U.S.C. § 2244(d)(1),
and state court review is considered collateral rather than direct, Ali’s petition is timely because
statutory tolling of the period for such collateral review includes an additional 90 days during which
Ali could have petitioned the United States Supreme Court to review the Tennessee court’s final
determination. See Abela v. Martin, 348 F.3d 164, 172-73 (6th Cir. 2003) (en banc). We therefore
find it unnecessary to address the underlying questions of whether the § 2244(d)(1) limitations
period applies to federal collateral review of parole determinations under § 2241 in the first place,
and if so, when the one-year period starts.
Section 2244(d)(1) provides that “a 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” The
language of the provision appears to apply to a habeas challenge like Ali’s to a state parole denial.
Ali has filed an application for a writ of habeas corpus and he is in custody pursuant to the judgment
of a state court. An unpublished order from this court supports this reading. See Brock v. Howes,
No. 03-2105, 96 Fed. Appx. 968, 969 (6th Cir. Apr. 30, 2004) (relying upon Burger v. Scott, 317
F.3d 1133, 1138 (10th Cir. 2003), and Owens v. Boyd, 235 F.3d 356, 360 (7th Cir. 2000)). As Ali
argues, though, such a reading leads to the arguably anomalous situation that state prisoners
challenging the execution of their sentences are subject to the one-year statute of limitations, while
similarly situated federal prisoners are not subject to such a time limit. However, we need not
resolve the issue in this case because, as explained below, Ali’s petition was timely even if the
statute of limitations applies.
In the context of a challenge to a parole denial, the one-year period of § 2244(d)(1) appears
to start when, under § 2244(d)(1)(D), Ali could have discovered the “factual predicate of the claim
. . . through the exercise of due diligence.” The other points provided by the statute for starting the
period are not applicable. Section 2244(d)(1) provides:
No. 04-5073 Muhammad Ali v. Tenn. Bd. of Pardon and Paroles Page 3
(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
Both parties agree that §§ 2244(d)(1)(B) and (C) are not applicable to Ali’s petition. Although Ali
suggests that § 2244(d)(1)(A) could trigger the statute of limitations, the words “the judgment” in
subsection (A) clearly refer to “the judgment” in the first sentence of (d)(1), i.e., the judgment
pursuant to which the person is in custody—the judgment of conviction. To construe the word
“judgment” in (A) more broadly to include post-confinement determinations by state officials in
carrying out a sentence would be a strained reading, entirely unnecessary in the presence of the more
logically applicable subsection (D).
The factual predicate of Ali’s claim is his parole denial. The question then becomes when
that denial occurred for purposes of § 2244(d)(1)(D). One possibility is the conclusion of state
judicial review of the1 parole denial. Under that possibility, Tennessee does not contest that Ali’s
petition was timely. The only other logical possibility is the (earlier) final administrative
determination to deny parole. If we assume that “the factual predicate of the claim” in Ali’s case
was the administratively final denial of parole, then (as both parties agree) the time during which
timely-brought state court judicial review is pending is excludable under § 2244(d)(2), which tolls
the limitations period for the time “during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending.” (emphasis added).
We now arrive at the determinative issue dividing the parties. If the state court judicial
review was pending for purposes of § 2244(d)(2) not only until the Tennessee Supreme Court denied
Ali’s application for permission to appeal on July 8, 2002, but also during the following 90 days in
which certiorari could have been sought to the United States Supreme Court, then Ali’s petition was
timely. That is, only 339 days at the most had elapsed: 47 days between December 12, 2000, the
date Ali received notice of Tennessee’s denial of his appeal, and January 29, 2001, the date Ali filed
an application for a writ of certiorari in the Tennessee Chancery Court; and approximately 292 days
between October 7, 2002, the last day Ali could have sought a writ of certiorari in the United States
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Ali claims that he deposited his petition in the prison mail system on July 8, 2003, exactly one year after the
Tennessee Supreme Court denied Ali’s application for permission to appeal on July 8, 2002. Tennessee does not argue
that the petition was not timely if the 47 days are not counted between December 12, 2000 (the date Ali received notice
of Tennessee’s denial of his administrative appeal) and January 29, 2001 (the date Ali filed his judicial review
application in the Tennessee Chancery Court). Those 47 days would not be counted if the parole denial is not considered
final until the completion of state judicial review.
No. 04-5073 Muhammad Ali v. Tenn. Bd. of Pardon and Paroles Page 4
Supreme Court, and July 16, 2003, the date Ali’s present habeas petition was filed with the district
court.
The additional 90 days when a petition for certiorari could have been filed must be included
under our prior decision in Abela v. Martin, 348 F.3d 164 (6th Cir. 2003) (en banc). In that case we
held that:
[U]nder section 2244(d)(2), the statute of limitations is tolled from the filing of an
application for state post-conviction or other collateral relief until the conclusion of
the time for seeking Supreme Court review of the state’s final judgment on that
application independent of whether the petitioner actually petitions the Supreme
Court to review the case.
348 F.3d at 172-73. Tennessee argues that this court should not extend Abela “to habeas petitions
challenging administrative decisions” because the holding of Abela “has only been applied to cases
where the petitioner is challenging a state court judgment of conviction.”2 The holding of Abela,
however, gives no indication that such a distinction should be made. Once we assume that state-
court proceedings to review administrative parole determinations are “collateral review with respect
to the pertinent . . . claim,” both the logic and the language of Abela require tolling of the additional
90 days. Abela, 348 F.3d at 172 (characterizing its holding as extending to “other collateral relief”).
Accordingly, Abela applies, and thus Ali’s petition was timely.
The judgment of the district court dismissing the habeas corpus petition as untimely is
REVERSED.
2
Our application of Abela has not been so limited. In DiCenzi v. Rose, we applied Abela to toll the limitations
period with respect to a habeas petition following state-court proceedings on a motion to file a delayed appeal. 419 F.3d
493, 496-97 (6th Cir. 2005). In his habeas petition, among other things, DiCenzi alleged that “the Ohio Court of Appeals
denied him due process when it denied his motion for delayed appeal.” Id. at 497. According to DiCenzi, the court of
appeals was required to grant his motion for a delayed appeal because the trial court did not inform him of his right to
appeal after he was given the maximum possible sentence under Ohio law. Id. at 494. DiCenzi’s habeas claim thus was
not purely a case “where the petitioner is challenging a state court judgment of conviction.” This court nonetheless
applied Abela to toll the statute of limitations during the period in which DiCenzi could have sought certiorari in the
Supreme Court of the United States.