dissenting:
The court holds that Jenkins’s state post-conviction petition was “properly filed” within the meaning of 28 U.S.C. § 2244(d)(2) on the basis of a purported ambiguity in Oregon law that existed at the time of filing of his petition for relief but has since been clarified. I respectfully disagree. The plain meaning of Oregon statutory law was perfectly clear, and we are bound to follow it. Accordingly, I would affirm the district court, and hold that Jenkins was not entitled to statutory tolling and that his federal petition was therefore untimely under AEDPA.
I
At issue, of course, is whether Jenkins is entitled to statutory tolling under § 2244(d)(2), thereby rendering his writ of federal habeas corpus timely. Statutory tolling applies to “[t]he 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.” 28 U.S.C. § 2244(d)(2) (emphasis added). A petition is “properly filed” within the meaning of § 2244(d)(2) if it satisfies certain procedural requirements known as “conditions to fifing.” Artuz v. Bennett, 531 U.S. 4, 11, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). Other requirements, which incorporate some aspect of the merits of the petition, are termed “conditions to obtaining relief.” Id. Failure to comply with this latter set of requirements does not render the petition improperly filed for purposes of § 2244(d)(2). Id.
In the context of Jenkins’s petition for relief, we are thus confronted with the issue of whether a statute of limitations for the fifing of a state petition is properly classified as a “condition to fifing” or a “condition to obtaining relief.” If compliance with the timeliness requirement is a “condition to fifing,” then Jenkins is not entitled to statutory tolling for the pen-dency of his state petition for relief because it was not “properly filed” pursuant to § 2244(d)(2).
In Dictado v. Ducharme, 244 F.3d 724, 728 (9th Cir.2001), we held that a state statute prescribing a timely fifing requirement constituted a “condition to obtaining relief’ if it “contain[ed] exceptions [requiring] a state court to examine the merits of a petition before it is dismissed.” Accordingly, under Dictado, a statute of limitations is ordinarily a “condition to fifing,” which does not warrant statutory tolling, unless it contains a good cause exception or some similar provision that entails a review of the merits.
II
Turning to the case at hand, the Oregon statute of limitations for post-conviction petitions has two pertinent subsections. See Or.Rev.Stat. § 138.510. Subsection (2), applicable to would-be petitioners whose convictions became final after a certain date, provides for a good cause exception. Subsection (3), which applies to would-be petitioners (including Jenkins) convicted before the specified date, contains no such exception; it is a flat one-year time bar.
In 1992, before subsection (3) was enacted, the Oregon Supreme Court upheld the constitutionality of subsection (2). See Bartz v. State, 314 Or. 353, 839 P.2d 217 (1992) (en banc). In a unanimous opinion, the court stated that the limitations period for fifing petitions (then 120 days, now two *1157years) was constitutionally permissible. The court found “that the 120 day period of limitation!)] ... which incorporates an exception in certain circumstances, does not prevent the available procedure from being reasonable for persons who seek redress.” Id. at 225.
Extending the Oregon Supreme Court’s pronouncement in Bartz to this case, the majority remarkably recites that it was unclear whether a good cause exception also applied to subsection (3). The majority divines that an ambiguity existed until the Oregon Court of Appeals in Wallis v. Baldwin, 152 Or.App. 295, 954 P.2d 192 (1998) explicitly rejected the idea that subsection (3) impliedly contains a good-cause exception like the one expressly contained in subsection (2). Because Wallis was decided after Jenkins’s untimely petition to the Oregon courts (filed in 1996), the majority bootstraps the claim that the “clarity” that Wallis brought to the law does not bar Jenkins’s untimely petition.
This argument might conceivably have some merit in some other circumstance, as where there was a genuine ambiguity in the state procedural rule and the record indicated that, before the clarifying decision, the state courts treated the rule as a “condition to obtaining relief’ rather than a “condition to filing.” However, there simply is no such ambiguity in this case. Subsection (3) required those convicted before August 5, 1989, who had not previously filed a petition for post-conviction relief, to file their petitions before November 4, 1994. That gave the petitioners over five years, which is ample for constitutional purposes, as the Wallis court duly recognized.
In evaluating the constitutionality of old subsection (2), the Oregon Supreme Court stated that “a reasonable time limitation may be placed on the assertion of a state constitutional claim.” Bartz, 839 P.2d at 225. The court further stated, “The 120-day limit, when combined with the exception, provides a reasonable opportunity to seek post-conviction relief.” Id. Accordingly, the court in Bartz merely decided the reasonableness of subsection (2), a legislatively enacted 120-day limit which contained a good cause exception.
Nevertheless, the majority interprets the Oregon Supreme Court’s holding in Bartz as injecting an ambiguity into the statutory scheme such that the plain meaning of subsection (3) is to be ignored. The majority infers from Bartz that any time limit without an express good cause exception would be unconstitutional. Accordingly, the majority reasons that until Wallis was handed down subsection (3) must be read to include such an exception, even though its text contains no such thing. This interpretation of Bartz stretches far beyond a reasonable limit and constitutes a stunning departure from the scheme enacted by the Oregon legislature. Indeed, since subsection (3) was enacted after Bartz, the Oregon Legislature knew of the holding in that case and understood, presumably better than we do, the import of Bartz.
Ill
Therefore, I must dissent from the conclusion that subsection (3) “was not an adequate state ground of decision for procedural bar purposes prior to Wallis.” Supra at 1153.1 The text of subsection (3) *1158is clear on its face and does not allow us to insinuate an ambiguity where none exists.
. It also seems to me that the bar contained in the second sentence of § 138.510(3) posed a "condition to filing” and would deny Jenkins's claim for statutory tolling. The clear import of the statutory text is that second or successive petitions by prisoners convicted before 1989 are absolutely barred. See Or. Rev.Stat. § 138.510(3) ("A person whose post-conviction petition was dismissed prior to November 4, 1993, cannot file another post-conviction petition involving the same case.”). Nevertheless, I agree with the major*1158ity that this argument has been waived because the State disclaimed reliance — for reasons that are beyond me — on this provision at oral argument.