Bradford K. Isley v. Arizona Department of Corrections Terry L. Stewart Jeff Hood Arizona Attorney General

SCHROEDER, Chief Judge:

Arizona state prisoner Bradford K. Isley appeals the district court’s dismissal as untimely of his 28 U.S.C. § 2244 petition for writ of habeas corpus. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), state prisoners must file any petition for federal post-conviction relief within one year of the date that the state court judgment against them became final. 28 U.S.C. *1055§ 2244(d)(1)(A). The AEDPA one year limitation period is tolled so long as “a properly filed application for State post-conviction or other collateral review” is “pending.” 28 U.S.C. § 2244(d)(2).

Isley’s actual petition was not filed for more than a year after his conviction became final, but there is a dispute about how long his application for state court relief was “pending.” In Arizona, before filing a petition for relief, a petitioner must first file a “Notice of Post-Conviction Relief’ so that the state guaranteed right to counsel can be enforced. See Ariz. R.Crim. P. 32.4(a). This appeal requires us to decide whether tolling began when Isley filed his “Notice of Post-Conviction Relief’ under Arizona Rule 32.4(a) or when he filed his actual petition for state post-conviction relief. We hold that tolling began when Isley filed the required “Notice.”

The facts are not complex. Isley entered a no contest plea and was sentenced August 19, 1998. His conviction was then final because the plea waived any right to appeal under Arizona law. Seventy-seven days later, on November 4, 1998, Isley filed his “Notice of Post-Conviction Relief’ pursuant to Arizona Rule of Criminal Procedure 32.4. On June 18, 1999, 226 days after he filed the Notice, Isley filed his actual petition for post-conviction relief. It is this 226-day period that is in dispute. The statute of limitations was indisputably tolled between the time he filed the actual petition and January 11, 2001, when the Arizona Supreme Court denied his petition on the merits and the statute began to run again.

Isley moved to federal court and filed a request for appointment of counsel in August 2001. Under federal law, the filing of such a request does not toll the statute of limitations, because such a request is not a petition for relief from a judgment of conviction. Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Isley did not file his actual petition for federal habeas relief until October 22, 2001, 284 days after the Arizona Supreme Court denied relief.

The AEDPA statute of limitations was undeniably running for the 77-day period after his conviction became final and before Isley filed his “Notice of Post Conviction Relief’ in state court, and for the 284-day period after the Arizona Supreme Court denied his petition and before he filed his federal petition. This is a total of 361 days. The limitations period was clearly not running while his actual state court petition for relief was before the Arizona Supreme Court.

The issue is thus whether tolling was triggered earlier, when he filed the required “Notice of PosWConviction Relief.” We must decide whether the state petition for relief was “pending” before the state courts within the meaning of § 2244(d)(2) when the Notice was filed or when the actual petition for relief was filed.

To answer this question, we look first to the reason for the Notice. Arizona guarantees a right to counsel for all first-time petitioners and provides for the appointment of counsel where the petitioner is indigent. See Ariz. R.Crim. P. 32.4(c). Therefore, Arizona’s rules require all petitioners to file a “Notice of Post-Conviction Relief’ to alert the Superior Court that it might need to appoint counsel. That Notice must contain a request for relief from the judgment of conviction. See Ariz. R.Crim. P. Form 24(c). Accordingly, in Arizona, the filing of the Notice is a critical stage of the post-conviction relief proceeding. The post-conviction process cannot go forward until the Notice is filed and the guarantee of counsel fulfilled.

The language-and structure of the Arizona post-conviction rules demonstrate that the proceedings begin with the filing *1056of the Notice. Arizona Rule 32.4(a) provides that a state post-conviction “proceeding is commenced by timely filing a notice of post-conviction relief with the court in which the conviction occurred.” Ariz. R.Crim. P. 32.4(a). For defendants like Isley who plead no contest, Rule 32 notices must be filed within 90 days of sentencing. Id.

With the filing of the Notice, Arizona’s mechanism for post-conviction relief is set in motion. It is only after filing of the Notice that indigent defendants are entitled to have counsel appointed and that the time limitation for filing of the formal petition begins to run. Ariz. R.Crim. P. 32.4(c). The unambiguous language of Rule 32.4(a) compels our conclusion that, because Isley’s Notice was filed in conformity with the pertinent statutory provisions and contained a specific prayer for relief in the form of a request for a new trial, it is sufficient to toll the AEDPA statute of limitations.

The State argues that the Supreme Court’s decision in Garceau, supports the district court’s conclusion. In Garceau, the Court held that a habeas petitioner’s action was not “pending” when he petitioned the district court to exercise its discretion to appoint him counsel to help prepare the petition. 538 U.S. at 208-10, 123 S.Ct. 1398. The Court held that a habeas proceeding is “pending” only after the petitioner has placed before the court an actual request for relief from the judgment of conviction. Id.

Our decision here, however, is consistent with Garceau and in accord with the decisions of other circuits applying it. The First Circuit, in Voravongsa v. Wall, 349 F.3d 1, 4 (1st Cir.2003), held that a Rhode Island prisoner’s state habeas petition was not “pending” within the meaning of 28 U.S.C. § 2244(d)(2) when he filed a request for appointment of counsel. Rhode Island provides that an action for post-conviction relief “is commenced by filing an application ... with the clerk of the appropriate court.” R.I. Gen. Laws. § 10-9.1-3 (2003). The First Circuit held that because the state statute provided that a post-conviction action was commenced with the filing of the application, it was only that filing, containing a specific prayer for relief from judgment, that tolled the AED-PA statute of limitations. Voravongsa, 349 F.3d at 6-7.

Holdings of the Seventh Circuit also lend support to our conclusion that Isley’s state post-conviction proceeding was “pending” upon his filing of the Rule 32.4 Notice. In Ellzey v. United States, 324 F.3d 521 (7th Cir.2003), that court held that a post-conviction petition is “pending” when any document asking for post-conviction relief from a federal sentence under 28 U.S.C. § 2255 is filed with the district court. Id. at 523-24 (citing United States v. Evans, 224 F.3d 670 (7th Cir.2000)). In Ellzey, the Seventh Circuit specifically distinguished its holding from that of the Supreme Court in Garceau. Ellzey, 324 F.3d at 523-24. The. Seventh Circuit explained the distinction by noting that whereas in Garceau the prisoner asked only for help in preparing a petition for relief, the petitioners in Ellzey, and the cases upon which its holding rested, had actually requested relief from the judgment of conviction.

We follow the logic of our sister circuits. Because he properly followed Arizona procedures for commencement of a post-conviction proceeding and placed a request for relief before the appropriate state court by filing the required Notice, we hold that Isley’s state petition was “pending” within the meaning of 28 U.S.C. § 2244(d)(2) and he was entitled to tolling from the date when the Notice was filed. The district court erred in dismissing his petition as untimely.

REVERSED AND REMANDED.