concurring in the remand but dissenting from the failure to allow the case to go forward on the merits of the constitutional claims.
Thomas Keenan, a petitioner condemned to death in Ohio, brings his first habeas case in federal court. He presents a number of plausible claims, including an actual innocence claim. By stretching and stitching together procedural default and statutory limitations arguments, the State seeks to forfeit all of Keenan’s constitutional claims so that he will now be executed without federal review of any kind.
The State treats as a state procedural default the condemned prisoner’s state ha-beas petition filed on March 26, 1999. As a result, counsel for the State asks the court to refuse to toll the running of the one-year, federal limitation period under 28 U.S.C. § 2244(d)(2). There are four reasons that it is wrong to procedurally default as “improperly filed” the state post-conviction petition and decline to toll the running of the federal statute of limitations.
First, immediately after the U.S. Supreme Court denied certiorari, the state Supreme Court in its October 1998 order expressly “granted a period of six months beginning October 23, 1998, and ending April 23, 1999, to allow appellant an opportunity to file a petition for post-conviction relief.” The petition was then filed five months later, a month before the time was up. It is difficult to understand how the Ohio Supreme Court could have been any plainer in setting out the time “to allow” a condemned prisoner to file “for post-conviction relief’ after the U.S. Supreme Court denied certiorari. “You have six months to file.” That is what the Ohio Supreme ■ Court said. The reasonable expectation of a lawyer reading the order would be that it allows six month’s time for filing. The State refuses to apply this plain language and would refuse to allow the federal tolling statute to operate because it says that the time allowed for filing the state petition .ran out long before the U.S. Supreme Court denied certiorari and long before the state Supreme Court entered its order “to allow” the filing of the state petition. So-the two years the petitioner waited in the Ohio courts for his petition to be decided cannot be used or counted to toll under the federal statute. *423The State Attorney General argues that in order to toll the statute the petitioner should have filed 8 months before the state death penalty judgment became final in the Ohio Supreme Court and 16 months before it became final after the U.S. Supreme Court denied certiorari. The condemned prisoner will be executed without review of his federal constitutional claims because he complied with the express language of the state Supreme Court allowing him six months to file.
Upon remand, by this Court’s opinion, one essential question for the District Court is whether Keenan was relying on the Supreme Court’s order when he opted to file his state post-conviction petition prior to his federal habeas petition. I find it apparent that the Ohio Supreme Court order plainly implied that Keenan had six months to pursue state post-conviction relief rather than six months to pursue federal habeas relief. First, the court’s order used the term “petition for post-conviction' relief,” which is the very title of the state collateral attack as put forth in Ohio Rev.Code Ann. § 2958.21. The court was clearly referring to a state post-conviction petition rather than post-conviction relief generally or a federal ha-beas petition. Second, when the Glenn order was issued in October 1998, Keenan had just over 10 months left to file his federal habeas petition. Certainly the Ohio Supreme Court was not suggesting that he had only six months to file his federal habeas petition. The time frame clearly referred to state post-conviction relief. Thus, it is easy to see why Keenan, relying on the Supreme Court order, filed a state post-conviction petition in state court within six months, rather than a federal habeas petition. As Keenan almost certainly relied on the Ohio Supreme Court’s order, this court should equitably toll the limitations period as Keenan had no actual notice that this filing would be improper and any ignorance regarding any forfeiting effect was reasonable in light of the Supreme Court order. The majority of this court does not find sufficient evidence in the record to demonstrate that Keenan actually relied upon the natural implication of the Ohio Supreme Court’s order. The lower court on remand, therefore, should equitably toll the limitations period if the record demonstrates that Keenan relied on the Supreme Court order in proceeding to state court first..
Second, despite the plain English of the Ohio Supreme Court’s order, the State would procedurally default the tolling claim, and hence all other federal claims, by saying simply that the Ohio Court of Appeals opinion dismissing the state petition on “jurisdiction” grounds controls our decision on tolling even though that court did not mention or purport to interpret the federal tolling statute or even know that its action would deny federal review. The State reads the Ohio court’s refusal to hear the state post-conviction petition as forfeiting all federal claims because it used the “jurisdiction” talisman rather than dismissing on other grounds. The Ohio Court of Appeals ruled sua sponte, without argument or briefing, that Keenan’s state claims were late after two years of litigation in state court. That ruling should not control our tolling decision. Broad delegation to state courts of the authority to control access to federal habe-as review in this way effectively suspends the writ of habeas corpus and prevents our review of the constitutionality of state death sentences. Moreover, we should permit equitable tolling now because had the Ohio court advised Keenan of its “jurisdictional” dismissal within six months, he could have filed his petition within the one year period, and tolling would not have been an issue at all. In addition to *424relying on the Supreme Court’s Glenn order, Keenan also relied on the state trial court’s implicit .conclusion that, his post-conviction petition was properly filed. The State made no objection, and Keenan was entitled to believe throughout the lower state court proceedings that he had not made a “jurisdictional” or other mistake that would prevent the tolling of the federal statute of limitations.
Third, the Ohio legislature passed the new Ohio collateral review statute on capital punishment — the one construed by the Ohio Court of Appeals — in order to require the death penalty prisoner to file his petition within six months of the date of filing of the trial record in the Ohio Supreme Court. (See the Appendix to this opinion for a time line under this statute.) Under this statutory scheme, the statute of limitations on collateral review will almost always run before the prisoner’s direct appeal is concluded. In the present case, the collateral review statute ran 16 months before the death sentence in this case became final when the U.S. Supreme Court denied certiorari. This system requires post-conviction counsel to file claims of ineffective assistance of trial and appellate counsel, prosecutorial suppression of exculpatory evidence, newly discovered evidence and similar claims even before Ohio’s Supreme 'Court considers the case on appeal and before trial and appellate counsel are replaced by post-conviction counsel.1 If not so filed, the claims are defaulted and tolling defeated, according to the state.
The result of this state statutory scheme, as it interlocks with the various federal forfeiture rules, is that one or more of the federal forfeiture rules can always be stretched to bar consideration on the merits of some or all of the prisoner’s federal claims. For example, in the present case, assuming Keenan filed his state petition within the 180 day period and it was dismissed, Keenan would have been required to file his federal petition on his collateral claims denied in state court before his claims on direct review were final. These direct review claims when filed would then have to be treated as second or successive claims forbidden by AEDPA.2 On the other hand, if in some cases the Ohio state collateral review process should end after the death sentence becomes final on direct review, the federal issues presented for collateral review would come later. They would become a second petition. This Ohio inversion, together with AEDPA’s one-year statute of limitations, the State’s strict construction of tolling, and the successive petition rule, further complicates an already-complicated process. The whole system becomes a trap for the unwary, a maze designed to dispatch the capital defendant to the executioner’s block without federal review. *425Such a system is like a nightmare, except its consequences are lethal.
Fourth, either no lawyer should be faulted for not being able to work through this maze, in which ease surely equitable tolling should apply, or the ignorance of counsel is the reason. After procedurally defaulting the federal tolling period because counsel for Keenan did not file the state post-conviction petition 16 months before the death verdict was finally final, the State Attorney General’s office then argues against the application of equitable tolling because attorney error is said not to be a legitimate basis for equitable tolling. This argument is wrong. See Baldayaque v. United States, 338 F.3d 145, 152-53 (2d Cir.2003), and Nam v. Frank, 264 F.3d 310, 320 (3d Cir.2001), rev’d on other grounds, Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002), both of which agree that the actions of counsel can supply a basis for equitable tolling. Equitable tolling should save the petition either because the Ohio statutory maze created a situation that no sane lawyer could figure out or because an effective lawyer would have found some solution that escapes me—one or the other.
In Lambert v. Warden, a comprehensive opinion at 81 Fed.Appx. 1, Judge Boggs set out his understanding of the sequence of review of criminal judgments, in Ohio:
Direct review immediately follows trial, generally is constrained by tight, non-waivable time limits and concludes with finality of judgment. Collateral review focuses on the adequacy of the trial and direct review, rather than the underlying merits of the original action. As such, it necessarily follows direct review .... The structure of the AEDPA statute of limitations meshes with this understanding of the. distinction betweén direct and collateral review .... Of course, alloiuing the statute of limitations to run out while the prisoner is still pursuing state post-conviction remedies combined with AEDPA’s exhaustion requirement would be manifestly unjust. .Therefore, AEDPA tolls the statute of limitations during state post-conviction proceedings. 28 U.S.C. § 2244(d)(2). Again, the language of the provision agrees with the properties of collateral attacks. As collateral attacks follow direct review, and therefore the start of the limitations period, it makes sense to speak of tolling the period. (Emphasis added.)
The opinion discusses the normal way the legal profession thinks about the sequencing of review in criminal cases. A lawyer should not be expected to anticipate that he will be thrown out of court on statute of limitations grounds when he has. what would appear to be a reasonable state post-conviction proceeding pending. If Judge Boggs and the two other members of the panel in the Lambert case think that this is the way the Ohio system works (and Lambert is an Ohio case), then it is hard to expect a lawyer to foresee the consequences that the State Attorney General would apply in this case. Those statements in Judge Boggs’ opinion are part of a comprehensive treatment of Ohio post-conviction law. And even after a diligent study of Ohio post-conviction law,' Judge Boggs and the panel did not foresee that the sequencing of Ohio’s review process would require the post-conviction process to occur before the direct appeal is completed.
Conclusion
In light of (1) the plain language of the Ohio Supreme Court in Keenan’s case allowing the filing of the state habeas petition, (2) the action of the Ohio Court of Appeals requiring the filing to occur 16 months before the capital judgment became final, (3) the forfeiture puzzle created *426by the interaction of the state timing statute in death cases, the federal one-year limitations statute and the second or successive petition rule, or (4) the error of counsel in preserving Keenan’s right to one round of federal habeas review, I would toll the running of the statute of limitations — either on legal or equitable grounds — and allow this first federal habe-as petition to go forward on the merits.
APPENDIX
The relevant dates for this matter are as follows:
_Event _Date_Location in the Record_
Trial Court Journalized Keenan’s Sentence (triggers 120 day deadline for requesting new trial) 5/16/94 Doc. R. 41, Apx. at Vol. 1, p. 379; 6th Cir. Apx. at 100.
Ohio Supreme Court received the , record on direct appeal (triggers 180 day deadline for state post-conviction action) 11/6/96 May 6, 1997 Doc. R. 43, Apx. at Vol.III, pp. 1, 51; 6th Cir. Apx. at 105, 106. See also Doe. R. 20, Exhibit B; 6th Cir. Apx. at 97.
Ohio Supreme Court’s Decision 2/25/98 See State v. Keenan, 81 Ohio St.3d 133, 689 N.E.2d 929 (1998).
United States Supreme Court denies certiorari on direct appeal (triggers 365 day deadline for filing federal habeas corpus petition) 10/5/98 L.Ed.2d 119 (1998). Doc. R. 43, Apx. at Vol. III, p. 362; 6th Cir. Apx. at 107. See also Keenan v. Ohio, 525 U.S. 860, 119 S.Ct. 146, 142
Post-Conviction Petition/Motion for New Trial filed in Ohio trial court 3/26/99 Doc. R. 44, Apx. at Vol. IV, p. 1; 6th Cir. Apx. at 111.
Eighth District Court of Appeals holds that Keenan’s Posl^Conviction Action is Untimely 2/1/01 Doc. R. 44, Apx. at Vol. IV, p. 322; 6th Cir. Apx. at 118. See also State v. Keenan, 2001 WL 91129 (8th Dis.Ohio 2001), 2001 Ohio App. LEXIS 356.
Ohio Supreme Court denies jurisdiction on motion for new trial 6/27/01 Doc. R. 44, Apx. at Vol. IV, p. 393; 6th Cir. Apx. at 127. See also State v. Keenan, 92 Ohio St.3d 1429, 749 N.E.2d 756 (2001).
Keenan files his habeas corpus petition 11/21/01 Doc. R. 11; 6th Cir. Apx. at 14.
. The Ohio statutory process in death penalty cases makes the American Bar Ass’n Guidelines for the Appointment of Counsel in Death Penalty Cases §§ 1.1 and 15.1 (2003) practically impossible to meet. The ABA standards contemplate the appointment of new or separate counsel at the habeas stage of the case. If the post conviction and federal habe-as stages of the case must begin before final judgment, the appointment of new counsel becomes difficult to manage. It did not occur in the present case until after the direct appeal and state habeas proceedings were over. By then, according to the majority, the un-tolled federal statute had run and Keenan was foreclosed from federal review.
. AEDPA contemplates three stages of review followed in sequence: "direct review,” then "State post-conviction” review, then federal habeas review, 28 U.S.C. §§ 2244(d), 2254. That is the historical tradition for sequencing review. The Ohio statute reverses the sequence of the first two stages and makes § 2244(d) impossible to apply in the normal way.