dissenting.
I do not favor dissenting from my colleagues, but the three of us have differing views on the resolution of this case. I would affirm the decision of the district court in dismissing the petition for a writ of habeas corpus under 28 U.S.C. § 2254 as untimely.
No facts are in dispute in this case. As Judge Gilman’s opinion relates, when the United States Supreme Court denied certiorari on October 5, 1998, it initiated the one-year statute of limitations for petitioning for federal habeas corpus relief under 28 U.S.C. § 2244(d)(1). If the Ohio Supreme Court had not entered its Glenn order on November 30, 1998, Keenan would not have any colorable claim for equitable tolling. However, the Ohio Supreme Court entered the order as quoted by Judge Gilman. Nevertheless, after Keenan filed his state petition for post-conviction relief (PCR), the Ohio Court of Appeals found that the PCR petition was untimely and the statute was not tolled. Moreover, as Judge Gilman’s opinion states, the Ohio Supreme Court denied a discretionary appeal in State v. Keenan, 92 Ohio St.3d 1429, 749 N.E.2d 756 (Ohio 2001)(table decision), on this very question. If the Ohio Supreme Court intended to *427extend the time within which the petition for PCR could have been filed, that would have been the opportunity to consider the issue. In this ease, the Ohio Court of Appeals decided that the application for PCR was not properly filed because it was untimely. As the majority aptly quotes, “[A]n application is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example ... time limits upon its delivery.” Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). In Keenan’s case, such a time limit has resulted in his PCR petition’s being untimely and, therefore, not properly filed. If that petition was not properly filed, his federal § 2254 petition cannot possibly meet the federal one-year statute of limitations, as there was no tolling of the time period from the commencement of the federal limitations period in October 1998.
The majority opinion correctly quotes from King v. Bell, 378 F.3d 550, 553 (6th Cir.2004), that equitable tolling under AEDPA is permissible, although rare. In that case, two of the judges who were on this panel concurred that equitable tolling was correct because the State had agreed to allow the petitioner to file his petition within fifteen days after certain transcripts were made available. After the petitioner filed within the fifteen days, the State then asserted that the statute of limitations had run. The significant difference between the King case and the case at bar is that in King, the equitable tolling was determined by the federal court to allow the late filing in federal court. In the case at bar, we are asked to toll the statute of limitations under Ohio law, after the Ohio Court of Appeals has determined that the petition was untimely.1 As the majority correctly observes, Keenan had over ten months from the date of the Glenn order of November 30, 1998, within which to file for habeas corpus relief in federal district court. He declined to do so. Since Ohio’s courts found that Keenan’s petition was not properly before them, this court should be bound by that finding that the statute of limitations was not tolled.
I would decline Keenan’s implied invitation to second guess the Ohio court’s interpretation of Ohio- law. I suspect that the Glenn order was entered by the Ohio Supreme Court in order to effect the stay of the execution order which'had just been entered. It allowed Keenan to file a petition for PCR within the six months without having to apply for a second stay of his execution. In an analogous case with-regard to Ohio’s timeliness requirements, we stated that
[principles of comity require federal courts to defer to a state’s judgment on issues of state law and, more particularly, on issues of state procedural law. Because state courts are the final authority on state law, federal courts must accept a state court’s interpretation of its statutes and its rules of practice.
Israfil v. Russell, 276 F.3d 768, 771 (6th Cir.2001) (citations omitted); see also Vroman v. Brigano, 346 F.3d 598, 603 (6th Cir.2003).
Moreover, Keenan failed to raise the equitable tolling issue before the district court until he filed a surresponse memorandum. It should therefore be deemed waived. See Scott v. Collins, 286 F.3d 923, 927 (6th Cir.2002). However, even if not waived, Keenan has failed to show what *428circumstances were beyond his control that resulted in missing the deadline, except for blaming his counsel. Attorney error is generally not a legitimate basis for equitable tolling. See Jurado v. Burt, 337 F.3d 638, 644-45 (6th Cir.2003). While the concurring opinion from Judge Merritt observes that this tenet conflicts with decisions from other circuits, any ‘persuasive cites are irrelevant due to our decision in Jurado. There are no circumstances surrounding this case which would take it out of this general rule. See Rouse v. Lee, 339 F.3d 238, 254 (4th Cir.2003)(en banc)(after extensive review and inquiry, court found that differing standards should not apply to capital cases in enforcing the statute of limitations for collateral review). The concurring opinion criticizes the “maze” .of Ohio procedural rules and suggests this is grounds for equitable tolling. However, it is up to the Ohio legislature to amend or revise the “maze,” if it thinks there, is confusion. Lawyers wade through confusing statutes and rules on a daily basis. Just ask a tax lawyer who deals with the Internal Revenue Code. In our. federal system, each state sets up its own procedure for such post-conviction revievy, and the members of the bar and petitioners are expected to keep up with it.
The concurring opinion quotes some language from the decision in Lambert v. Warden, 81 Fed. Appx. 1 (6th Cir.2003). However, “[i]t is well-established law in this circuit that unpublished cases are not binding precedent.” Bell v. Johnson, 308 F.3d 594, 611 (6th Cir.2002). Moreover, in Lambert, the court was dealing with the operation of Ohio App. R. 26(B), which is not in issue here.
Therefore, I find no error by the district court in this case. I would affirm.
. The majority opinion correctly relates that the application of equitable tolling is a question of federal law. But if we are to follow the rule that "federal courts sparingly bestow equitable tolling,” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir.2000), we should at least consider that the Ohio courts have looked at this issue and found it to be merit-less.