F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 21 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
TESAGER HABTESELASSIE,
Petitioner-Appellant,
v.
JUNITA NOVAK; ATTORNEY No. 99-1081
GENERAL FOR THE STATE OF
COLORADO,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 98-Z-2666)
Submitted on the briefs: *
Tesager Habteselassie, Pro Se.
Ken Salazar, Attorney General of Colorado and Clemmie Parker Engle, Senior
Assistant Attorney General of Colorado, Denver, Colorado, for Respondents-
Appellees.
Before BRORBY, EBEL, and LUCERO Circuit Judges.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause therefore is
ordered submitted without oral argument.
EBEL, Circuit Judge.
Petitioner-Appellant Tesager Habteselassie was convicted of first degree
murder in the Arapahoe County, Colorado District Court in 1991, and was
sentenced to life in prison without parole. On March 28, 1996, the Colorado
Court of Appeals affirmed his conviction, and on October 15, 1996, the Colorado
Supreme Court denied his Petition for Writ of Certiorari. Habteselassie also
sought state post-conviction relief, filing a Rule 35(c) Motion for Post-Conviction
Relief in Arapahoe County District Court on March 10, 1997. The district court
denied the motion on February 4, 1998. Habteselassie then filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District
Court for the District of Colorado on November 30, 1998. The district court
denied Habteselassie’s habeas petition on the ground that the petition was barred
by the one-year period of limitation under 28 U.S.C. § 2244(d)(1). Habteselassie
sought a certificate of appealability to this court, but that motion was denied by
the district court. We granted a certificate of appealability pursuant to 28 U.S.C.
§ 2253(c)(1) to determine if Habteselassie is entitled to the benefit of the tolling
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provision contained in 28 U.S.C. § 2244(d)(2) and if his habeas petition is thereby
rendered timely. For the following reasons, we reverse and remand. 1
As relevant here, a one-year period of limitation applies to an application
for a federal writ of habeas corpus and begins to run from the latest of “the date
on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
[T]he judgment is not final and the one-year limitation period for filing for
federal post-conviction relief does not begin to run until after the United
States Supreme Court has denied review, or, if no petition for certiorari is
filed, after the time for filing a petition for certiorari with the Supreme
Court has passed.
Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999). Because Habteselassie
did not file a petition for certiorari to the United States Supreme Court, the one-
year period of limitation started to run ninety days after October 15, 1996, the
date the Colorado Supreme Court denied his petition for certiorari and his state
1
The Appellee filed a motion to supplement the record with copies of
various documents on file with the Arapahoe County District Court pertaining to
Habteselassie’s case, including a copy of the Motion for Post-Conviction Relief
Pursuant to Rule 35(c) filed on March 10, 1997. In view of the fact that
Habteselassie does not object to the motion and that the Clerk for the Arapahoe
County District Court certified the copies of these documents, we grant the
motion to supplement the record.
Habteselassie filed a motion with this court on February 22, 2000,
requesting that this court order the district court to proceed on his pro se petition
for writ of habeas corpus. Because we are reversing the district court’s dismissal
of Habteselassie’s habeas petition, we decline to rule on Habteselassie’s motion
because it is moot.
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court review was thus completed. See Sup. Ct. R. 13 (indicating that a petition
for a writ of certiorari is timely when it is filed within ninety days following the
entry of judgment). Accordingly, absent any tolling of the limitations period,
Habteselassie would only have had until January 13, 1998, to file a habeas corpus
petition in federal court, and his petition of November 30, 1998, would have been
untimely.
Section 2244(d)(2) allows a federal habeas petitioner to toll this period of
limitations while he seeks state post-conviction relief, however. Section
2244(d)(2) provides: “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 shall not be counted toward any period of limitation under this
subsection.” The district court held that the time during which Habteselassie’s
motion for state post-conviction relief was pending could not be tolled pursuant to
§ 2244(d)(2) because that motion was not “properly filed.” The district court
reasoned that the motion “was not properly filed because the state court
determined that the claims should have been raised on direct appeal.” Had the
court found that Habteselassie’s motion for post-conviction relief in the state
court had been “properly filed,” the period of limitations in Habteselassie’s case
would have been tolled for 331 days, the period that his motion was pending in
state court, and Habteselassie would have had until December 10, 1998 to file a
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timely federal habeas petition. Because Habteselassie filed his federal habeas
petition ten days before this deadline, whether his petition was timely turns on the
definition of “properly filed” under § 2244(d)(2) as applied to his state petition
for post-conviction relief.
Congress did not define the attributes of a “properly filed application”
under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), see
Villegas v. Johnson , 184 F.3d 467, 470 (5 th
Cir. 1999), and the meaning of this
phrase is a question of first impression in this circuit. 2
We believe that a
2
This court has considered whether federal habeas petitioners’ state post-
conviction motions were properly filed for purposes of § 2244(d)(2) in a number
of unpublished decisions. See Martin v. Gibson, No. 98-7184, 1999 WL 798088,
at **1 (10th Cir. Oct. 7, 1999) (unpublished) (finding that a state post-conviction
motion was not properly filed where it was “rejected by the state district court as
procedurally barred and dismissed on appeal for non-compliance with rules
governing appeals”); Thorpe v. Soares, No. 99-1013, 1999 WL 314636, at **2
(10th Cir. May 19, 1999) (unpublished) (finding that petitioner’s state post-
conviction motion was not properly filed because it was untimely for procedural
default); Maloney v. Poppel, No. 98-6402, 1999 WL 157428, at **1 (10th Cir.
March 23, 1999) (unpublished) (finding that state motion for post-conviction
relief was not properly filed at the time petitioner delivered the motion to prison
authorities because Oklahoma does not follow the “mailbox rule” of Houston v.
Lack, 487 U.S. 266 (1988)).
Although this court also addressed the meaning of § 2244(d)(2) in Hoggro
v. Boone, 150 F.3d 1223 (10 th Cir. 1998), that case did not consider the issue
before us. Rather, Hoggro held that tolling for a properly filed state post-
conviction motion should not continue during the additional time that the
defendant appealed the denial of relief to the state appellate court when the
appeal was not timely filed and hence was not a properly filed appeal. See id. at
1226 n.4; see also Rhine v. Boone, supra at 1155 (holding that a state post-
conviction petition is “pending” only while it is under consideration in the state
(continued...)
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“properly filed” application is one filed according to the filing requirements for a
motion for state post-conviction relief. These requirements may include: (1) the
place and time 3
of filing; (2) the payment or waiver of any required filing fees;
(3) the obtaining of any necessary judicial authorizations that are conditions
precedent to filing, such as satisfying any filing preconditions that may have been
2
(...continued)
courts and that the time to petition for certiorari to the United States Supreme
Court is not tolled under § 2244(d)(2)); Barnett v. Lemaster, 167 F.3d 1321, 1323
(10 th Cir. 1999) (“We conclude the term [“pending”] must be construed . . . to
encompass all of the time during which a state prisoner is attempting, through
proper use of state court procedures, to exhaust state court remedies with regard
to a particular post-conviction application.”).
3
We recognize that issues pertaining to the timeliness of a prisoner’s
application for state post-conviction relief are not homogenous. In some
instances, questions of timeliness under state law may require an inquiry into the
merits of the petition, see Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.
2000) (finding that application for state post-conviction relief is not properly filed
where state court concluded that prisoner’s application was procedurally barred
by the two-year statute of limitations attached to Fla. R. Crim. P. 3.850, which
allows an application to be filed more than two years after the prisoner’s
conviction became final in some circumstances), while in other cases the question
of timeliness can be determined purely by reference to the filing date, see Hoggro,
150 F.3d at 1226 n.4 (finding that federal habeas petitioner was not entitled to
tolling for time while motion for state post-conviction relief was pending on
appeal where state court of appeals dismissed the appeal as untimely because it
was filed more than thirty days after the decision of the state district court).
While Hoggro clearly requires federal habeas petitioners to comply with state
filing requirements of the latter type in order for their federal petitions to be
considered “properly filed,” we believe the question of whether a motion for state
post-conviction relief should be deemed not properly filed where a state court has
assessed the merits of the motion for state post-conviction relief in concluding
that it was untimely presents a more difficult question. We need not resolve this
issue in the present case, however.
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imposed on an abusive filer ; and (4) other conditions precedent that the state may
impose upon the filing of a post-conviction motion. By contrast, affirmative
defenses that preclude a court from granting relief on the merits, as opposed to
pure filing requirements, require analysis in some manner of the substance of the
claims set forth by the petitioner and do not prevent a motion from being
“properly filed” for purposes of § 2244(d)(2). Substantive impediments to relief
of this nature include prohibitions against the filing of successive or abusive
petitions, the requirement that claims be brought on direct appeal if possible, and
the judicial doctrine of res judicata.
The definition of “properly filed” adopted by this court is consistent with
the view of the majority of circuit courts to have considered this question,
although these courts have articulated the definition in varying ways. 4
See
Bennett v. Artuz , 199 F.3d 116, 123 (2d Cir. 1999), cert. granted , 2000 WL
122154 (U.S. Apr. 17, 2000) (No. 99-1238) (“We . . . construe ‘properly filed’ to
mean simply that an application for state post-conviction relief recognized as such
4
Other circuit courts have also construed “properly filed,” but the holdings
of these cases do not bear directly on the issue before this court. Dictado v.
Ducharme , 189 F.3d 889, 892 (9th Cir. 1999) (holding that a state post-conviction
petition that was determined by the state court to be procedurally barred because
it was untimely and successive did not toll the one-year period of limitation under
AEDPA); Tinker v. Hanks , 172 F.3d 990, 991 (7 th Cir. 1999) (finding that an
application for leave to file a state post-conviction proceeding is not a “properly
filed application” under § 2244(d)(2)) .
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under governing state procedures has been filed.”); Villegas , 184 F.3d at 470 &
n.2 (“[W]e hold that a ‘properly filed application’ for § 2244(d)(2) purposes is
one that conforms with a state’s applicable procedural filing requirements. . . . By
procedural filing requirements, we mean those prerequisites that must be satisfied
before a state court will allow a petition to be filed and accorded some level of
judicial review.”); Lovasz v. Vaughn , 134 F.3d 146, 148-49 (3d Cir. 1998) (“We
believe that ‘a properly filed application’ is one submitted according to the state’s
procedural requirements, such as the rules governing the time and place of filing.
. . . [Federal] district courts should not inquire into its merits.”); see also
Patterson v. Director, Virginia Dep’t of Corrections , 36 F. Supp. 2d 317, 320
(E.D. Va. 1999) (“[A] ‘properly filed’ petition is ‘one submitted according to the
state’s procedural requirements, such as the rules governing time and place of
filing,’ and . . . this is so without regard to the merits of the petition.” (quoting
Lovasz , 134 F.3d at 147)); Souch v. Harkins , 21 F. Supp. 2d 1083, 1086-87 (D.
Ariz. 1998) (“[T]he state petition may have constituted a ‘properly filed
application’ for tolling purposes even if the superior court had dismissed it solely
on the ground of procedural default. The majority of courts analyzing the
meaning of ‘properly filed application’ have interpreted the phrase to encompass
all applications submitted in compliance with basic state filing requirements, such
as the rules governing the time and place of filing.”).
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We decline to follow the minority view that construes § 2244(d)(2) to mean
that a state post-conviction petition is not properly filed if it is ultimately
determined to be procedurally barred or otherwise is determined to be frivolous or
without merit. See Weekley v. Moore , 204 F.3d 1083, 1086 (11th Cir. 2000)
(finding that state post-conviction motions dismissed by the state court as
successive were not “properly filed”). Incorporating any such substantive
requirement into § 2244(d)(2) would have unfortunate consequences. State
prisoners wishing to pursue federal habeas relief would be compelled to file their
federal petitions within one year after their state conviction becomes final, even if
their state post-conviction motions were still pending, in order to guarantee the
timeliness of their petitions. A state petitioner could not risk the possibility that a
properly filed state post-conviction petition might later be thrown out because of
the affirmative defense of procedural bar, thereby leaving the petitioner with no
tolling protection during the pendency of that state petition. 5
Such a result
5
Under such an interpretation of § 2244(d)(2), a state court’s finding that
the prisoner’s motion for state post-conviction relief is procedurally barred would
eliminate the prisoner’s right to federal review on habeas if the state court
dismissed the motion for state post-conviction relief on grounds of procedural bar
more than one year after the prisoner’s conviction became final. Under these
circumstances, the prisoner would never have the opportunity to have a federal
court review the state’s finding of procedural bar. Cf. Hughes v. Irvin , 967 F.
Supp. 775, 779 (E.D.N.Y. 1997) (“The writ of habeas corpus would be
emasculated if the factual determination of a state court could preclude a
petitioner’s access to federal court to challenge that very finding.”).
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undermines Congress’ desire in enacting the AEDPA to encourage exhaustion of
state remedies. See 28 U.S.C. § 2254(b)(1).
In defending a state conviction in a federal habeas action, states often argue
that the petition is procedurally barred under state law and that, as a result, there
is an adequate and independent state law basis for the conviction. Where such an
argument is made to a federal district court before the state court has had the
opportunity to resolve the question of procedural bar, the federal district court is
placed in the awkward position of either: (1) holding the habeas petition in
abeyance until the state court has adjudicated any issues related to procedural bar;
(2) dismissing the petition without prejudice; or (3) deciding the issue of state
procedural bar prior to the state court’s determination of the question. By
construing the phrase “properly filed” to apply only to filing requirements, as
opposed to defenses that must be substantively considered, federal district courts
are spared the need to decide among these unsatisfactory options. 6
This approach
6
The first option of holding the federal habeas petition in abeyance is
undesirable because it keeps a parallel federal case open for an indefinite period
of time and forces the defendant into a prophylactic, and perhaps unnecessary,
duplicative filing. The second option of dismissing the federal habeas petition is
inadvisable because it needlessly utilizes the time and attention of a federal court.
Moreover, this option leaves a federal habeas petitioner vulnerable to a statute of
limitations defense if the state court ultimately dismisses his state petition on
grounds of procedural bar after the one-year period of limitation under AEDPA
has run. The third option of requiring the federal district court to address the
state’s assertion of procedural default or other merits-based defenses before the
(continued...)
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has the advantage of being much easier to administer, as it avoids many complex
and often disputed issues at the statute of limitations stage of the inquiry. In
addition, it does not denigrate the state’s ultimate ability to rely on its own
procedural rules to assert procedural bar, since that defense can always be
considered fully when the federal district court addresses the merits of the federal
habeas petition.
Turning to the question of whether Habteselassie’s motion was “properly
filed” for purposes of § 2244(d)(2), we hold that a state petition that is dismissed
on the basis of procedural default does not render the petition not “properly
filed,” and we find that the district court therefore erred in dismissing
Habteselassie’s habeas petition as untimely. The fact that the Arapahoe County
District Court denied Habteselassie’s motion on the ground that the issues raised
in the motion should have been raised on direct appeal does not render
Habteselassie’s motion improperly filed under § 2244(d)(2). Habteselassie’s
motion for post-conviction relief conformed with Colorado’s basic procedural
rules governing the filing of such a motion. 7 See Colo. R. Crim. P. 35(c)(2)
6
(...continued)
state has considered such arguments would violate AEDPA’s principles of
federalism and comity and may needlessly embroil the federal district court in
complicated state law questions and factual questions that are better addressed in
the first instance by state courts.
7
Our conclusion that Habteselassie’s motion met the basic procedural
(continued...)
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(providing that “every person convicted of a crime is entitled as a matter of right
to make application for post-conviction review”); Colo. R. Crim. P. 35(c)(3)
(providing that the motion may be filed in the court which imposed the
petitioner’s sentence). We therefore conclude that Habteselassie’s motion was
“properly filed” under § 2244(d)(2), that the AEDPA period of limitation in
Habteselassie’s case was tolled during the pendency of his state motion for post-
conviction relief, and that Habteselassie’s § 2254 habeas petition was therefore
timely.
As a final matter, the Appellee suggests that Habteselassie’s “Motion for
Post-Conviction Relief Pursuant to Rule 35(c)” does not qualify as an
“application for State post-conviction or other collateral review” under §
2244(d)(2), regardless of whether it was “properly filed.” The Appellee reasons
that Habteselassie sought appointment of new counsel in the motion. However,
the record reflects, and the Appellee concedes, that the state court treated
Habteselassie’s motion as a motion for post-conviction relief. For this reason, we
7
(...continued)
requirements for the filing of such a motion is corroborated by the Appellee’s
brief which only asserts that the motion was improperly filed because the claims
should have been raised on direct appeal. The respondent also suggests that the
Arapahoe County District Court should have actually denied the motion on the
ground that Habteselassie had raised the identical arguments on direct appeal and
that a post-conviction motion cannot be used to relitigate matters resolved in an
earlier appeal. As we have stated in the text of this opinion, this defense would
not make Habteselassie’s motion improperly filed under § 2244(d)(2).
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find that his state motion was an “application for State post-conviction or other
collateral review” within the meaning of § 2244(d)(2).
We REVERSE the district court’s order dismissing Habteselassie’s petition
as time-barred and REMAND this case to the district court for further
proceedings.
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