Daniel Siebert v. Donal Campbell

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR TH E ELEV ENTH C IRCUIT U.S. COURT OF APPEALS
________________________ ELEV ENT H CIR CUIT
June 23, 2003
THOMAS K. KAHN
No. 02-13685 CLERK
________________________
D. C. Docket No. 01-01097-CV -A-E

DAN IEL S IEBE RT,

Petitione r-App ellant,

versus

DON AL C AM PBE LL, C ommis sioner,
Alabam a Depa rtment o f Corre ctions,
CHA RLIE E. JON ES, W arden,
WILLIA M H. PR YOR, JR ., The Attorney
Gener al of the S tate of A labama,

Respo ndents- Appe llees.

________________________

No. 02-15890
________________________
D. C. Docket No. 01-02323-CV -J-E

DAN IEL S IEBE RT,

Petitione r-App ellant,

versus

DON AL C AM PBE LL, C ommis sioner,
Alabam a Depa rtment o f Corre ctions,

Respo ndent-A ppellee.
 ________________________

Appeals from the United States District Court
for the Northern and Middle District of Alabama
_________________________
(June 23, 2003)

Before TJOF LAT, BA RKET T and WIL SON, C ircuit Judges.

PER CURIAM:

Daniel Siebert appeals from the dismissal of his petitions for habeas corpus

under 28 U.S.C. § 2254. Although his case reaches us some eleven years after he

first soug ht collatera l review of his co nviction s and sen tences of death, the courts

have to date determined only that he is subject to procedural bars and therefore

have ne ver allow ed the merits of his claims to c ontrol. 1 The dis trict courts

dismissed Siebert’s petitions on the ground that they were untimely under the one

year statute of limitatio ns establis hed by th e Anti-T errorism and Ef fective D eath

Penalty Act of 1996 (“AEDPA ”), now codified at 28 U.S.C. § 2244(d)(1). Siebert

had arg ued that th e one-ye ar deadlin e did no t bar his p etitions be cause a se parate

1
Alabama’s courts commented on the merits of Siebert’s claims, but only as an
alternative ground of decisions that also held his petitions untimely. See Siebert v. State, 778
So. 2d 842, 846 (Ala. Crim. App. 1999) (describing ruling of Lee County Circuit Court as
“disposing of the claims in the petitions as procedurally barred, but nonetheless also disposing of
these claims on their merits”); id. (commenting that “Siebert received a fair trial”). It cannot be
said that the courts allowed the merits to control in taking this approach.

2
AEDPA provision, 28 U.S.C. § 2244(d)(2), tolled the limitations period for the

time during which his “properly filed” applications for post-conviction relief were

pending in the Alabam a courts.

Because state courts had held in these proceedings that Siebert had missed

the expiration of Alabama’s own post-conviction statute of limitations, the district

courts concluded that Siebert’s state petitions were not “properly filed” and that

AEDPA ’s tolling provision thus did not apply. The question before us is therefore

whether Siebert’s Alabama petitions, which were accepted by the courts but

ultimately found to have been filed late, should be considered “properly filed”

within the m eaning of A EDP A’s tolling pro vision and th e Suprem e Court’s

interpretation of that term in Artuz v . Benne tt, 531 U.S. 4 (2000).

BACKGROUND

Siebert was tried in two separate prosecutions, one in Talladega County (for

the murder of Linda Jarman) and one in Lee County (for the murder of Sherri

Weathers and her two minor sons). He was found guilty of all charges, and at the

end of each of his trials he was sentenced to death, twice. Siebert appealed his two

convictions and sentences to the Alabama Court of Criminal Appeals, which issued

separate d ecisions a ddressin g differe nt challen ges Sieb ert had ra ised in eac h case.

The Alabama Supreme Court subsequently denied relief, publishing its own

analysis o f many o f Sieber t’s claims in the Lee C ounty ca se, Ex parte Siebert, 555

3
So. 2d . 780 (A la. 1989 ), as well a s a summ ary statem ent in the T alladega C ounty

case announcing that it had found “no error or defect in the proceedings that

adversely affected the rights of the defendant.” Ex parte Siebert, 562 So. 2d 600

(Ala. 1990). Siebert petitioned the United States Supreme Court for certiorari but

was denied review separately in each case in 1990.

In 199 2 Siebe rt filed the tw o petition s that are re levant he re, challen ging his

Lee County and Talladega County convictions and sentences separately in each

county’s circuit cou rt under Rule 32 of the A labama R ules of C riminal P rocedu re.

The state responded with separate answers in the months following each of

Siebert’s petitions, conceding that Siebert was entitled to an evidentiary hearing on

his claim that counsel had provided ineffective assistance. The petitions were

consolidated for an evidentiary hearing in the Lee County Circuit Court. After

Siebert filed amendments to both petitions on March 29, 1995, the trial court

commenced hearing evidence on April 3, 1995.

The next day, the state asserted for the first time that Siebert’s applications

were barred because he had failed to meet the two-year statute of limitations then

generally applicable to most post-conviction claims in Alabama.2 After continuing

to take evidence on April 4 and 5, as well as on September 26, 1995 and January

2
The statute of limitations – which is actually codified not by statute but by an Alabama
Supreme Court rule – was later shortened to one year by an order effective August 1, 2002.

4
21, 1997, the circuit court adopted the state’s proposed, 87-page memorandum

opinion as its final judgment, denying Siebert relief on a variety of substantive and

proced ural gro unds. A mong the man y finding s of the cir cuit cour t was its

determination that relief was precluded by R ule 32’s statute of limitations.

The Co urt of Crim inal Appeals affirmed, find ing no me rit in Siebert’s

argument that the two-year statute of limitations set forth in Ala. R. Crim. P.

32.2(c) must be raised as an affirmative defense in the state’s first responsive

pleading . Siebert v . State, 778 S o. 2d 84 2, 847- 48 (19 99). The court distinguished

two earlier Alabama cases holding the state to have waived the limitations defense,

reading them as addressing only the circumstance in which the state raises the

defense for the fir st time on appeal. Id. Noting that Sieb ert had b een allow ed to

amend his petitions on March 29, 1995, five days before the evidentiary hearing,

the court reasoned that the state was properly allowed to do the same within a

reasona ble time. Id. at 848 (adopting portion of circuit court’s opinion).

On Septemb er 14, 2001, Siebert filed two different fed eral habeas petitions,

one in th e Midd le and on e in the N orthern District o f Alaba ma. Bo th district co urts

held his petitions untimely under AEDPA because they were not filed within a year

of that statute’s effective date. The district court decisions, although accepting the

premise that a state tim e bar mu st be firm ly establish ed and r egularly f ollowe d to

render a late petition improperly filed, nonetheless rejected Siebert’s claim that the

5
Alabama statute of limitations failed to meet this standard. The district court

decisions also d eclined to apply th e doctrine of eq uitable tolling on S iebert’s

behalf. Both district courts thereafter granted Siebert certificates of appealability.3

DISCUSSION

Under 28 U.S.C. § 2244(d)(1), persons in custody pursuant to a judgment of

a state court may file petitions for habeas corpus within one year of any of four

dates specified by the statute.4 Becaus e Sieber t’s convic tions bec ame fina l prior to

the effective date of AEDPA , he had until April 23, 1997 to file a federal habeas

petition. Wilcox v. Florida D ept. of Corrs., 158 F .3d 120 9, 1210 (11th C ir. 1998 ).

Siebert did not file until September 14, 2001. He argues, however, that the one-

year statute of limitations does not bar his petitions because AEDPA also provides

that:

The time during which a properly filed application for
State po st-conv iction or o ther collate ral review with
respect to the pertinent judgment or claim is pending

3
The certificate of appealability granted by the Middle District of Alabama followed its
denial of Siebert’s motion under Fed. R. Civ. P. 59(e) to alter or amend the judgment denying
habeas relief, as well as a subsequent grant of Siebert’s motion to reopen the time for taking an
appeal. The state argues on appeal that only the denial of Siebert’s Rule 59 motion, not the
underlying dismissal of his habeas petition, is before this Court. We reject this argument in light
of the procedural history recounted by the district court in its order reopening the time for taking
an appeal, as well as its grant of a certificate of appealability as to both its Rule 59 order and the
underlying habeas dismissal.
4
In addition, equitable tolling of the limitations period is in some instances appropriate
under circumstances not encompassed by the statutory exceptions to the time bar. See Drew v.
Department of Corrs., 297 F.3d 1278, 1286 (11th Cir. 2002), cert. denied, 123 S. Ct. 1364
(2003).

6
 shall not be counted toward any period of limitation
under this subsection.

28 U.S.C. § 2244(d)(2). Siebert’s entitlement to have the limitations period tolled

thus depends on whether his applications for state post-conviction review under

Ala. R. Crim. P. 32 were “properly filed.” If they were, his federal habeas

petitions are not untimely because the federal limitations period would have been

tolled from April 24, 1996 until September 15, 2000, the date on which the

Alabama Supreme Court denied review. Since Siebert filed on September 14,

2001, he will have met the one-year deadline.

I. “Properly Filed” Inquiry Under AEDP A’s Tolling Provision

The first round of jurisprudence construing the meaning of “properly filed”

produced a circuit split. A majority of circuits determined that an application for

post-conviction relief could be “properly filed” even if claims asserted therein were

proced urally bar red or o therwis e meritless . Habteselassie v. Novak, 209 F.3d

1208, 1211 (10th Cir. 2000) (“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)”) ; Bennett v. Artuz, 199 F .3d 116 , 122 (2 d Cir. 19 99) (de clining “to

engraft a merit requirement into § 2244(d)(2) without some indication of

7
congressional intent to do so”) (internal quotation marks and citation omitted),

aff’d, 531 U .S. 4 (20 00); Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999)

(criticizing authorities that “have offered little analysis to support their conclusion

that the ph rase ‘pro perly filed ’ conno tes some measur e of mer it”); Lovasz v.

Vaughn, 134 F.3d 146, 14 9 (3d Cir. 1998) (rejecting “the notion that a meritless

PCRA petition cannot constitute ‘a properly filed application’ under §

2244(d)(2)”).

Two other circuits, however, held that applications containing claims barred

under state procedural rules are not “properly filed,” regardless of whether a

proced ural bar c onstituted a filing req uiremen t per se. Dictado v. Ducharme, 189

F.3d 889, 892 (9th Cir. 1999) (defining “‘properly filed application’ to mean an

application submitted in compliance with the procedural laws of the state in which

the applic ation w as filed”); Tinker v. Hanks, 172 F.3d 990, 991 (7th Cir. 1999)

(holding that state “screening mechanisms. . . determine when an application for

postcon viction re lief is prop er (as in ‘p roperly f iled’)”). T his circuit a ligned itse lf

with the view o f the Sev enth and Ninth C ircuits. See Weekley v. Moore, 204 F.3d

1083, 1086 (11th Cir. 2000) (holding that failure to comply with “procedural

requirement forbidding successive motions” rendered petition improperly filed

because “we are persuaded by the reasoning” of Dictado and Tinker); but see id. at

1086 (Barkett, J., dissenting) (criticizing majority’s interpretation as “in direct

8
conflict with the plain meanin g of the phr ase ‘properly filed ’” as used in A EDP A’s

tolling provision).

In Artuz v . Benne tt, 531 U .S. 4 (20 00), the S uprem e Cour t unanim ously

rejected th e broad er appro ach follo wed b y the Sev enth and Ninth C ircuits and in

our own Weekley decision . Instead, th e Court held that a n applica tion is pro perly

filed “when its delivery and acceptance are in compliance with the applicable laws

and rules governing filings.” Id. at 8 (emphasis supplied). Contrasting a

“condition to filing” with a “condition to obtaining relief,” the Court concluded

that non-compliance with conditions to obtaining relief does not prevent a habeas

petitioner’s state application from being “properly filed.” Id. at 11. On this ground

it ruled against the state, which had argued that a post-conviction application was

improperly filed because it failed to comply with two New Y ork procedural bars,

one precluding claims that could have been raised on appeal and the other

preclud ing claim s not raise d on ap peal due to “unjus tifiable failu re.”

The C ourt app roving ly cited dec isions fro m the co urts of ap peals

distinguishing between th e “properly filed” in quiry and a state c ourt’s

determin ation that c laims w ere proc edurally b arred. Id. at 8 (citing Habtes elassie,

209 F.3d at 1210-11, and Villegas, 184 F .3d at 46 9-70). It also ind epende ntly

reversed those courts, including this one, that had interpreted the “properly filed”

provisio n to requ ire comp liance w ith proce dural ba rs gener ally. See Weekly v.

9
Moore, 531 U.S. 1063 (2001)5; Tinker v. Hanks, 531 U.S. 987 (2000). 6 On remand

of our Weekley decision, we read Artuz to dictate a result opposite the one we had

previou sly reache d. Weekley v. Moore, 244 F.3d 874 (11th Cir. 2001) (“Weekley

II”). Thus, we ultimately held that a Florida prisoner’s post-conviction motions

were “properly filed” even though the Florida courts had dismissed them as

successive. Other courts have likewise recognized Artuz to define the term

“properly filed” in a manner that calls for an inquiry distinct from state courts’ own

applicatio n of state r ules gov erning p ost-con viction p etitions. See, e.g., Pratt v.

Greiner, 306 F.3d 1190, 11 92, 1195 (2d Cir. 20 02) (holdin g that “even if P ratt’s

state court motion relied on a forged document, it still was ‘properly filed’ under

AEDPA,” since federal “courts, on habeas review, should not scrutinize the

legitimacy of state court filings to determine whether they were ‘properly filed’

within th e meanin g of § 2 244(d )(2)”).

Neither the Supreme C ourt’s Artuz decision nor our own Weekley decisions

directly addressed non-compliance with a state post-conviction statute of

limitations. Prior to Artuz, however, we had held that an application must meet

5
The United States Reports misspell petitioner Jeffrey Weekley’s name in captioning the
Supreme Court order vacating our opinion.
6
In the third court of appeals case requiring petitioners’ applications to be free of
procedural bar, the Ninth Circuit had held its mandate pending the Supreme Court’s decision in
Artuz. See Dictado v. Ducharme, 244 F.3d 724, 725 (9th Cir. 2001). After the Supreme Court
handed down its decision, the Ninth Circuit withdrew its earlier opinion and published a new
opinion finding the petitioner’s state application properly filed. Id. at 725, 728.

10
state filing d eadlines in order to toll the A EDP A statute of limitatio ns. Webster v.

Moore, 199 F .3d 125 6, 1258 (11th C ir.), cert. denied, 531 U.S. 991 (2000). 7

Nonetheless, we recognized out-of-circuit authority holding that the tolling

provision does not require compliance with “more complex state procedural

doctrines relating to timeliness or repetitiveness.” Id.

Our inquiry in Webster lacked the guidance provided by the Supreme

Court’s discussion in Artuz of the meaning of “laws and rules governing filings.”

The Court gave some content to this phrase by discussing several qualifying

examples and then setting forth a broad distinction:

[Such rules] usually prescribe, for example, the form of
the document, the time limits upon its delivery, the court
and off ice in wh ich it mus t be lodg ed, and th e requisite
filing fee. I n some jurisdictio ns, the filin g requir ements
also include, for example, preconditions imposed on
particular abusive filers, or on all filers generally, cf. 28
U.S.C. § 2253(c) (1994 ed., Supp. IV) (conditioning the
taking of an appeal on the issuance of a ‘certificate of
appealability’). But in common usage, the question
wheth er an app lication is ‘p roperly f iled’ is quite separate
from the question wh ether the claims contained in the
application are meritorious and free of procedural bar.

Id. at 8-9 (em phasis in original; a dditiona l citations omitted). See also Carey v.

Saffold , 536 U.S. 214, 122 S. Ct. 2134, 2143 (2002) (Kennedy, J., dissenting)

7
In Webster, we presumed the limitations period established by Fla. R. Crim. P. 3.850 to
be mandatory unless a prisoner met one of several narrow and specifically described exceptions
enumerated by the rule. For reasons discussed infra, we believe the limitations period
established by Ala. R. Crim. P. 32.2 was not mandatory in this sense when it was applied in
Siebert’s case.

11
(explain ing that “Artuz. . . recognized that an ‘application’ is a ‘document’ distinct

from the legal claims contained within it”).

In a footnote, the Court added that it would “express no view on the question

whether the existence of certain exceptions to a timely filing requirement can

prevent a late application from being considered improperly filed.” Id. at 9 n.2

(citation omitted). It did, however, cite a Fifth Circuit case holding a Louisiana

prisoner’s application for state post-conviction relief “properly filed” because two

statutory e xception s to the state ’s filing de adline req uired a lim ited inqu iry into

particular claims. See Smith v. Ward, 209 F . 3d 383 , 385 (5 th Cir. 20 00), cited in

Artuz, 531 U .S. at 9 n.2 . On the Fifth C ircuit’s view , the inqu iry requir ed to app ly

the exceptions meant that timeliness was more properly regarded under the

Louisiana statute as a limitation on “the state court’s ability to grant relief” than as

“an absolute bar to filing.” Id. As alrea dy noted , Artuz itself reiterate d this

distinction betwee n cond itions to filin g and co nditions to obtain ing relief, th ough it

did so in a portion of its opinion not discussing the Fifth Circuit’s Smith decision

or timely filing requirements.

We note that the context in which Artuz refers to “time limits upon [a

petition’s] delivery” – alongside references to the form of a document, the proper

court and office for filing, and fees – addresses a narrow category of rules setting

forth prerequisites to the commencement of suit. Compliance with a statute of

12
limitations is not generally treated as a precondition to a suit’s commencement, but

rather as a conditio n that mu st be satisfie d to win relief on a particular claim (or all

claims). By tying the term “time limits” to “delivery,” Artuz might be read to refer

to deadlines governing service upon a n oppo sing par ty, which , unlike tim eliness, is

ordinarily a prer equisite to the form al commen cement of su it. The Cou rt’s

discussio n of time limits on “d elivery” m ight also s uggest a concern with

requirements that papers be subm itted within the hours of business maintained b y a

clerk’s office.

The Artuz Court d id not fu rther am plify the m eaning o f its referen ces to

“time limits upon. . . delivery” and “timely filing requirement[s].” Nor need we

presently decide whether the Supreme Court’s language refers only to rules

addressing the mechanics of delivery, such as deadlines for service or hours for

lodging pa pers. Becaus e issues “pertaining to the timeliness of a prisoner’s

application for state post-conviction relief are not homogenous,” Habtes elassie,

209 F.3d at 1211 n.3 (citations omitted), we believe this case is best resolved

narrow ly, by attend ing to the precise n ature of th e Alaba ma time b ar applied in

Siebert’s post-co nviction proceed ings. U nder A la. R. Crim . P. 32.2 (c), state co urts

retained discretion to address claims raised in late petitions. In the sections that

follow, we first discuss the Alabama authorities that lead us to characterize the

time bar, as applied in Siebert’s case, in this manner. We then proceed to consider

13
whether a discretionary statute of limitations is a “timely filing requirement” such

that noncompliance prevents a state post-conviction application from being

“properly filed” within the meaning of § 2244(d)(2).

II. Discretionary Application of Alabama’s Post-Conviction Time Bar

The state argues that the Rule 32 statute of limitations is a jurisdictional bar

that may b e noticed at any stag e of pro ceeding s and alw ays requ ires dism issal.

This contention appears to be an accurate statement of Alabama law as it now

stands. Under William s v. State, 783 So. 2d 135, 137 (Ala. Crim. App. 2000), “the

failure to file a Rule 32 petition within the two-year limitations period is a

jurisdictional defect that can be noticed at any time and is not waived by the failure

of the state to assert it.”

For the purpose of applying AEDPA’s tolling provision, however, our point

of reference is not Alabama law as it now exists. Under the judicially developed

doctrine of proc edural d efault, see Coleman v. Thompson, 501 U.S. 722 (1991);

Wainwright v. Sykes, 433 U.S. 72 (1977), only rules that are “firmly established

and regularly followed” qualify as adequate state grounds for precluding

substan tive review of feder al claims. Edwards v. Carpenter 529 U.S. 446, 450

(2000 ); Ford v . Georg ia, 498 U .S. 411 , 423-2 4 (199 1). We ha ve not p revious ly

stated that th is standar d likew ise applies to state pro cedural r ules in the “proper ly

filed” inq uiry und er § 224 4(d)(2 ), but w e have im plied that it d oes. See Webster,

14
199 F.3d at 1259 & n.4 (pausing to note, in concluding that state court ruling

warran ted defer ence in “p roperly f iled” inqu iry, that “[t]he re is no co ntention in

this case th at the state co urt’s rule is not ‘firm ly establish ed and r egularly

follow ed’”) (citatio n omitted ). The aim s of com ity and fed eralism th at animate

both A EDP A and the doctr ine of pr ocedur al default f avor de ference to ward s tate

procedura l rules only w hen their con sistent application d emonstrates th e state’s

real relianc e on them as a mean s to the or derly adm inistration of justice.

Accordingly, we conclude that a rule governing filings must be “firmly established

and reg ularly follo wed” b efore no ncomp liance w ill render a petition im proper ly

filed for the purpose of AEDPA’s tolling provision. For several reasons, we

believe the jurisdictional character of Rule 32’s time bar did not meet this standard

at the time of Siebert’s post-conviction proceedings.

We first note that the only case cited by the state in arguing that the Alabama

statute of limitations is jurisdictional is Williams, which itself cited as positive

authority only one decision construing the Rule 32 time bar: Siebert's own case.8

8
Despite the reliance place on it by Williams, the decision denying Siebert relief did not
discuss whether the Rule 32 statute of limitations was a jurisdictional bar. Rather, Siebert
himself argued that Rule 32.2(c) was not jurisdictional, but the appeals court refused to address
this contention because he had not addressed it to the trial court. Siebert v. State, 778 So. 2d
842, 847 (Ala. Crim. App. 1999). The portion of Siebert subsequently quoted in Williams
concerned only the conceded authority of Alabama circuit courts to decide sua sponte to dismiss
when “a simple reading” of the petition shows that it “is obviously without merit or is
precluded.” Williams, 783 So. at 136-37 (Ala. Crim. App. 2000) (quoting Siebert, 778 So. 2d at
847 (internal citation omitted)). A court’s discretionary authority to dismiss an untimely petition
on its own initiative is distinct from a party's authority to enforce a time bar, and it is most

15
The other precedents cited by William s were four cases discussing statutes of

limitation in the conte xt of the s tate’s pros ecution o f an accu sed. William s, 783

So. 2d at 137. In our view there exists rather little analogy between statutes of

limitation restricting the state’s authority to initiate prosecutions and a statute of

limitations restricting convicted defendants’ opportunity to bring post-conviction

challeng es. Hen ce we b elieve that a part from Siebert’s own c ase, the pr ecedents

cited in William s were largely inapposite to its conclus ion that th e Rule 3 2 statute

of limitations imposes a jurisdictional bar. The very necessity of relying on

Siebert’s case suggests that the jurisdictional character of the post-conviction

limitations period was not “firmly established” when Siebert itself was decided.

Secon d, we n ote that William s expressly ma nifests the appea ls court’s

awaren ess that it w as anno uncing a new r ule. In characterizin g a failure to file

within the two-year limitations period as a jurisdictional defect, the court stated

that “[a]ny previous holdings to the contrary are hereby expressly overruled.”

William s, 783 So. 2d at 137. It then cited How ard v. S tate, 616 So. 2d 398 (Ala.

Crim. App. 1993), as an example. In Howard, the court had declined to apply the

statute of limitations because it found the state had not met its burden of pleading

the time b ar. Id. at 399. As William s itself recog nized, this treatmen t of the statu te

certainly distinct from a jurisdictional rule requiring a court to dismiss untimely petitions
whenever their untimeliness may be noticed.

16
of limitatio ns is in co nflict with the rule th at Alaba ma cou rts lack jur isdiction to

entertain untimely Rule 32 petitions.

Finally, our conclusion that the jurisdictional character of the time bar was

not firmly established at the time of Siebert’s Rule 32 proceedings draws support

from the opinions denying relief on his petitions. First, neither the circuit nor the

appeals court “dismissed” the petitions, as would be the proper disposition upon a

determin ation that n o jurisdic tion exists , see, e.g., William s, 783 So. 2d at 137;

rather, bo th courts conside red the ca se and u ltimately de nied relief . See Siebert,

788 So. 2d at 846 (discussing Lee County Circuit Court ruling, which “adopted the

State’s proposed memorandum opinion as its final judgment, denying Siebert the

relief requ ested in h is petitions ”); id. at 856 (“a ffirm[ing]” denia l of relief).

Second, the circuit court not only held Siebert’s applications untimely, but also

held his claims to lack merit and to be barred under several different procedural

rules. Id. at 846 (discussing 87-page circuit court ruling). The court of criminal

appeals, a lthough faulting th e circuit co urt for d isposing of the m erits, itself

pronounced that “we have evaluated the evidence presented at the evidentiary

hearing on Sieb ert's Rule 32 petitio ns, and w e conclu de that S iebert rece ived a fair

trial and that the trial court correctly denied the petition.” Id. Neither the circuit

court’s explicit merits determinations nor the court of criminal appeals’ own

evidence-related aside are consistent with a determination that jurisdiction was

17
lacking. Third, both the circuit court and the court of appeals discussed a number

of non-jurisdictional bases for allowing the state to raise the time bar despite not

having pled this d efense in its original respon se to Sieb ert’s petition s. Id. at 848

(discussing Rule 32 statute of limitations and quoting circuit court’s opinion

allowin g state to ra ise defen se in ame nded an swer). A ll of this dis cussion would

be supe rfluous if the cou rts migh t as easily ha ve relied o n the rule ’s suppo sedly

jurisdictional character.

For these reasons, we believe that although the time bar may now be of

jurisdictional import under William s, this was not th e case at the time of S iebert’s

Rule 32 proceedings.

Alabama law made clear instead that noncompliance with the Rule 32 time

bar did not divest courts of discretion to entertain late petitions should they choose

to do so, at least in the absence of an appropriate pleading by the state of a

limitations defense . This w as particu larly clear w ith respec t to courts ’ powe r to

rule on the merits of a late-filing petitioner’s claims as an alternative ground for

denying relief. In Jackson v. State, 612 So. 2d 1356, 1357 (Ala. Crim. App. 1992),

the court found that a Rule 32 petitioner had filed “over four months beyond the

two-year statute of limitations set out in Rule 32.2(c).” The court also noted,

however, that “[g]enerally the statute of limitations is an affirmative defense that

must be affirmatively pleaded or it is waived,” and that the state had not raised the

18
time bar until the conclusion of testimony at an evidentiary hearing.9 Id. Rather

than decide w hether this con stituted a waiver , the court uph eld the circuit cour t’s

denials of relief on the merits, attached the circuit court’s opinion as an appendix,

and itself a ddresse d the on e claim ne glected b y the circu it court, fin ding it also to

be “non-meritorious as a matter of law” and “due to be denied, irrespective of any

procedural bar.” Id.

The Alabama co urts’ former discretion to entertain late petitions also

encompassed the power to grant relief. In How ard v. S tate, 616 So. 2d 398 (Ala.

Crim. App. 1993), the Court of Criminal Appeals held that the state, which

“merely d enied the allegation s of the p etition” in its “Answ er and M otion to

Dismiss,” had not satisfied its “burden of pleading any ground of preclusion.”

Howard, 616 S o. 2d at 3 99 & n .1 (quo ting Ala . R. Crim . P. 32.3 ). The ap peals

court therefor e remanded the case for fur ther considera tion of the petition er’s

claims that he had not been informed of his right to appeal and that his prosecution

subjected him to double jeopardy. By reversing the lower court and remanding,

the court demonstrated its power to grant typical appellate remedies even when

proceedings were originally commenced via an untimely petition.

9
The Court of Criminal Appeals noted that the record showed the district attorney
requesting at the conclusion of the evidentiary hearing to “renew” the state’s motion to dismiss
the petition as time-barred. Jackson, 612 So.2d at 1357. The court added, however, that it found
“no indication in the record” that “the district attorney ever made an earlier motion on this
basis.” Id.

19
 In decisions prior to and contemporaneous with Siebert’s proceedings, the

legal analyses set forth by the Court of Criminal Appeals likewise implied the

courts’ power to vacate convictions or reduce sentences on the basis of claims

raised in untimely petitions. In Howard, by remanding for further proceedings, the

appeals court contemplated the possibility that the circuit court would vacate the

petitioner’s conviction or permit him to take an out-of-time appeal. In Callahan v.

State, 767 So. 2d 380 (Ala. Crim. App. 1999), the court recounted a procedural

history in which a death-sentenced prisoner filed a Rule 32 petition some ten and a

half mo nths after the expiration of th e norm al two-y ear limitatio ns perio d. Id. at

383. No netheless, the cou rt addressed th e substance o f each of the p etitioner’s

dozens of claims as to how certain ass erted failu res of his trial and ap pellate

counsel constituted constitutionally ineffective assistance. Rather than hold these

claims subject to Rule 32’s time bar, the court held repeatedly that the petitioner

had failed to carry “his burden of proving by a preponderance of the evidence the

facts necessary to show that he is entitled to relief.” E.g., id. at 394, 395, 396, 397,

401. The court used the same language in rejecting the petitioner’s claim that the

prosecu tion had failed to d isclose ex culpator y eviden ce. Id. at 402. With respect

to a range of additional substantive claims, the court applied procedural bars

unrelated to the statu te of limitatio ns. Id. at 404. Similarly, in Jones v . State, 753

So. 2d 1174 ( Ala. Cr im. Ap p. 1999 ), the petitio ner filed a Rule 32 petition ro ughly

20
two months after the end o f the normal two-year limitations period. No netheless,

as in Callahan, the court treated the merits of a range of claims concerning

ineffective assistance of counsel. As it summarized the endeavor, “we have

reviewed each and every allegation of ineffective assistance of counsel and have

found either that the allegation is without merit or that Jones failed to prove it.” Id.

at 1199. On other claims, the Jones court applied procedural bars other than the

statute of lim itations. Id. at 1205-1206.

Although the court granted relief in neither Callahan nor Jones, its extensive

and manifold analysis of the petitioners’ ineffective assistance claims makes clear

that relief would have been proper if compelled by the substantive law addressing

the Sixth Amen dment r ight to co unsel. T he state co ntends th at Jones and Callahan

do not show that Alabama courts were authorized to dispense with the statute of

limitations, but merely demonstrate that the court failed to notice the limitations

period’s expiration in these particular cases. The possibility that the court

neglected in these ca ses to con firm the p etitions’ tim eliness, ho wever , actually

demonstrates the very point we find most relevant in our “properly filed” inquiry:

untimelin ess did n ot mand ate a petition ’s dismiss al, but rath er was a matter w ithin

the court’s discretion to ignore. We note that the lengthy opinions published by the

Court of Criminal Appeals in Jones and Callahan set forth comprehensive legal

analyses. This approach does not suggest a decisional process in which the court

21
simply seized upon a groun d other than the statute of limitations as the most

efficient means to dispose of the claims before it. We instead d iscern in these

cases a resolve on the appeals court’s part to address the procedural and

substantive aspects of the petitioners’ cases in full. The comprehensive analyses

set forth reflect, if not necessarily a deliberate decision to permit untimely filing, at

least an aw areness th at untime liness, w ere it show n, wou ld not co mpel the court to

refrain from a sustained treatment of the merits. It thus can no more be said that

the cour t failed to n otice the ru nning o f the statute than that it c hose to d isregard it.

In this case, the issue of timeliness first arose some three years after Siebert

filed his petitions. The circuit court rejected Siebert’s argument that the state had

waived the statute of limitations defense by failing to plead it sooner. Under the

“relation back” doctrine, it held, the state should be allowed to raise the time bar

since Siebert had been allowed to amend his own petitions. The Alabama Court of

Criminal A ppeals uph eld this ruling, bu t it did so on the b asis of the circuit cou rt’s

discretionary authority to allow amendments to pleadings, without determining

whether the state was entitled as a matter of law to the benefit of a statute-of-

limitations defense . Althou gh the co urt rejected Siebert’s argum ent that the state

waived the defen se by not raising it in its “first resp onsive p leading,” the court

treated waiver as a question of Siebert’s right to timely notice rather than of any

state entitlem ent. Siebert, 778 So. 2d at 847-48 (concluding that “Siebert had

22
timely no tice of the S tate’s intentio n to rely o n the statu te of limitatio ns defen se” in

address ing wa iver issue) (quotin g circuit co urt opin ion)). W hile Sieb ert thus co uld

not dem and that h e be exem pted fro m the tim e bar’s ap plication, th e appeals

court’s analysis makes clear that enforcement of the limitations period was

committed to the circuit court’s discretion. This is apparent from its citation of

rules providing that “[a]mendments to pleading s may be permitted at any stage of

the proc eedings prior to th e entry of judgm ent,” and that a cou rt “may summ arily

dismiss” a petition w hen, “assu ming th e allegation s of the p etition to b e true, it is

obviously without merit or is precluded.” Id. at 848 (citing Ala. R. Crim. P.

32.7(d) and quoting Burton v. State, 728 So.2d 1142, 1147-48 (Ala. Crim. App.

1997)) (additional citations omitted) (emphasis added).10 The co urt conc luded th is

portion of its discussion by explaining that “the trial court could have dismissed the

petition on procedural grounds even without any response from the State.” Id.

Because of the role of judicial d iscretion in the limitation s period’s

application in this case, we need not presently decide w hat effect untimeliness

10
In Siebert, the court also cited a rule providing that “[l]eave to amend shall be freely
granted.” Ala. R. Crim. P. 32.7(d). The appeals court appears to have been referring, however,
to the leave granted Siebert to amend his own petitions shortly before the evidentiary hearing
convened some three years after his original filing. The next sentence of its decision reads: “The
granting or denial of a motion to amend a Rule 32 petition is within the sound discretion of the
trial court, whose ruling on such a motion will be reversed only for an abuse of discretion.”
Siebert, 778 So. 2d at 848 (emphasis added) (citation omitted). We thus cannot read the appeals
court’s enunciation of a “freely granted” standard to suggest any qualification of the main thrust
of its reasoning, which, as described in the text, recognized the circuit court’s discretion to allow
the state to raise the time bar.

23
would have on the “properly filed” inquiry were the state to have pled the

limitations period in a mann er clearly re cognize d by A labama’s courts to secure its

entitlemen t to rely on this defen se. Here , the time bar’s applic ation w as not a

matter of state entitlement but of court discretion, and the same discretion relied

upon to impose the time bar could also have afforded a basis to reach the merits of

Siebert’s claims, as Howard, Jackson, Callahan, and Jones make clear. It cannot be

said that Alabama law required the courts to refrain from adjudicating the merits of

the claims raised in Siebert’s untimely petitions. We turn then to the question of

what bearing a time bar within a court’s discretion to impose has on the question of

proper filing under Artuz.

III. Discretionary Time Bars as “Conditions to Ob taining Relief”

We are unable to locate any authority addressing the intersection between

AEDPA’s tolling provision and statutes of limitation permitting courts, in their

discretion, to examine the merits of claims raised in late petitions. Cases applying

the tolling provision in other circuits have predominantly addressed state rules

requiring courts to determin e wheth er an exc eption to a limitation s period applies.

Two of three c ircuits to h ave add ressed th is issue ha ve held th at failure to meet a

filing deadline will not prevent a petition from tolling AEDPA’s limitations period

if the state tim e bar pro vides ex ceptions that cann ot be app lied with out at least a

limited m erits assess ment. Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir.

24
2001) (reversing earlier decision, after stay of mandate, in light of Supreme

Court’s intervening Artuz decision ); Smith, 290 F .3d at 38 5; see also

Habtes alassie, 209 F.3d at 1211 n.3 (reserving similar question). These c ourts

have reasoned that since the existence of such exceptions assures at least some

level of judicial review of claims raised in late petitions, timeliness is better

regarde d as a con dition to o btaining relief than a conditio n to filing . See Dictado,

244 F .3d at 72 7-28; Smith, 209 F.3d at 385.

The Seventh C ircuit has criticized this approach in holding that Illinois’

statute of lim itations, by permittin g late filing s on the p art of petitio ners able to

satisfy what the Seventh Circuit characterized as a “miscarriage of justice”

standard, does not render all untimely petitions “properly filed.” Brook s v. Wa lls,

279 F .3d 518 , 521 (7 th Cir. 20 02), aff’d on reh’g, 301 F .3d 839 , cert. denied, 123

S. Ct. 1899 (2003). Although the court acknowledged that such a rule requires “at

least a sidelong glance at the merits,” it characterized the exception as an escape

valve for “plain error.” Id. at 521, 5 23. Th e court then reasoned that a state court

decision finding (1) that a petition is untimely, and (2) that no miscarriage of

justice requires its entertainment, is of a form traditionally recognized to rest on

“adequate and independent state grounds” sufficient to preclude collateral federal

review . Id. at 523-24. The Seventh Circuit accordingly held that a petition

25
dismissed as untimely by the Illinois courts had not tolled AEDPA’s one-year

limitations period.

In this case, we believe the discretion left to Alabama courts to enforce the

time bar compels the conclusion that timeliness was not a prerequisite to filing per

se. Since the courts’ discretion meant a petition might be entertained even when

filed late, the two-year deadline did not create a “timely filing requirement.”

Artuz, 531 U.S. at 9 n.2 (emphasis added). Rather, the very exercise of

discretionary authority, regardless of whether or not to excuse lateness, is itself a

sufficient quantum of judicial review to show that Alabama courts deemed the

form an d mann er of a pe tition’s filing sufficien t to trigger their ow n autho rity to

act upon claims raised therein. At least in those instances where the courts treated

the state as having failed to secure any entitlement to rely on the statute of

limitations as a defense, timeliness was not among the conditions required for such

discretion . Accor dingly, co mplianc e with R ule 32.2 (c)’s two -year dea dline sho uld

be regarded as a condition to obtaining relief rather than a condition to filing, and

we cannot say that the deadline wa s among the “laws and ru les governing filings”

of Rule 32 petitio ns. Id. at 8.

Our approach is consistent with the Fifth Circuit’s in Smith. As with the

Louisiana law considered in that case, timeliness under Ala. R. Crim. P. 32.2(c)

was no t a “prereq uisite[]” tha t had to b e satisfied b efore A labama c ourts w ould

26
“allow a petition to be filed and accorded some level of judicial review.” Smith,

290 F.3d at 384 (quoting Villegas v. Johnson, 184 F.3d 467, 470 n.2 (5th Cir.

1999) (emphasis supplied in Smith). The Fifth Circuit’s refinement of its approach

comes nearest to our present task in Emerson v. Johnson, 243 F.3d 931 (5th Cir.

2001), a case decided after Artuz and Smith. There, the court considered a Texas

statute that forbade state habeas petitioners from filing motions for reconsideration,

but which Texas courts, by entertaining such motions, had ignored on several

occasion s. Id. at 934-35. Citing “the Artuz Court's broad reading of the p hrase

‘properly filed,’” the Fifth Circuit held that a petitioner’s motion for

reconsid eration, alth ough f orbidd en by statu te, was n onethele ss prop erly filed. Id.

at 935. The Texas law considered in Emerson bore tw o impo rtant resem blances to

Alabama’s formerly discretionary time bar. First, the courts’ occasional neglect of

the statute w as not pu rsuant to any equ itable exce ption the y might h ave create d to

mitigate a rule of doubtlessly harsh consequence. Rather, the rule’s non-

application was simply an unexplained practice evidenced by three cases in which

the Texas courts had entertained motions for reconsideration.11 As read by the

Fifth Circuit, the opinions published in these cases offered no reason for

disregarding the statutory bar. Second, the procedural histories of these Texas

11
The Fifth Circuit also noted that it could find no case in which the Texas courts had
held the statutory bar to prohibit the filing of a motion for reconsideration. Emerson, 243 F.3d at
935.

27
cases, as recounted by the Fifth Circuit, did not end in vacations of conviction or

dismissals of sentences. For the purpose of the “properly filed” inquiry with which

the Fifth Circuit was concerned, it was sufficient that the Texas courts, by

entertaining motions for reconsideration, had “provided state habeas petitioners

with the hope that a motion or suggestion for reconsideration may be successful.”

Id. at 935.

The sam e must b e said of A labama c ourts’ on e-time dis cretion to entertain

untimely petitions. The entertainment of late petitions in Howard, Jackson, Jones,

and Callahan provided prisoners with “some level of judicial review.” Smith, 290

F.3d at 384. Although the practice reflected in these cases was hardly a guarantee,

it did provide Alabama prisoners with the hope that a petition, even if filed late,

could b e success ful. Suc h petition s must in our view be regar ded as “p roperly

filed.”

Our treatment of Alabam a’s formerly discretionary time bar is also

consisten t with the Seven th Circu it’s applicatio n of A EDP A’s tollin g prov ision in

Brooks. In an opinion affirming the Brooks decision on rehe aring, the Seven th

Circuit p anel revis ited a hyp othetical se t forth in its first decisio n, whe reby state

law mig ht prov ide that “an y meritor ious filing ” wou ld be dee med tim ely. Brooks

v. Walls , 301 F .3d 839 , 841 (7 th Cir. 20 02). Th e court ex plained th at “the only

sensible understanding” of such a rule “would be that every collateral attack was

28
timely for purpo ses of state law, because every one was enough to precipitate a

decision on the m erits.” Id. (emphasis ad ded). In A labama at the time of Siebert’s

Rule 32 proceedings, an untimely petition was “enough to precipitate a decision on

the merits ,” at least in th e categor y of cases , like this on e, in wh ich the co urts

treated the two-ye ar time ba r as a con dition w ithin their o wn dis cretion to apply.

Howard, Jackson, Jones, and Callahan provide examples of merits determinations

precipitated by untimely petitions.

We need go no further in addressing the doctrine of adequate and

independent state grounds discussed in Brooks. As the Seventh Circuit explained,

this doctrine has been applied in cases assessing whether a federal habeas

petitioner’s procedural default of state remedies precludes collateral federal review

absent a showing of “cause” and “prejudice.” Brooks, 279 F.3d at 523 (citing

Wainwright v. Sykes, 433 U.S. 72 (1977)). Unlike the highly intricate rules

governing procedural default, which articulate a judicially crafted doctrine aiming

broadly to recon cile the righ ts of crim inal defen dants an d the role of feder al courts

with the authority of states and state courts, the application of AEDPA’s tolling

provisio n is a com paratively straightfo rward enterpris e predica ted on th e plain

meaning of the phrase “properly filed.” In Artuz, the Cou rt rejected a rgume nts

pertaining to the federalism-related “object of § 2244(d)(2)” in favor of resolving

the case on the basis of “the only permissible interpretation of the text–wh ich may,

29
for all we know, have slighted policy concerns on one or the other side of the issue

as part of the legislative compromise that enabled the law to be enacted.” Artuz,

531 U.S. at 10.

In light of this instruction that controlling force be given to the literal

meaning of the phrase “properly filed,” we find it dispositive that the exercise of

discretion to enforce or not enforce a po st-conviction time bar itself constitutes a

sufficient quantum of judicial review to effectively ratify the form and manner of a

petition’s filing. When a petition has thus empowered a court to act directly upon

the claims it raises, we believe it must be regarded as “properly filed.”

Accordingly, we hold that Siebert’s non-compliance with Rule 32’s time bar, since

it was treated by the Alabama courts as immaterial to their own authority to act

upon h is claims, d id not ren der his p ost-con viction ap plications “[im]pro perly

filed.”

Since timeliness is the only issue raised by the state in arguing that Siebert

failed to comply with the laws and rules governing filings under Rule 32, we

conclude that his petitions were “properly filed” within the meaning of §

2244(d)(2). An application for post-conviction relief, once properly filed, remains

“pendin g” for th e purpo se of tollin g the on e-year fed eral limitatio ns perio d until

the final d isposition of any ap peals to h igher state courts. Carey v . Saffold, 536

U.S. 2 14, 122 S. Ct. 21 34, 213 8 (200 2); Moore v. Crosby, 321 F.3d 1377, 1380

30
(11th C ir. 2003 ) (“It is clear th at tolling co ntinues u nder sec tion 224 4(d)(2 ) while

the petitioner app eals the denial of a s tate application in state co urt.”). AED PA’s

limitations period was therefore tolled in Siebert’s case from the date of the

statute’s en actment, a t which time his R ule 32 p etitions w ere alread y pendin g, until

September 15, 2000, when the Alabama Supreme Cou rt denied discretionary

review of the Alabama Court of Criminal Appeals’ decision upholding the denial

of relief. Because Siebert filed his federal habeas petitions on September 14, 2001,

his petition s were f iled with in one ye ar of the lim itations pe riod’s co mmen cement.

They were thus timely under § 2244(d)(1), and the district courts are due to be

reversed.

CONCLUSION

For the foregoing reasons, we VACATE the district court orders dismissing

Siebert’s petitions a nd RE MA ND f or furth er proce edings c onsisten t with this

opinion.

VACATED AND REMANDED.

31