AEDPA Part 1

Janice L. Bergmann

Office of the Federal Public Defender

for the Southern District of Florida

101 N.E. Third Avenue, Suite 202

Fort Lauderdale, FL 33301

(954) 356-7436 ext. 110 fax: (954) 356-7556

Janice_Bergmann@fd.org

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)[1] was signed by the President on the afternoon of April 24, 1996.[2] Although over four years have passed since the AEDPA=s enactment, the federal courts continue to struggle with the interpretation and application of its various provisions. This is in large part because the AAEDPA is less than a masterpiece of clarity.@[3] Justice Souter has succinctly described it as follows: A[I]n a world of silk purses and pigs= ears, the Act is not a silk purse of the art of statutory drafting.@[4]

This article surveys the state of the decisional law of the AEDPA as of June 30, 2000.[5] Little attempt is made to analyze whether the cases cited herein have interpreted the statute properly, or to fill the many interpretational voids that remain.

That said, two editorial comments cannot be avoided. First, if a pattern has emerged over time concerning the proper construction of key AEDPA provisions, it is the Supreme Court=s willingness to reject arguments made by the state and federal governments, and to overrule lower court decisions, that require a narrow interpretation the statute.[6] Second, despite the AEDPA=s obvious purpose to limit federal court review of constitutional claims raised in 28 U.S.C. ' 2254 habeas corpus proceedings, many state prisoners continue to obtain habeas corpus relief from their illegal convictions and sentences.[7]

I. OVERVIEW OF THE AEDPA.

Title I of the AEDPA, entitled AHabeas Corpus Reform,@ contains sections 101-108. AEDPA '' 101-106 amend previously existing habeas statutes contained in Chapter 153 of the Judiciary Code, Title 28, United States Code,[8] and Rule 22 of the Federal Rules of Appellate Procedure. These amendments affect both capital and non-capital cases brought by state and federal prisoners, by, inter alia, creating a new statute of limitations, AEDPA '' 101 & 105; requiring the issuance of a Acertificate of appealability@ to appeal the denial of relief, AEDPA '' 102 & 103; and placing limitations on second and successive petitions, AEDPA '' 105 & 106. For state prisoners, AEDPA ' 104 creates a new limitation on habeas relief, and changes the rules regarding the exhaustion of state remedies, the presumption of correctness of state court factfindings, and the availability of federal evidentiary hearings. AEDPA ' 104. Throughout this article, these amendments will be referred to collectively as Athe Chapter 153 amendments.@

In contrast, only capital cases are affected by AEDPA '' 107 and 108. Section 107 creates a new Chapter 154 within Title 28, United States Code. Chapter 154 contains special optional provisions triggered by the state=s establishment of a mechanism for the appointment and compensation of counsel in state postconviction proceedings in capital cases. Because the state needs to act affirmatively for these provisions to apply, they are sometimes referred to as Aopt-in@ provisions. This article, however, will refer to them as Athe Chapter 154 provisions.@ Section 108 of the AEDPA makes changes regarding the availability of expert and investigative funds in capital cases by amending 21 U.S.C. ' 848(q). AEDPA ' 108.

II. APPLICABILITY OF THE AEDPA.

A. Chapter 154 Provisions.

Although AEDPA ' 107(c) provides that the Chapter 154 provisions affecting capital habeas cases Ashall apply to cases pending on or after the date of enactment of this Act,@ this is true only if a state meets the prerequisites for application of Chapter 154.[9] Moreover, even if a state meets the prerequisites for application of Chapter 154, the Supreme Court has noted that ' 107(c) does not Ause the sort of absolute language@ that Landgraf v. USI Film Products[10] suggested might qualify Aas a clear statement@ of Congressional intent required for retroactive application of a statute.[11] Rather, the application of Chapter 154=s provisions to pending capital cases may need to be decided be on a case-by-case and provision-by-provision basis:

While the terms of ' 107(c) may not amount to the clear statement required for a mandate to apply a statute in the disfavored retroactive way, [footnote omitted] they do serve to make it clear as a general matter that chapter 154 applies to pending cases when its terms fit those cases at the particular procedural points they have reached. (As to that, of course, there may well be difficult issues, and it may be that application of Landgraf=s default rules will be necessary to settle some of them.)[12]

As no state has yet been found to have a mechanism for the appointment and compensation of state postconviction counsel that qualifies for application of the expedited procedures contained in Chapter 154,[13] no court has yet addressed whether Chapter 154 can be applied retroactively in an individual capital case.

B. Chapter 153 Amendments.

The considerations governing application of the Chapter 153 amendments to pending cases, both capital and noncapital, are more complex. In Lindh v. Murphy,[14] the Supreme Court held that Athe new provisions of chapter 153 generally apply only to cases filed after the Act became effective.@[15] Following Lindh, the lower courts considered when a Acase@ was Afiled@ for purposes of application of the Chapter 153 provisions, and the vast majority tied application of all of these provisions to the date a ' 2254 petition or ' 2255 motion was filed.[16]

In Slack v. McDaniel, however, the Court labeled that analysis Aincorrect.@[17] Slack distinguished between the filling of a Acase@ in the district court and the filing of a Acase@ in the court of appeals. The certificate of appealability provision at issue in Slack, 28 U.S.C. ' 2253, Aestablishes procedural rules and requires a threshold inquiry into whether the circuit court may entertain an appeal.@[18] It is therefore Adirected to proceedings in the appellate courts,@ and Aapplies to appellate proceedings initiated post-AEDPA.@[19] In contrast, the limitation on habeas relief at issue in Lindh, 28 U.S.C. ' 2254(d)(1), is Adirected to proceedings in the district court,@[20] it applies to Acases filed in the [district] court post-AEDPA.@[21] Similarly, because Athe question of whether Slack=s petition was second or successive implicates his right to relief in the trial court,@ it does not apply to proceedings initiated pre-AEDPA.[22] Finally, although Slack did not so specify, it appears that the remaining amendments B the new one-year statute of limitations; the modifications to those provisions governing exhaustion and the presumption of correctness; and the new limits on federal evidentiary hearings B are Adirected to proceedings in the district court@ or Aimplicate the right to relief in the district court.@ They therefore apply to cases filed in the district court post-AEDPA

1Note that application of the AEDPA=s Chapter 153 amendments to a case simply because it is filed after the date of enactment is not mandated. Rather, the text of the AEDPA indicates that Athe new provisions of chapter 153 generally apply only to cases filed after the Act became effective.@[23] As the Sixth Circuit has stated, A[t]he Court=s holding [in Lindh] that Chapter 153 generally applies only to cases filed after enactment does not imply that it applies where a retroactive effect would thereby result@ under the retroactivity analysis employed in Landgraf v. USI Film Products.[24] Several other circuits concur, holding that if application of the AEDPA=s Chapter 153 amendments would produce a genuine retroactive effect in the applicant=s case, then Landgraf prohibits their application.[25]

1. Chapter 153 Amendments Directed to District Court Proceedings.

Post-Slack, a general rule regarding applicability of the Chapter 153 amendments directed to district court proceedings has emerged. These amendments B the statute of limitations, limitation on habeas relief, exhaustion, presumption of correctness, evidentiary hearing, and second or successive provisions B generally apply to ' 2254 petitions or ' 2255 motions filed after April 24, 1996,[26] but do not apply to petitions and motions filed before that date.[27] The failure to obtain leave to proceed in forma pauperis or failure to pay the filing fee before the date of enactment does not alter this analysis.[28] Similarly, if clerical error resulted in an application received by the court pre-Act not being filed by the court until after the date of enactment, the application is not governed by the AEDPA.[29]

To this general rule, there are some exceptions. For prisoners litigating pro se, a Amailbox@ rule applies, and a case is Afiled@ on the date the prisoner delivered the ' 2254 petition or ' 2255 motion to prison officials.[30] Therefore, if a prisoner proceeding pro se delivered a petition or motion to prison authorities before April 24, 1996, then the Chapter 153 amendments directed to district court proceedings do not apply.

For capital habeas petitioners, there is a split in the circuits as to whether a capital habeas Acase@ is Afiled@ when a request for the appointment of counsel pursuant to McFarland v. Scott[31] is filed, or whether an actual Apetition@ must be filed. In Calderon v. United States District Court (Kelly),[32] the Ninth Circuit held en banc that a petition for appointment of counsel under McFarland creates a pending habeas case. Under the Ninth Circuit=s view, the Chapter 153 amendments directed to district court proceedings do not apply to any capital case in which a McFarland request was filed prior to April 24, 1996. Other courts of appeal, however, have held that a McFarland request is not enough, and that even in capital cases it is the date of the filing of the petition that is the critical date for determining applicability of the AEDPA.[33] All of these decisions, however, were pre-Slack. Slack=s determination that the filing of a preliminary motion such as a certificate of appealability commences a Acase@ in the court of appeals for purposes of application of the Chapter 153[34] may spark a re-evaluation as to whether the filing of a McFarland motion commences a Acase@ in the district court.[35]

Finally, an impermissible retroactive effect may preclude application of some Chapter 153 amendments directed to district court proceedings notwithstanding the date the case commenced. For example, the AEDPA=s one-year statute of limitations does not apply to petitions filed after April 24, 1996 by prisoners whose statutory right to seek federal habeas relief accrued prior to that date. The courts of appeal unanimously agree that it would be impermissibly retroactive to apply the statute of limitations to bar litigation of such cases, and have provided a Agrace period@ for applicants by extending the limitations period to one year after the date of enactment, regardless of the date of accrual.[36] In contrast, a number of courts have concluded that no impermissible retroactive effect would result from application of the AEDPA=s new limitation on relief, codified at ' 2254(d)(1), to cases filed after the date of enactment.[37]

Pre-Slack, the courts of appeal differed on how to approach the retroactivity concerns they perceived as coming into play where the request for leave to file a second or successive application was filed in the court of appeals after April 24, 1996, but the prior application was filed before the date of enactment. For example, the Second, Eighth, Ninth and Tenth Circuits simply held that a request for leave to file a second or successive application filed in the court of appeals after April 24, 1996 is subject to the AEDPA=s strict limitations on such applications.[38] The Seventh and Eleventh Circuits applied the AEDPA to second or successive applications filed after April 24, 1996 unless the applicant could show detrimental reliance, namely, that the applicant omitted claims in the prior habeas petition or ' 2255 motion in reliance on the plausible belief that pre-Act law would have permitted a subsequent application.[39] The Fifth Circuit, in different cases, employed both approaches.[40] The Third, Sixth and District of Columbia Circuits employed a different test, concluding that if the applicant would have been entitled to relief under pre-Act law, but was not so entitled under the AEDPA=s provisions, an impermissible retroactive effect would result from applying the AEDPA=s requirements governing second and successive applications.[41] Finally, in different cases, the First Circuit employed all three approaches used by the other circuits.[42] These approaches may or may not be affected by Slack.

2. Chapter 153 Amendments Directed to Appellate Proceedings.

In Slack, the Court held that the AEDPA=s certificate of appealability (COA) requirement,[43] Aestablishes procedural rules and requires a threshold inquiry into whether the circuit court may entertain an appeal.@[44] It is therefore Adirected to proceedings in the appellate courts,@ and applies to all ' 2254 cases where the appeal is Ainitiated@ or Acommenced@ after April 24, 1996.[45]

Slack states that Aunder AEDPA, an appellate case is commenced when the application for a COA is filed.@[46] However, because a notice of appeal may be construed as a certificate of appealability,[47] an appellate case may also be Acommenced@ for purposes of the applicability of the COA provision upon the filing of the notice of appeal. Accordingly, in any case where the notice of appeal or application for a certificate of appealability was filed after April 24, 1996, the certificate of appealability provisions apply.

Although Slack discusses the COA requirement in the context of a ' 2254 proceeding, its reasoning also appears to require a COA in ' 2255 appeals commenced after April 24, 1996. But this may not be true in cases where the ' 2255 motion was filed in the district court before April 24, 1996. The Eighth Circuit has held (in a pre-Slack decision) that it is impermissibly retroactive to apply the COA provisions to ' 2255 cases where the motion was filed in the district court before April 24, 1996.[48]

C. AEDPA ' 108.

The applicability of AEDPA ' 108 to pending cases has been little discussed. It may be that the Anegative inference@ analysis employed in Lindh v. Murphy also applies to the amendments to 21 U.S.C. ' 848(q) made by AEDPA ' 108. However, it should be noted that the Supreme Court recently distinguished Lindh v. Murphy when considering the applicability to pending cases of limits on statutory attorney fees under the Prison Litigation Reform Act.[49] There, the Court held that the new limits on attorney fees have no retroactive effect if applied to post-enactment work done on a pre-enactment case, but may not be applied to work performed before the PLRA took effect.[50] A similar analysis was used in a pre-Lindh case wherein the Ninth Circuit held that amended ' 848(q) does not apply to fee requests filed before that date.[51]

D. Amendment of Pre-AEDPA Filings.

Other questions remain regarding the applicability of the AEDPA to cases where a ' 2254 petition or ' 2255 motion was filed before the date of enactment, but an amended petition is filed post-Act. The Third Circuit has held that the AEDPA does not apply to an amended application filed post-AEDPA, where the amended petition simply clarified the pre-AEDPA filing by deleting unexhausted claims.[52]

The situation is more complicated, however, where a ' 2254 petition filed pre-AEDPA was dismissed without prejudice for failure to exhaust state remedies, and a subsequent petition filed post-AEDPA. A critical factor appears to be whether or not the district court Aexpressly or impliedly retain[ed] jurisdiction over [petitioner=s] original petition when the court dismissed for failure to exhaust.@[53] If there is no such retention of jurisdiction over the action, then the amended petition does not relate back to the pre-Act filing and the AEDPA controls.[54]

E. What If the District Court Incorrectly Applied the AEDPA?

The fact that the district court may have incorrectly applied the AEDPA=s amendments to a pre-Act case does not in and of itself merit reversal on appeal. If it is possible for the court of appeals to review the district court=s decision using the standards applicable before the AEDPA to determine if the district court=s decision was proper, it may do so. If it cannot, remand to the district court is appropriate.[55]

III. WHETHER PROVISIONS OF THE AEDPA ARE JURISDICTIONAL.

Soon after enactment of the AEDPA, a number of courts held that the government may waive the application of the entire AEDPA,[56] either by an affirmative waiver or by failing to argue the Act=s application. As time has passed, however, the courts have become somewhat more sophisticated in their analysis, paying greater attention to the question of whether a particular provision of the AEDPA, rather than the entire Act, may be waived.

A. Non-jurisdictional Provisions.

Several provisions of the AEDPA have been held to be non-jurisdictional and therefore may be waived by the government. For example, the vast majority of courts to consider the question have held that the one-year time limit for the filing of a ' 2254 habeas petition,[57] and the parallel one-year limit for the filing of a ' 2255 motion,[58] are not jurisdictional, but statutes of limitations subject to waiver by the government.[59] Similarly, in capital cases, the government may waive application of the Chapter 154 provisions enacted in AEDPA ' 107.[60]

In addition, several courts have held that application of the new limitation on habeas relief created by AEDPA ' 104, and codified at 28 U.S.C. ' 2254(d), may be waived by the State through its nonassertion.[61] The Seventh Circuit, however, has been somewhat schizophrenic on the subject. In Mason v. Hanks, the court declined to consider the impact of ' 2254(d) on the claims before it because A[t]he question does not go to our jurisdiction, and Indiana has not asked us to consider it. We therefore deem the subject waived.@[62] In contrast, in Hogan v. Hanks,[63] the court rejected petitioner=s assertion that ' 2254(d) should not apply because the state neglected to invoke it. Rather, the Court implied, even if ' 2254(d)=s application is not asserted by the state, the Court may nonetheless rely upon it as a basis for decision: ASuch a forfeiture permits a court to apply the former law, but >counsel=s inattention to the niceties of federal practice does not [invariably] forfeit the benefits the law bestows on the state as an entity.=@[64]

B. Jurisdictional Provisions.

If a habeas petitioner or ' 2255 movant fails to obtain prior authorization from the court of appeals before filing a second or successive application for relief in the district court,[65] then the district court lacks jurisdiction to the consider the application.[66] Because district courts lack jurisdiction over second or successive applications, they also lack jurisdiction to consider motions for appointment of counsel to assist with the filing of such petitions.[67]

In addition, the requirement that a ' 2254 habeas petitioner or ' 2255 movant obtain a certificate of appealability (COA) to appeal,[68] is jurisdictional in nature.[69] Thus, a district court may deny a COA sua sponte,[70] and the absence of a COA will preclude an appeal of the district court=s denial of '' 2254 or 2255 relief. It does not appear, however, that an erroneously-issued certificate will preclude an appeal. Once a COA issues, it may be treated as presumptively valid and therefore sufficient to confer jurisdiction.[71] Moreover, if a CPC was granted by the district court where a COA was required, the court of appeals may A>fix= the inadequacies@ of the CPC by applying AEDPA=s standards and issuing a proper COA, if a COA is warranted.[72]

IV. CONSTITUTIONAL CHALLENGES.

Various provisions of the AEDPA have been challenged as violating the Suspension Clause,[73] Article III, the Due Process Clause, the Ex Post Facto Clause, and the Eighth Amendment. These constitutional challenges have met with minimal success.

A. Suspension Clause.

In Felker v. Turpin,[74] the Supreme Court rejected a state prisoner=s Suspension Clause challenge to the restrictions on second and successive petitions contained in AEDPA ' 106 (codified at 28 U.S.C. ' 2244(b)). The Court stated:

The Act requires a habeas petitioner to obtain leave from the court of appeals before filing a second habeas petition in the district court. But this requirement simply transfers from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by 28 U.S.C. ' 2254 Rule 9(b). The Act also codifies some of the pre-existing limits on successive petitions, and further restricts the availability of relief to habeas petitioners. But we have long recognized that >the power to award the writ by any of the courts of the United States, must be given by written law,= Ex parte Bollman, 4 Cranch 75, 94, 2 L.Ed.2d 554 (1807), and we have likewise recognized that judgments about the proper scope of the writ are >normally for Congress to make.= Lonchar v. Thomas, 517 U.S. ___, 116 S. Ct. 1293, 1298, 134 L.Ed.2d 440 (1996). [&] The new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice Aabuse of the writ.@ . . . [T]hey do not amount to a >suspension= of the writ contrary to Article I, ' 9.@[75]

Suspension Clause issues have arisen post-Felker regarding the application of the Act=s restrictions on second and successive petitions to claims that could not be adjudicated in the initial petition because unavailable for decision. For example, a competency-to-be-executed claim cannot be asserted in a first petition, because once a stay issues, it will be premature. Under the AEDPA, such a claim cannot be asserted in a second petition, either, because it does not fall within the Agateways@ provided for successive petitions in ' 2244(b)(1)(A) & (B). In Martinez-Villareal v. Stewart,[76] the Ninth Circuit concluded that this conundrum Apose[s] a serious constitutional problem@ under the Suspension Clause.[77] The court of appeals noted that although in Felker the Supreme Court upheld the AEDPA=s gatekeeping provisions as a Amodified res judicata rule,@ such is not the case when the petitioner presents a colorable competency claim: Athe restrictions on successive petitions containing a colorable competency claim cannot be justified as a modified res judicata rule because res judicata cannot apply to a claim that will always be premature on a first petition.@[78] The Ninth Circuit declined to decide the constitutional question, however, instead holding that a competency to be executed claim may be asserted in a second petition because it Adoes not fall within the rubric of [28 U.S.C.] ' 2244.@[79] The Supreme Court, without considering the Suspension Clause issue, affirmed.[80] Nonetheless, to avoid similar Suspension Clause problems, other courts may conclude that the AEDPA=s restrictions on second and successive petitions do not apply to claims that could not be adjudicated in the initial petition because not yet available for decision.[81]

But whether the Suspension Clause comes into play may depend on whether the Aunripe@ claim was presented in the initial petition. If the Aunripe@ claim was not presented in the first petition, and is later presented in a subsequent petition, the AEDPA=s restrictions on second and successive petitions may apply without implicating the Suspension Clause. In Martinez-Villareal, the petitioner presented the competency claim in his initial habeas application, and it was dismissed as Apremature@ by the district court. After the claim became ripe, he again moved for habeas relief on that claim. AThis may have been the second time that respondent had asked the federal courts to provide relief on his Ford claim, but this does not mean that there were two separate applications, the second of which was necessarily subject to ' 2244(b).@[82] In cases where, unlike the petitioner in Martinez-Villareal, a competency-to-be-executed claim was presented in a second or successive petition, but not raised in the initial petition, the Fifth and Eleventh Circuits have held that the AEDPA=s bar to consideration of the claim does not amount to a suspension of the writ.[83] The Tenth Circuit concurs with this view, at least where the facts to support the competency claim were available at the time of the filing of the original petition.[84]

Suspension Clause issues may also arise regarding the AEDPA=s restrictions on second and successive applications if the applicant presents a colorable claim of actual innocence in the subsequent filing. The Fourth and Fifth Circuits have relied on Felker to reject Suspension Clause challenges in such circumstances.[85] However, in Triestman v. United States,[86] the Second Circuit expressly disagreed that Felker was controlling. In Triestman, the ' 2255 movant presented a claim of innocence under Bailey v. United States.[87] The court noted, Athis case involves a situation that the Felker court did not face: Congress has arguably cut off all post-conviction relief for a claim of actual innocence that was based on the existing record and that could not have been effectively brought previously.@[88] Nonetheless, the Triestman court did not resolve the Suspension Clause issue because it found that precluding collateral review of Triestman=s claim violated both due process and the Eighth Amendment. The Third Circuit has similarly stated,Awere there no other avenue of judicial review available for a party who claims that s/he is factually or legally innocent . . . we would be faced with a thorny constitutional issue,@ but rejected petitioner=s Suspension Clause challenge to the AEDPA=s restrictions on his raising a claim of innocence under Bailey in a second motion because the claim could be raised in 28 U.S.C. ' 2241 habeas petition.[89] The First Circuit has also concluded that a claim of Aactual innocence@ allows a petitioner to bypass the gatekeeping requirements of amended ' 2255 and proceed under ' 2241.[90]

In addition, although Felker held that the AEDPA=s restrictions on the filing of second and successive applications did not constitute a suspension of the writ, it did not address the Act=s restrictions on the filing of an initial application. Several courts have held that applying the AEDPA=s statute of limitations provisions[91] to bar litigation of an initial application filed within the limitations period does not violate the Suspension Clause per se.[92] If, however, the applicant makes a colorable showing of actual innocence under Schlup v. Delo,[93] the foreclosure of collateral review in such circumstances may suspend the writ.[94]

Finally, Suspension Clause challenges to AEDPA=s new limitation on relief, 28 U.S.C. ' 2254(d), have failed.[95]

B. Article III.

In addition to finding no suspension of the writ by the AEDPA=s provisions affecting second or successive applications, in Felker v. Turpin the Supreme Court rejected an Article III challenge to that portion of those provisions which remove the Court=s authority to review by appeal or petition for writ of certiorari a decision of a court of appeals exercising its Agatekeeping@ function over a successive petition.[96] The Court conclude that because the AEDPA does not repeal its authority to entertain an original petition for habeas corpus, Athere can be no plausible argument that the Act has deprived this Court of appellate jurisdiction in violation of Article III, ' 2.@[97]

In contrast, AEDPA=s limitation on habeas relief, codified at 28 U.S.C. ' 2254(d), has been interpreted so as to be consistent with Article III. In (Terry) Williams v. Taylor,[98] the Court reiterated the longstanding proposition that A>federal courts, even on habeas, have an independent obligation to say what the law is,=@and held that in order to properly employ ' 2254(d)(1), the federal court is obligated first to determine if there is a constitutional violation. If not, the court need not proceed further to conclude that habeas relief is not warranted under ' 2254(d)(1).[99] If, however, the issue before the court is meritorious, the court must then determine whether habeas provides a remedy by deciding whether the state court=s adjudication finding no violation is Acontrary to@ or an Aunreasonable application of@ federal law as determined by the Supreme Court.[100] Williams appears to overrule prior circuit case law holding a narrower construction of ' 2254(d) does not violate Article III.[101]

Finally, the requirement in 28 U.S.C. ' 2244(b)(3)(D) that a court of appeals decide within 30 days whether a second or successor application falls within the AEDPA=s Agatekeeping@ provisions, is Ahoratory or advisory rather than mandatory@ and therefore presents no constitutional difficulty.[102]

C. Due Process Clause.

Few due process attacks have been made on the statute. Petitioners have argued that the new limitation on habeas relief codified at 28 U.S.C. ' 2254(d) offends fundamental principles of justice by depriving all persons of a long-established forum for the vindication of constitutional rights. Several courts have found this argument unpersuasive.[103]

The requirement in 28 U.S.C. ' 2244(b)(3)(D) that a court of appeals decide within 30 days whether a second or successive application falls within the AEDPA=s Agatekeeping@ provisions does not violate the Due Process Clause.[104] In addition, the Fifth Circuit has concluded that Adenying federal court review of a successive habeas application alleging the constitutional violations resulted in the conviction of an innocent person@ does not contravene due process.[105]

Several courts held that the Due Process Clause might be implicated if a federal prisoner who was entitled to relief because factually innocent under the Supreme Court=s decision in Bailey v. United States, 116 S. Ct. 501 (1995), were barred from obtaining such relief by the limitations on second and successive ' 2255 motions contained in ' 2255 & 8,[106] and had no other avenue for relief.[107] Some courts concluded that a due process challenge on this basis could be denied on the assumption that although the ' 2255 remedy was inadequate, a prisoner could raise a Bailey claim in a habeas petition under 28 U.S.C. ' 2241 and obtain relief.[108]

D. Ex Post Facto Clause.

Application of the AEDPA to a case where the petitioner exhausted her state remedies prior to the date of the AEDPA=s enactment does not violation the Ex Post Facto Clause.[109] In addition, ex post facto challenges to various AEDPA provisions have been resoundingly rejected.[110]

E. Eighth Amendment.

The Fifth Circuit has held that denying federal court review of a second or successive habeas application alleging that constitutional violations resulted in the conviction or an innocent person does not violate the Eighth Amendment.[111] However, applying the AEDPA=s statute of limitations to foreclose review of an initial application for relief in a case where a colorable showing of factual innocence can be made may violate the Cruel and Unusual Punishments Clause.[112]

V. STATUTE OF LIMITATIONS -- AEDPA '' 101 & 105, codified at 28 U.S.C. '' 2244(d) & 2255 & 6.

Sections 101 and 105 of the AEDPA create a new one-year time period within which state and federal prisoners must file a collateral attack in the federal courts. This constitutes a dramatic change in habeas practice. The Supreme Court has long held that Ahabeas corpus provides a remedy . . . without limit of time,@[113] and before its amendment by the AEDPA, ' 2255 provided that a motion could be made Aat any time.@[114] Indeed, the only pre-AEDPA timeliness requirement was that an application for habeas corpus or ' 2255 relief be filed without prejudicial delay.[115]

AEDPA ' 101 amends 28 U.S.C. ' 2244, and AEDPA ' 105 amends 28 U.S.C. ' 2255 to state as follows:

' 2244. Finality of determination

* * *

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactive to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through exercise of due diligence.

(2) 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.

28 U.S.C. ' 2244(d) (as amended by AEDPA ' 101).

' 2255. Federal custody; remedies on motion attacking sentence

* * *

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

* * *

28 U.S.C. ' 2255 & 6 (as amended by AEDPA '105).

These provisions establish a one-year limitations period for persons seeking habeas corpus or ' 2255 relief in federal court. Within the one-year period, state prisoners must file a ' 2254 habeas corpus petition, and federal prisoners must file a ' 2255 motion.[116] Death-sentenced state prisoners should also file a petition within the one-year period in order to comply with the statute of limitations provision; a request for appointment of counsel under McFarland v. Scott, 512 U.S. 849, 114 S. Ct. 2568, 129 L.Ed.2d 666 (1994), may be insufficient.[117]

For prisoners appearing in propria persona, the Amailbox rule@ announced in Houston v. Lack, 487 U.S. 266 (1988), applies such that a habeas petition or ' 2255 motion is Afiled@ for purposes of the one-year statute of limitations on the date the prisoner delivers it to prison authorities for mailing to the court.[118] In addition, under such circumstances the petition or motion need not be accompanied by the required filing fee or a properly completed in forma pauperis application so long as these documents are sent Awithin a reasonable time after the petition and there is no evidence of bad faith on Petitioner=s part.@[119]

If an applicant files a habeas petition or ' 2255 motion in the wrong court, the district court should transfer the application to the appropriate jurisdiction, rather than dismiss without prejudice, if the application would be time-barred if the case were dismissed.[120]

The AEDPA did not amend Rule 9(a), Rules Governing ' 2254 Cases, 28 U.S.C. foll. ' 2254, or Rule 9(a), Rules Governing ' 2255 Proceedings, 28 U.S.C. foll. ' 2255. As a result, a timely application may still be dismissed for substantial delay.[121]

A. For State Prisoners, When does the Limitations Period Begin to Run?

Under ' 2244(d), the one-year limitation period for state prisoners begins to run from the Alatest@ of four possible dates. The main triggering date is the date on which the judgment became Afinal by conclusion of direct review or the expiration of time for seeking such review.@ ' 2244(d)(1)(A). The statute also provides three other potential triggering dates, each of which may refer to a point in time arising after the conclusion of direct review. These are: the date on which unconstitutional State action impeding the filing of a petition was removed, ' 2244(d)(1)(B); the date on which a new constitutional right was recognized by the Supreme Court and made retroactive to collateral cases, ' 2244(d)(1)(C); or the date on which the factual predicate of the claim or claims presented Acould have been discovered through the exercise of due diligence.@ ' 2244(d)(1)(D).

It is still not clear when the limitations period begins to run if a petition contains multiple claims with different triggering dates. If the petition is filed more than a year after the conclusion of direct review, will only those claims impeded by state action, based on a newly recognized right, or discovered through due diligence be considered timely? Or is the existence of one claim filed within one year of any of the triggering dates enough to render the entire petition timely? At this time, there are no answers to these questions. For this reason, the safest course is to file all potential claims in a single application within one year of the main triggering date B Athe conclusion of direct review or the expiration of the time for seeking such review.@

1. Section 2244(d)(1)(A): The date on which the judgment became Afinal by conclusion of direct review or the expiration of time for seeking such review.@

For most state prisoners, a federal habeas petition must be filed within a year from Athe date on which the judgment became final by conclusion of direct review or the expiration of time for seeking such review.@ 28 U.S.C. ' 2244(d)(1). So when is that?

The emerging consensus is that a judgment becomes Afinal@ on the date of completion of certiorari proceedings before the United States Supreme Court, or when the 90-day period for filing a certiorari petition expires.[122] If a certiorari petition is filed, it is the date of the denial of certiorari that is the date of finality, not the date the certiorari denial is filed and docketed with the court of appeals.[123] Absent the suspension of an order denying certiorari by the Court or a Justice, it is the date of the denial of certiorari that controls, notwithstanding the fact that the defendant could have, or did, file a petition for rehearing following the denial of certiorari.[124]

Exactly how the year will be counted is not yet clear. Some courts have used Fed. R. Civ. P. 6 to compute the one-year period, but others have not.[125] In determining when the statute of limitations runs, the Seventh Circuit has adopted an Aanniversary rule:@ AThe first day of the one-year limitation period is the day after the Supreme Court denies certiorari, giving defendants until the close of business on the anniversary date of the certiorari denial to file their [application]. The anniversary date will be the last day to file even when the intervening period includes the extra leap year day.@[126]

If a state has a discretionary review procedure whereby a criminal defendant is provided appeal as of right to an intermediate state court, and that decision is subject to discretionary review by the state court of last resort, but petitioner did not seek such discretionary review, the judgment is final on the date on which the time to seek such review expires.[127] Similarly, if the petitioner filed no appeal, the judgment is final on the date on which the time to appeal expires under state law.[128]

Finally, in cases where the appellate court partially or wholly reverses a defendant=s conviction or sentence, or both, the statute of limitations does not begin to run until the conclusion of direct review of the amended judgment.[129]

2. Three other triggering dates: Sections 2244(d)(1)(B), (d)(1)(C) and (d)(1)(D) (and sections 2255 & 6(1), (2) & (3)).

Section 2244(d) provides for three other potential triggering dates from which the one-year limitation period may run, each of which may refer to a point in time arising after the conclusion of direct review. These are: Athe date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action,@ ' 2244(d)(1)(B); Athe date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactive to cases on collateral review,@ ' 2244(d)(1)(C); and Athe date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,@ ' 2244(d)(1)(D). Because the parallel provisions for federal prisoners contained in ' 2255 & 6 are almost identical, they will also be discussed here.

a. The date on which governmental action impeding the filing of a petition was removed: '' 2244(d)(1)(B) and 2255 & 6(2).

A habeas petition or ' 2255 motion is timely if filed within one year of the date on which an unconstitutional governmental action impeding the filing of the petition or motion was removed.[130] It may be that if a petitioner can demonstrate that the government is holding exculpatory material under Brady v. Maryland,[131] then the one-year limitation period does not begin to run until the petitioner received the evidence.[132] In addition, a pro per prisoner who can demonstrate a constitutional violation of the right of access to the courts under Lewis v. Casey[133] B that he diligently pursued his federal claims but was prevented from doing so as a result of deficiencies in the prison law library B may be able to rely on these provisions to extend the time to file a petition.[134] These provisions are, however, unavailable to a petitioner where the government=s actions did not prevent the filing of a petition.[135]

b. The date on which a new right was recognized by the Supreme Court and made retroactive to cases on collateral review: '' 2244(d)(1)(C) & 2255 & 6(3).[136]

A habeas petition or ' 2255 motion is timely if it asserts a newly recognized right and is filed within a year of the date on which that new right was recognized by the Supreme Court and made retroactive to cases on collateral review.[137] There is a split in the circuits regarding when this is.[138] The earliest triggering date is that used by the Second Circuit. That court has held that the one year starts when the new right is announced by the United States Supreme Court.[139] The Fourth and Ninth Circuits, in contrast, have held that the limitations period begins to run only when the Supreme Court explicitly makes the rule apply retroactively to prior convictions.[140] The Third Circuit has declined to decide Awhether a right must be made applicable on collateral review by the Supreme Court in order to commence the limitations period, or whether its retroactive application by the Court of Appeals for the Circuit encompassing the District Court in which the prisoner was sentenced will suffice,@ where the application was timely under either rule.[141] Regardless, it appears that premature filing of an application for relief before the right has been made retroactive to cases on collateral review is not a problem.[142]

Finally, the triggering dates in ' 2244(d)(1)(C) and ' 2255 & 6(3) may also establish a time limit for filing a second and successive application for habeas corpus or ' 2255 relief based on a newly recognized right.[143]

c. The Adate on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence:@ '' 2244(d)(1)(D) & 2255 & 6(4).[144]

The one-year period for ' 2254 petitions and ' 2255 motions may also begin to run from Athe date upon which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.@[145] These triggering dates Aensure[] that habeas relief may be sought even after a conviction has been final for one year, in cases where newly discovered evidence supports petitioner=s claim.@[146] However, ' 2244(d)(1)(D), and the parallel provision for federal prisoners, ' 2255(4), Ado[] not postpone the accrual of limitations based on a pro se litigant=s or an attorney=s belated discovery or realization of the legal consequences of known facts. Rather, postponed accrual is in order only if the facts themselves supporting a legal claim were undiscoverable in a timely fashion, despite due diligence.@[147] Moreover, these provisions Ado[] not convey a statutory right to an extended delay. . . while a habeas petitioner gathers every possible scrap of evidence that might, by negative implication, support his claim.[148] For this reason, a litigant relying on these provisions Amust prove his claim through facts that he could have discovered only in the year before he filed his [petition] or motion.@[149]

Accordingly, where the facts supporting the claims presented were known to the applicant at the time of trial, ' 2244(d)(1)(D) and ' 2255 & 6(4) do not apply.[150] Where the factual predicate of the claim can be found in a court decision, the claim is not discoverable by an incarcerated prisoner exercising Adue diligence@ until the date the opinion became accessible in the prison law library, rather than the date the opinion was issued: AUnlike the general population which has greater access to court opinions, prisoners must rely exclusively upon the prison law library to discover information contained in new cases.@[151] This does not mean, however, that the factual predicate of a claim may consist of the state court=s rulings rejecting petitioner=s claims.[152]

Finally, the triggering dates in ' 2244(d)(1)(D) and ' 2255 & 6(4) may also establish a time limit for filing a second and successive application for habeas corpus or ' 2255 relief based on claims of newly discovered evidence.[153]

B. For Federal Prisoners, When does the Limitations Period Begin to Run?

Under ' 2255 & 6, as amended by AEDPA ' 105, the one-year limitations period runs from the Alatest@ of four possible dates. The main triggering date for ' 2255 motions is Athe date on which the judgment of conviction becomes final.@[154] The statute also provides three other possible triggering dates, each of which may refer to a point in time arising after the judgment of conviction becomes final. These are: the date on which unconstitutional governmental action impeding the filing of a petition was removed, ' 2255 & 6(2); the date on which a new right was recognized by the Supreme Court and made retroactive to collateral cases, ' 2255 & 6(3); or, the date on which the factual predicate of the claim or claims presented Acould have been discovered through the exercise of due diligence.@ ' 2255 & 6(4). The meaning of these three latter provisions is discussed in ' A.2., above.

It is still not clear when the limitations period begins to run if a petition contains multiple claims with different triggering dates. If the petition is filed more than a year after the conclusion of direct review, will only those claims impeded by state action, based on a newly recognized right, or discovered through due diligence be considered timely? Or is the existence of one claim filed within one year of any of the triggering dates enough to render the entire petition timely? At this time, there are no answers to these questions. For this reason, the safest course is to file all potential claims in a single application within one year of the main triggering date B Athe date on which the judgment of conviction becomes final.@

So when is that? It depends on whether a petition for writ of certiorari was filed following appeal, whether an appeal was filed at all, and whether the appeal challenged the conviction as well as the sentence.

More specifically, if certiorari is sought following affirmance on direct appeal, the judgment becomes final on the date of denial of the certiorari petition by the United States Supreme Court.[155] It is the date of the denial of certiorari that is the triggering date, not the date the certiorari denial is filed and docketed with the court of appeals.[156] Absent the suspension of an order denying certiorari by the Court or a Justice, it is the date of denial of certiorari that controls, notwithstanding the fact that the defendant could have, or did, file a petition for rehearing following the denial of certiorari.[157]

Exactly how the year will be counted is not yet clear. Some courts have used Fed. R. Civ. P. 6 to compute the one year period, but others have not.[158] The Seventh Circuit has adopted an Aanniversary rule@: AThe first day of the one-year limitation period is the day after the Supreme Court denies certiorari, giving defendants until the close of business on the anniversary date of the certiorari denial to file their [' 2255 motion]. The anniversary date will be the last day to file even when the intervening period includes the extra leap year day.@[159]

If certiorari is not sought, the circuits have split over whether the judgment becomes Afinal@ when the 90-day period for filing a certiorari petition expires, or when the mandate issues from the court of appeals.[160] Until this split is resolved, a motion should be filed within a year of when the court of appeals issued its mandate.

If no appeal is filed, the judgment becomes final ten days after the entry of judgment, when the time to file a notice of appeal has expired.[161] Note that it is the date on which the Ajudgment of conviction@ becomes final that is critical. The Eleventh Circuit has held that if no appeal of the conviction is filed B e.g., an appeal is filed that challenges only the sentence B then the one-year limitation period begins to run ten days after entry of judgment.[162]

Finally, in cases where the appellate court wholly or partially reverses a defendant=s conviction, the statute of limitations does not begin to run until the date on which the amended judgment becomes final.[163]

C. Cases Where All Triggering Dates Occurred Before April 24, 1996.

Under the Supreme Court=s decisions in Lindh v. Murphy[164] and Slack v. McDaniel,[165] the AEDPA=s statute of limitations cannot be applied to cases filed in the district court before April 24, 1996. Soon after enactment of the AEDPA, however, questions arose regarding the effect of the one-year time limits on cases commenced after the date of enactment, where more than one year may have passed from the various Atriggering@ dates enumerated in '' 2244(d) and ' 2255 & 6. These questions are now settled. The courts of appeal unanimously agree that in such cases, the one-year limitations period began to run on the date of enactment, and any ' 2254 petition or ' 2255 motion filed within one year of April 24, 1996 is timely filed.[166] The courts are split, however, as to whether this one year Agrace period@ ended on April 23[167] or April 24, 1997.[168]

D. Tolling of The Limitations Period.

After determining the date on which the one-year limitations period begins to run, in order to ascertain whether a ' 2254 petition or ' 2255 motion is timely filed, it must next be determined if the limitations period is tolled for any reason and if so, the number of days the limitations period is tolled. There are two ways in which the limitations period may be tolled. First, for state prisoners, ' 2244(d)(2) contains a statutory tolling provision. Pursuant to this provision, the limitations period may be tolled during the time the petitioner seeks relief in state collateral proceedings. Second, the statute of limitations may be equitably tolled for both state and federal prisoners. Each of these tolling principles will be discussed in turn.

1. For State Prisoners: Statutory Tolling Under ' 2244(d)(2).

For state prisoners, including those whose limitations period began to run on the date of the AEDPA=s enactment,[169] 28 U.S.C. ' 2244(d)(2) tolls the limitations period during Athe time . . . which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.@ This section appears intended to allow a petitioner to exhaust state remedies without the time spent doing so counting towards the one-year limitations period. Unfortunately, it has also seriously complicated the previously simple process of exhaustion.[170]

a. AA properly filed application . . .@.

Under ' 2244(d)(2), only a Aproperly filed@ state postconviction application will toll the running of the one-year limitations period. The text and legislative history of the AEDPA do not shed any light on what Congress intended by the term Aproperly filed@ as that term is used in ' 2244(d)(2).[171] The courts of appeal agree that a Aproperly filed@ state application is one that is permissible under state law, in that it comports with the state=s procedural requirements, such as the correct place for filing, timeliness, and notice to the respondent.[172] These same courts split, however, as to whether a state postconviction application which is denied by the state court for failing to comply with the state=s procedural rules is Aproperly filed.@[173]

The Supreme Court recently granted certiorari in Artuz v. Bennett,[174] to resolve this conflict. The question presented is:

Is state court post-conviction application >properly filed= within meaning of ' 2244(d)(2), which tolls one-year statute of limitations for habeas corpus petitions in 1996 Antiterrorism and Effective Death Penalty Act, if it is filed in court that does not have power to hear merits of application?

The Seventh Circuit is one of those circuits which has concluded that a state postconviction application is not Aproperly filed@ if it is denied by the state court for failing to comply with the state=s procedural rules. However, if the state court=s order makes no mention whether its decision is on a procedural ground or on the merits, that court will presume that the denial is on the merits, and therefore Aproperly filed@ for purposes of ' 2244(d)(2).[175] Petitioners in the Seventh Circuit who are unsure whether a state filing will be found procedurally barred and therefore not Aproperly filed@ so as to toll the running of the limitations period may protect themselves by filing in both state and federal court. In such a situation, A[t]he federal action should be stayed while the state court decides what to do;@ dismissal of the federal petition by a district court is not proper Awhen that step would jeopardize the timeliness of a collateral attack.@[176]

b. A. . . for State post-conviction or other collateral review . . .@

There is a split in the circuits regarding the compass of ' 2244(d)(2)=s phrase Aapplication for State post-conviction or other collateral review.@ One interpretation is that the word AState@ modifies both Apost-conviction@ and Aother collateral review,@ and therefore no statutory tolling is allowed under ' 2244(d)(2) during the time a petition containing unexhausted claims is pending in federal court.[177] Other courts, however, have ruled to the contrary, holding that ' 2244(d)(2) can be triggered by a prior federal habeas action that was dismissed withoutprejudice.[178]

c. Awith respect to the pertinent judgment or claim . . .@

Under ' 2244(d)(2), a state postconviction petition will not toll the running of the limitations period unless it addresses one or more of the claims included in the federal petition: Aa state petition for post-conviction or other collateral review that does not address one or more grounds of the federal habeas petition in question is not a review >with respect to the pertinent judgment or claim= within the meaning of 28 U.S.C. ' 2244(d)(2), and therefore does not toll the one-year AEDPA statute of limitations.@[179] Moreover, because violations of state law are not cognizable in federal habeas corpus proceedings,[180] it may be that a state postconviction petition raising only state law claims does not qualify for statutory tolling.[181]

This does not mean, however, that the limitations period is tolled only with respect to those claims actually filed in the state postconviction proceedings. To hold otherwise would create difficulty for petitioners who exhaust certain claims on direct appeal and exhaust other claims in state postconviction proceedings. Noting that it would be inconsistent with the thrust of the AEDPA to require the filing of two federal habeas petitions B one within a year of the completion of direct review and one within a year of the completion of postconviction proceedings B most courts have concluded that if a petitioner has unexhausted claims pending on state collateral review, the statute of limitations is also tolled for any exhausted claims.[182]

d. Ais pending . . .@.

Even a Aproperly filed@ application for state postconviction or other collateral review tolls the statute of limitations only while the application is Apending.@ An application for postconviction relief is Apending@ once it is filed in the state court. That is, once the one-year statute of limitations is triggered and begins to run, it does not stop running until a state postconviction application is properly filed in state court.[183] Accordingly, any state postconviction petition must be properly filed within a year of the conclusion of direct review (or one of the other triggering dates), in order to toll the running of the limitations period.[184]

For these reasons, the date of filing of the state postconviction application has important implications on the ability to seek federal habeas corpus relief. For example, where state law allows postconviction petitions to be filed after the conclusion of direct review and provides more than a year to file such petitions, if state counsel uses the entire time allowed under state law, the client=s ability to obtain federal habeas review may be forfeited because the one-year limitations period will have run before the state postconviction petition is Apending.@[185]

Once an application for state postconviction or other collateral review is properly filed in the state court it remains Apending@ all of the time during which a state prisoner is attempting, through the proper use of state procedures, to exhaust state remedies before seeking federal habeas relief.[186] The Third Circuit has held this includes the time for seeking discretionary review of the denial of state postconviction relief by the state appellate courts, whether or not discretionary review is sought.[187] The Eleventh Circuit has determined that a state postconviction petition remains Apending@ until the mandate issues, if that is what is provided for by state law.[188] However, whatever the action taken by the state court that renders the application no longer Apending,@ it appears irrelevant when or whether the applicant actually receives notice of that action.[189] Moreover, the time it takes to complete certiorari proceedings before the United States Supreme Court following the denial of state postconviction relief does not toll the limitations period under ' 2244(d)(2).[190]

Importantly, once the state=s highest court has denied postconviction relief, a federal habeas petition must be filed within that portion of the limitations period that remained at the time the application for state postconviction or other collateral review was filed..[191] For example, if the state postconviction petition is filed on the 360th day following the conclusion of direct review, once the state application is no longer Apending,@ the federal petition must be filed within the remaining five days of the one-year limitations period or it will be deemed time-barred.

2. For Both State and Federal Prisoners: Equitable tolling.

For both state and federal prisoners seeking collateral relief in federal court, including those whose convictions became final before April 24, 1996, the one-year time limits in ' 2244(d) and ' 2255 & 6 are not jurisdictional, but statutes of limitations subject to equitable tolling.[192] Equitable tolling may extend the limitations period beyond one year. Equitable tolling, however, will be granted only if Arare,@ Aextraordinary@ or Aexceptional@ circumstances make it impossible to file a petition on time.[193] Moreover, because it is an equitable doctrine, equitable tolling is available only if the applicant can show Aclean hands@ -- that is, reasonable diligence in the investigation and presentation of his or her claims.[194]

So, what are the circumstances where equitable tolling is available? This is a difficult question, because the availability of equitable tolling is necessarily a case-specific inquiry. However, some generalizations can be made. Ordinarily, mere excusable neglect,[195] ignorance of the limitations period,[196] lack of legal training,[197] lack of access to a law library,[198] lack of legal representation,[199] or the fact of incarceration[200] are not sufficient to justify equitable tolling. Even a claim of actual innocence (as opposed to a showing of innocence) does not constitute an Aextraordinary circumstance@ warranting equitable tolling.[201] The courts will look to non-habeas cases Afor further elucidation of when to toll.@[202]

If the district court denies equitable tolling as a matter of law, the court of appeals will review that decision de novo.[203] The district court=s decision whether to grant equitable tolling, however, is reviewed by the court of appeals for an abuse of discretion.[204] Although the Fifth Circuit has warned: AWe must be cautious not to apply the statute of limitations too harshly,@[205] the Fourth Circuit has cautioned that Aany invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes.@[206]

Situations where equitable tolling has been held to be available include:

B Reliance on a court order: If a petition was not timely filed in reliance on a court order then the limitations period may be equitably tolled.[207]

B Judicial error: If a timely-filed application is rendered untimely as a result of judicial error, that error may be a ground for equitably tolling the limitations period.[208]

B Government interference with timely filing: The government=s failure to disclose exculpatory information and its failure to take remedial action once confronted with the exculpatory information may constitute circumstances sufficiently extraordinary to warrant equitable tolling of the statute of limitations.[209] Similarly, where an incarcerated pro se litigant depends on prison authorities to obtain a check to pay a filing fee and also to mail the check and his petition to the district court, the statute of limitations may be equitably tolled during any delay on the part of prison officials in complying with petitioner=s instructions.[210]

B Substitution of counsel: If prior counsel diligently pursued preparation of the motion, but withdrew after accepting employment elsewhere, this is an Aextraordinary circumstance@ over which petitioner had no control, and thus justifies tolling the one-year statute of limitations.[211] But that does not mean that new federal counsel will necessarily be entitled to an entire year to prepare the petition.[212]

B Counsel=s errors: Although some courts have held that mere attorney negligence is not a sufficient basis for finding the statute of limitations equitably tolled,[213] others have determined that the limitations period may be tolled by an error of counsel, if that error permitted the statute of limitations to run.[214] Note, however, that mere allegations of ineffective assistance of counsel on direct appeal does not equitably toll the limitations period.[215]

B Mental incompetence: Where mental capacity is at issue, and the record discloses a genuine basis for concern, the limitations period may be tolled until the court makes a competency determination.[216]

B Lack of notice of when the limitations period began to run. AMerely because court decisions are matters of public record is not a sufficient reason to assume that litigants who have no meaningful access to such records are aware of the court decisions that affect their cases. Absent reasonable notice of the decision rendering petitioner=s conviction final, it is inequitable to begin the one-year statute of limitations period on the day petitioner=s conviction became final.@[217]

Some courts have considered a motion for an extension of time based on equitable tolling where the motion was filed before the limitations period had run.[218] However, it may be that in non-capital cases, no case or controversy is before the court until a petition is filed, and therefore in such cases, the court may not consider a motion for extension of time based on equitable tolling.[219] Where it appears the limitations period has already run, the district court may not consider a request for equitable tolling unless a petition is filed with the request.[220] Finally, because authorization must be received from the court of appeals to file a second or successive application for relief in the district court, any motion asserting equitable tolling and seeking an extension of time to file such an application may have to be filed in the court of appeals.[221]

E. The Statute of Limitations and Amendment of a Habeas Corpus Petition or Section 2255 Motion: The ARelation-Back@ Doctrine.

A ' 2254 habeas corpus petition or ' 2255 motion may be amended or supplemented in the same manner as any other civil pleading.[222] Federal Rule of Civil Procedure 15(a) allows amendment once as of right without leave of court at any time before the government files a responsive pleading, and any time thereafter with leave of court or written consent of the government. Rule 15(a) provides for liberal amendment of original pleadings: leave to amend Ashall be freely given when justice so requires.@

AEDPA=s statute of limitations provision complicates the amendment process. Any amended ' 2254 petition or ' 2255 motion filed outside the one-year limitation period may be considered untimely unless the court determines that the amendment Arelates back@ to the date of the original motion. This determination is controlled by Federal Rule of Civil Procedure 15(c),[223] which provides, in pertinent part: AAn amendment of the pleading relates back to the date of the original pleading when . . . (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.@ Thus, whether an amended application for relief will relate back depends on whether the new allegations in the amended pleading involve the same conduct, transaction, or occurrence as that involved in the claims presented initially. The emerging view is that an amendment to a ' 2254 petition or ' 2255 motion may be deemed to relate-back to the original filing only if it clarifies a claim presented in the initial filing. If the particular claim to be amended is completely new, even though it arises from the same conviction and sentence, it will not Arelate back@ to the timely-filed initial motion.[224]

Whether an amended pleading Arelates back@ to the date of the original filing is critical in ' 2254 cases where the original petition is Amixed,@ i.e., it contains both exhausted and unexhausted claims.[225] Pre-AEDPA, if a habeas petitioner filed a mixed petition, a federal court generally would dismiss the petition without prejudice pending exhaustion of any remaining state remedies. The AEDPA=s one-year statute of limitations complicates that previously simple procedure. A number of courts have held that if the initial petition containing unexhausted claims is dismissed without prejudice, any federal petition filed post-exhaustion may be untimely because it does not relate back, even if the initial petition was timely filed.[226]

It appears that this express or implied reservation of jurisdiction over the action despite dismissal of the petition is critical to whether or not a subsequent petition will relate back to an earlier filing.[227] Some lower courts retain jurisdiction, and therefore avoid statute of limitations problems, by holding federal proceedings in abeyance while petitioner exhausted any unexhausted claims.[228] Some lower courts have attempted to protect a prisoner who has timely filed an initial application by expressly allowing leave to reinstate the petition B using the original filing date B when state remedies are properly exhausted.[229] Still others have dismissed the petition without prejudice, and granted leave to amend the petition following exhaustion, with the understanding that the amended petition would Arelate-back@ to the date of filing of the original petition.[230]

F. Is the Applicant Entitled to the Entire One-Year Limitations Period?

Another caution: Even though it is error for a district court to fail to afford an applicant a full year within which to file, the Fourth Circuit will review that decision to determine whether the error was harmless.[231]

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[1] Pub. L. 104-132, 110 Stat. 1214 (1996).

[2] See Mincey v. Head, 206 F.3d 1106, 1130 n.58 (11th Cir. 2000).

[3] West v. Vaughn, 204 F.3d 53, 59 (3d Cir. 2000).

[4] Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 2068, 138 L.Ed.2d 481 (1997).

[5] This article covers only published decisions from April 24, 1996 to June 30, 2000, and attempts to include all AEDPA decisions by the United States Supreme Court and the United States Courts of Appeal. It also includes those published district court decisions that consider novel questions of AEDPA law.

[6] See, e.g., (Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000) (rejecting narrow construction of federal habeas review under 28 U.S.C. ' 2254(d) adopted by all circuit courts in favor of more moderate view); (Michael) Williams v. Taylor, ___ U.S. ___, 120 S. Ct. 1479, 146 L.Ed.2d 435 (2000) (rejecting Fourth Circuit=s adoption of strict liability standard for determining whether petitioner was entitled to federal evidentiary hearing under 28 U.S.C. ' 2254(e), and holding that ' 2254(e) is triggered only by a finding of fault on the part of petitioner); Hohn v. United States, 524 U.S. 236, 118 S. Ct. 1969, 141 L.Ed.2d 242 (1998) (rejecting government=s argument that the Supreme Court has no jurisdiction to review by petition for writ of certiorari the denial of an application for a certificate of appealability by a circuit judge or the court of appeals); Stewart v. Martinez-Villareal, 523 U.S. 637 , 118 S. Ct. 1618, 140 L.Ed.2d 849 (1998) (rejecting State=s argument that petitioner=s claim that he was incompetent to be executed under Ford v. Wainwright, 477 U.S. 399 (1986), raised for the second time after it was dismissed without prejudice as premature, was a second or successive application under 28 U.S.C. ' 2244(b), and concluding therefore that petitioner does not require prefiling authorization from the court of appeals before raising claim in district court); Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 138 L.Ed.2d 481 (1997) (rejecting State=s argument that the AEDPA=s amendments to the habeas corpus provisions contained in Chapter 153 of Title 28, U.S.C., apply to all pending cases and concluding that these amendments generally apply only to cases filed after the AEDPA=s date of enactment); Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L.Ed.2d 827 (1996) (concluding AEDPA does not deprive the Supreme Court of its jurisdiction to entertain original habeas petitions, and rejecting State=s argument that 28 U.S.C. ' 2244(b) cuts off all Supreme Court review of court of appeals= decisions denying leave to file second or successive applications).

[7] See, e.g., (Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000) (granting relief on ineffective assistance of counsel claim); Hull v. Kuyler, 190 F.3d 88 (3d Cir. 1998) (same); Tucker v. Prelesnik, 181 F.3d 747 (6th Cir. 1999) (same); Hall v. Washington, 106 F.3d 742 (7th Cir. 1997) (same); Berryman v. Morton, 100 F.3d 1089 (3d Cir. 1996) (same); Baylor v. Estelle, 94 F.3d 1321 (9th Cir. 1996) (same), cert. denied, 520 U.S. 1151 (1997); LaJoie v. Thompson, ___ F.3d ___, 2000 WL 800973 (9th Cir. June 23, 2000) (holding exclusion of evidence of rape victim=s past sexual abuse by persons other than petitioner violated petitioner=s Sixth and Fourteenth Amendment rights); Bribiesca v. Galaza, ___ F.3d ___, 2000 WL 776640 (9th Cir. June 19, 2000) (affirming district court=s grant of relief on claim that denial of petitioner=s right to represent himself at trial violated the Sixth Amendment); Pickens v. Gibson, 206 F.3d 988 (10th Cir. 2000) (concluding trial court=s admission at sentencing of unconstitutionally-obtained videotaped confession by petitioner to a similar murder was not harmless error and required relief); Paxton v. Ward, 199 F.3d 1197 (10th Cir. 1999) (granting penalty relief in capital case on Confrontation Clause violation, Skipper v. South Carolina, 476 U.S. 1 (1986), error, and prosecutorial misconduct); Barker v. Yukins, 199 F.3d 867 (6th Cir. 1999) (concluding petitioner was denied her right to a jury trial when the state court of appeals engaged in fact finding), cert. denied, ___ S. Ct. ___, 68 U.S.L.W. 3615, 2000 WL 306924 (U.S. June 12, 2000); Spicer v. Roxbury Corr. Inst., 194 F.3d 547 (4th Cir. 1999) (affirming district court=s grant of relief for violation of Brady v. Maryland, 373 U.S. 83 (1963)); Johnson v. Karnes, 198 F.3d 589 (6th Cir. 1999) (granting relief on double jeopardy violation); Long v. Humphrey, 184 F.3d 758 (8th Cir. 1999) (same); Atley v. Ault, 191 F.3d 865 (8th Cir. 1999) (granting relief on petitioner=s claim that the trial court impermissibly failed to conduct an adequate inquiry when notified of defense counsel=s potential conflict of interest); Hogan v. Gibson, 197 F.3d 1297 (10th Cir. 1999) (concluding capital petitioner was denied his constitutional rights under Beck v. Alabama, 447 U.S. 625 (1980), when the trial court refused to instruct the jury on a lesser included offense), ptn. for cert. filed, No. 99-1976 (U.S. June 8, 2000); Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999) (concluding bailiff=s instruction was an improper de facto Allen charge that coerced jury in violation of due process); Smalls v. Batista, 191 F.3d 272 (2d Cir. 1999) (affirming district court=s grant of relief on claim that trial court=s supplemental jury charge deprived petitioner of due process and an uncoerced jury verdict of guilt); Morris v. Cain, 186 F.3d 581 (5th Cir. 1999) (holding reasonable doubt instruction unconstitutional under Cage v. Louisiana, 498 U.S. 39 (1990)).

[8] 28 U.S.C. '' 2241-2255.

[9] See, e.g., Tucker v. Catoe, ___ F.3d ___, 2000 WL 763597 (4th Cir. June 13, 2000) (South Carolina); Buehl v. Vaughn, 166 F.3d 163, 168-69 (3d Cir.) (Pennsylvania), cert. dismissed, 119 S. Ct. 2418 (1999); Cannon v. Johnson, 134 F.3d 683, 685 n.1 (5th Cir. 1998) (Texas); Lucas v. Johnson, 132 F.3d 1069, 1072 (5th Cir.), cert. dismissed, 524 U.S. 965 (1998) (same); Hogue v. Johnson, 131 F.3d 466, 469 n.1 (5th Cir. 1997) (same), cert. denied, 523 U.S. 1014 (1998); Ransom v. Johnson, 126 F.3d 716, 720 (5th Cir.) (same), cert. denied, 522 U.S. 944 (1997); Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997) (same); Hunter v. Bowersox, 172 F.3d 1016, 1021 n.3 (8th Cir. 1999) (Missouri), cert. denied, 120 S. Ct. 987 (2000); Smith v. Stewart, 140 F.3d 1263, 1273 n.3 (9th Cir. 1998) (Arizona), cert. denied, 525 U.S. 929 (1998); Stouffer v. Reynolds, 168 F.3d 1155, 1160 & n.2 (10th Cir. 1999) (Oklahoma); Walker v. Attorney General, State of Oklahoma, 167 F.3d 1339, 1341 n.1 (10th Cir.) (same), cert. denied, 120 S. Ct. 449 (1999); Moore v. Reynolds, 153 F.3d 1086, 1095 (10th Cir. 1998) (same), cert. denied, 526 U.S. 1025 (1999).

[10] 511 U.S. 244, 114 S. Ct. 1483, 128 L.Ed.2d 229 (1994).

[11] Lindh v. Murphy, 521 U.S. 320, 328 n.4, 117 S. Ct. 2059, 2064 n.4, 138 L.Ed.2d 481 (1997).

[12] Id.

[13] See ' XI., infra.

[14] 521 U.S. 320, 336, 117 S. Ct. 2059, 2068, 138 L.Ed.2d 481 (1997).

[15] The AEDPA became effective when it was signed into law on the afternoon of April 24, 1996. See Mincey v. Head, 206 F.3d 1106, 1130 n.58 (11th Cir. 2000) (concluding AEDPA does not govern case where petition was filed the morning of April 24, 1996).

[16] See, e.g., Vega v. Suthers, 195 F.3d 573, 576-77 n.5 (10th Cir. 1999); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.), cert. denied, 120 S. Ct. 369 (1999); Williams v. Johnson, 171 F.3d 300, 303 (5th Cir.), cert. denied, 120 S. Ct. 197 (1999); Thomas v. Taylor, 170 F.3d 466, 468 n.1 (4th Cir.), cert. denied, 527 U.S. 1016 (1999); Bui v. DiPaolo, 170 F.3d 232, 235 (1st Cir. 1999), cert. denied, 120 S. Ct. 1717 (2000); Barrett v. Acevedo, 169 F.3d 1155, 1159 n.2 (8th Cir. 1999) (en banc) (reinstating in part panel=s decision in 143 F.3d 449, 461-62 (8th Cir. 1998)), cert. denied, 120 S. Ct. 120 (1999); Nevers v. Killinger, 169 F.3d 352, 357 (6th Cir. ), cert. denied, 527 U.S. 1004 (1999); Mayabb v. Johnson, 168 F.3d 863, 866 (5th Cir.), cert. denied, 120 S. Ct. 409 (1999); Dunn v. Singletary, 168 F.3d 440, 441 (11th Cir. 1999); Yeatts v. Angelone, 166 F.3d 255, 258 n.2 (4th Cir.), cert. denied, 119 S. Ct. 1517 (1999); Freund v. Butterworth, 165 F.3d 839, 857 n.28 (11th Cir.), cert. denied, 120 S. Ct. 57 (1999); English v. Artuz, 164 F.3d 105, 106 n.1 (2d Cir. 1998); Bean v. Calderon, 163 F.3d 1073, 1077 (9th Cir. 1998), cert. denied, 120 S. Ct. 285 (1999); Everett v. Barnett, 162 F.3d 498, 500 (7th Cir. 1998); United States v. Perkins, 161 F.3d 66, 69 n.1 (D.C. Cir. 1998); Caldwell v. Maloney, 159 F.3d 639, 649 (1st Cir. 1998), cert. denied, 526 U.S. 1009 (1999); Vancleave v. Norris, 150 F.3d 926, 927 (8th Cir. 1998); United States v. Marmolejos, 140 F.3d 488, 489 n.1 (3d Cir. 1998); Long v. Krenke, 138 F.3d 1160, 1163 (7th Cir. 1998).

[17] Slack v. McDaniel, ___ U.S. ___, 120 S. Ct. 1595, ___, ___ L.Ed.2d ___ (2000).

[18] Id., 120 S. Ct. at 1603.

[19] Id., 120 S. Ct. at 1602. Followed Franklin v. Hightower, ___ F.3d ___, 2000 WL 780084 (11th Cir. June 19, 2000).

[20] Id., 120 S. Ct. at 1602 (AFor purposes of implementing the holding in Lindh, it must be recognized that [the standard of review provision in ] ' 2254 is directed to proceedings in the district court while [the certificate of appealability provision in] ' 2253 is directed to proceedings in the appellate courts.@].

[21] Id., 120 S. Ct. at 1602.

[22] Id., 120 S. Ct. at 1605.

[23] Lindh, 521 U.S. at 336, 117 S. Ct. at 2068 (emphasis added).

[24] In re Hanserd, 123 F.3d 922, 934 n.22 (6th Cir. 1997) (discussing Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L.Ed.2d 229 (1994)).

[25] See, e.g., Mueller v. Angelone, 181 F.3d 557, 566-67 (4th Cir.), cert. denied, 120 S. Ct. 37 (1999); Graham v. Johnson, 168 F.3d 762, 783 (5th Cir. 1999), cert. denied, 120 S. Ct. 1830 (2000); In re Minarik, 166 F.3d 591, 599 (3rd Cir. 1999); United States v. Ortiz, 136 F.3d 161, 165 (D.C. Cir. 1998).

[26] See, e.g., (Michael) Williams v. Taylor, ___ U.S. ___, 120 S. Ct. 1479, 1486, 146 L.Ed.2d 435 (2000) (APetitioner filed his federal habeas petition after AEDPA=s effective date,@ so the statute=s limitations on evidentiary hearings contained in 28 U.S.C. ' 2254(e)(2) Aappl[y] to his case.@); (Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct. 1495, 1518, 146 L.Ed.2d 389 (2000) (opinion of O=Connor, J.) (ABecause he filed his petition [after the effective date of the AEDPA], Williams= case is governed by@ 28 U.S.C. ' 2254(d) as amended by the AEDPA). Accord Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000); Van Woudenberg by and through Foor v. Gibson, 211 F.3d 560, 566 (10th Cir. 2000); Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000); Hill v. Johnson, 210 F.3d 481, 484 (5th Cir. 2000); Coe v. Bell, 209 F.3d 815, 822 (6th Cir. 2000), cert. denied, 120 S. Ct. 1716 (2000); Whitmore v. Kemna, 213 F.3d 431, 432 (8th Cir. 2000); Machacek v. Hofbauer, ___ F.3d ___, 2000 WL 680242 (6th Cir. May 26, 2000). See also Tucker v. Catoe, ___ F.3d ___, 2000 WL 763597 (4th Cir. June 13, 2000) (holding ' 2254(d)(1) and statute of limitations provision apply to petition filed after April 24, 1996).

[27] See James v. Gibson, 211 F.3d 543, 549 (10th Cir. 2000); Romero v. Furlong, ___ F.3d ___, 2000 WL 763763 (10th Cir. June 13, 2000); Mackey v. Dutton, ___ F.3d ___, 2000 WL 833624 (6th Cir. June 28, 2000); Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000); James v. Gibson, 211 F.3d 543, 549 (10th Cir. 2000); Flores v. Johnson, 210 F.3d 456, 456 n.1 (5th Cir. 2000); Holladay v. Haley, 209 F.3d 1243, 1247 n.2 (11th Cir. 2000); High v. Head, 209 F.3d 1257, 1262 n.4 (11th Cir. 2000); Scott v. Mitchell, 209 F.3d 854, 863 (6th Cir. 2000); see also Graham v. Dormire, 212 F.3d 437, 439 (8th Cir. 2000) (holding ' 2254(d)(1), as amended by the AEDPA, does not apply to petition filed in the district court before April 24, 1996); see also Dupuy v. Cain, 201 F.3d 582, 585 (5th Cir. 2000) (applying abuse of the writ doctrine, rather than AEDPA=s second or successive provisions, to successive application filed before April 24, 1996); High v. Head, 209 F.3d 1257, 1261 (11th Cir. 2000) (same).

[28] See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).

[29] See Whitmore v. Avery, 179 F.R.D. 252, 255 (D.Neb. 1998).

[30] See Henderson v. Frank, 155 F.3d 159, 163-64 (3d Cir. 1998); Spotville v. Cain, 149 F.3d 374, 376 (5th Cir. 1998); United States v. O=Kaine, 971 F. Supp. 1479, 1480 (S.D. Ga. 1997).

[31] 512 U.S. 849, 114 S. Ct. 2568, 129 L.Ed.2d 666 (1994).

[32] 163 F.3d 530, 540 (9th Cir. 1998) (en banc), cert. denied, 119 S. Ct. 1377 (1999).

[33] See Gosier v. Welborn, 175 F.3d 504, 506 (7th Cir.), cert. denied, 120 S. Ct. 502 (1999); Moore v. Gibson, 195 F.3d 1152, 1160-1163 (10th Cir. 1999), cert. denied, 120 S. Ct. 2206 (2000); Hooks v. Ward, 184 F.3d 1206, 1213 (10th Cir. 1999); Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999), cert. denied, 120 S. Ct. 944 (2000); Williams v. Coyle, 167 F.3d 1036, 1038-40 (6th Cir. 1999); Nobles v. Johnson, 127 F.3d 409, 414-415 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998); Holman v. Gilmore, 126 F.3d 876, 879-880 (7th Cir. 1997), cert. denied, 522 U.S. 1150 (1998); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997), cert. denied, 525 U.S. 859 (1998).

[34] Slack v. McDaniel, ___ U.S. ___, 120 S. Ct. 1595, 1602, 146 L.Ed.2d 542 (2000).

[35] Compare Williams v. Coyle, 167 F.3d 1036, 1040 (6th Cir. 1999) (rejecting, pre-Slack, notion that the filing of a Apreliminary motion@ such as a certificate of appealability commenced a case for purposes of applicability of AEDPA, and concluding therefore that Apreliminary@ McFarland motion could not commence a case for this purpose).

[36] See, e.g., Hyatt v. United States, 207 F.3d 831, 832-33 (6th Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 (3d Cir. 1999); Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999); Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir. 1998) (per curiam); Brown v. Angelone, 150 F.3d 370, 373 (4th Cir. 1998); Ross v. Artuz, 150 F.3d 97, 100 (2d Cir. 1998); United States v. Flores, 135 F.3d 1000, 1002-1005 (5th Cir. 1998), cert. denied, 525 U.S. 1091 (1999); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1286-87 (9th Cir. 1997), cert. denied, 522 U.S. 1099, 523 U.S. 1061 (1998); United States v. Simmonds, 111 F.3d 737, 744-46 (10th Cir. 1997); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc), reversed in other part, 521 U.S. 320 (1997).

[37] See Coe v. Bell, 209 F.3d 815, 823 (6th Cir. 2000), cert. denied, 120 S. Ct. 1716 (2000); Trice v. Ward, 196 F.3d 1151, ___ (10th Cir. 1999), ptn. for cert. filed, No. 99-9518 (U.S. May 10, 2000); Mueller v. Angelone, 181 F.3d 557, ___ (4th Cir.), cert. denied, 120 S. Ct. 37 (1999); Graham v. Johnson, 168 F.3d 762, ___ (5th Cir. 1999), cert. denied, 120 S. Ct. 1830 (2000); Drinkard v. Johnson, 97 F.3d 751, 766 (5th Cir. 1996), cert. denied, 120 S. Ct. 1107 (1997).

[38] See, e.g., United States v. Villa-Gonzalez, 208 F.3d 1160, 1163 (9th Cir. 2000); Trice v. Ward, 196 F.3d 1151, 1158 (10th Cir. 1999), ptn. for cert. filed, No. 99-9518 (U.S. May 10, 2000); Mancuso v. Herbert, 166 F.3d 97, 101 (2d Cir.), cert. denied, 527 U.S. 1026 (1999); Kilgore v. Bowersox, 181 F.3d 895, ___ (8th Cir. 1999); Vancleave v. Norris, 150 F.3d 926, 927 (8th Cir. 1998); United States v. Avila-Avila, 132 F.3d 1347, 1348 (10th Cir. 1997); Wortazeck v. Stewart, 118 F.3d 648, 650 (9th Cir. 1997); Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997); Ruiz v. Norris, 104 F.3d 163, 164 (8th Cir. 1997), cert. denied, 519 U.S. 1073 (1997); Hatch v. State of Oklahoma, 92 F.3d 1012, 1014 (10th Cir. 1996). See also Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L.Ed.2d 827 (1996) (assuming that Act applies to successor petition filed after date of enactment).

[39] See Alexander v. United States, 121 F.3d 312, 314 (7th Cir. 1997); In re Jones, 137 F.3d 1271, 1272 n.1 (11th Cir.) (per curiam), cert. denied, 523 U.S. 1041 (1998); In re Magwood, 113 F.3d 1544, 1552 (11th Cir. 1997); In re Medina, 109 F.3d 1556, 1561-1562 (11th Cir.), cert. denied, 520 U.S. 1151 (1997); Burris v. Parke, 95 F.3d 465, 468-69 (7th Cir. 1996) (en banc).

[40] Compare United States v. Orozco-Ramirez, 211 F.3d 862, 866 (5th Cir. 2000) (concluding AEDPA=s provisions governing second or successive applications apply to ' 2255 motion filed after April 24, 1996); with Graham v. Johnson, 168 F.3d 762, 783 (5th Cir. 1999), cert. denied, 120 S. Ct. 1830 (2000) (employing detrimental reliance test).

[41] See United States v. Roberson, 194 F.3d 408, ___ (3d Cir. 1999); In re Minarik, 166 F.3d 591, 600-02 (3d Cir. 1999); United States v. Ortiz, 136 F.3d 161, 166 (D.C. Cir. 1998); In re Sonshine, 132 F.3d 1133, 1134 (6th Cir. 1997); In re Hanserd, 123 F.3d 922, 924, 930-31 (6th Cir. 1997). Applying this analysis, the Sixth Circuit allows federal prisoners raising a colorable claim under Bailey v. Unied States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), to file a second ' 2255 motion without fulfilling the requirements for such a motion under the AEDPA if the first ' 2255 motion preceded the effective date of the Act. See Hanserd, 123 F.3d at 934; Napier v. United States, 159 F.3d 956, 959 (6th Cir. 1998).

[42] Compare Rodriguez v. Supt., Bay State Corr. Center, 139 F.3d 270, 272 (1st Cir. 1998) (applying Lindh without discussion of retroactivity); with Pratt v. United States, 129 F.3d 54, 58 (1st Cir. 1997) (requiring showing of detrimental reliance), cert. denied, 523 U.S. 1123 (1998); and with Libby v. Magnusson, 177 F.3d 43, ___ (1st Cir. 1999) (articulating detrimental reliance analysis but requiring showing that petitioner would have been entitled to relief under pre-Act law).

[43] See 28 U.S.C. ' 2253 and Fed. R. App. P. 22(b).

[44] Slack, 120 S. Ct. at 1603.

[45] Id.

[46] Id., 120 S. Ct. at 1602.

[47] See Fed. R. App. P. 22(b)(1); Slack, 120 S. Ct. at 1603.

[48] See United States v. Navin, 172 F.3d 537, 539 (8th Cir. 1999).

[49] See Martin v. Hadix, 527 U.S. 343, 356-57, 119 S. Ct. 1998, 2005, 144 L.Ed.2d 347 (1999).

[50] See id., 527 U.S. at 360, 119 S. Ct. at 2007

[51] Calderon v. United States District Court (Gordon), 107 F.3d 756, 761 n.11 (9th Cir.), cert. denied, 522 U.S. 907 (1997).

[52] See Coss v. Lackawanna County District Attorney, 204 F.3d 453, 461 (3d Cir. 2000) (en banc), ptn. for cert. filed, 68 U.S.L.W. 3749, No. 99-1884 (2000).

[53] Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir.), cert. denied, 120 S. Ct. 397 (1999). See also Keating v. Hood, 191 F.3d 1053, 1060 n.9 (9th Cir. 1999), ptn. for cert. filed, No. 99-2022 (2000); Allen v.United States, 175 F.3d 560, 561-63 (7th Cir.), cert. denied, 120 S. Ct. 4432 (1999); Williams v. Vaughn, 3 F.Supp.2d 567, 580-81 (E.D.Pa. 1998); Kethley v. Berge, 14 F.Supp.2d 1077, ___ (E.D. Wisc. 1998). Cf. Johnson v. Cain, ___ F.3d ___, 2000 WL 791941 (5th Cir. June 19, 2000) (declining to reach issue); Van Tran v. Lindsey, 212 F.3d 1143, ___ n.7 (9th Cir. 2000) (declining to reach issue because not raised by petitioner).

[54] See Chambers v. Johnson, ___ F.3d ___, 2000 WL 791934 (5th Cir. June 20, 2000); Van Tran v. Lindsey, 212 F.3d 1143, ___ n.9 (9th Cir. 2000); Van Woudenberg by and through Foor v. Gibson, 211 F.3d 560, ___ (10th Cir. 2000); Keating v. Hood, 191 F.3d 1053, 1060 n.9 (9th Cir. 1999), ptn. for cert. filed, No. 99-2022 (2000); Hull v. Kyler, 190 F.3d 88 (3d Cir. 1999); Sanchez v. Gilmore, 189 F.3d 619, 622-23 (7th Cir. 1999), cert. denied, 120 S. Ct. 1724 (2000); Taylor v. Lee, 186 F.3d 557, 560 (4th Cir. 1999), cert. denied, 120 S. Ct. 1262 (2000); Graham v. Johnson, 168 F.3d 762, 775-781 (5th Cir. 1999), cert. denied, 120 S. Ct. 1830 (2000); Mancuso v. Herbert, 166 F.3d 97, ___ (2d Cir.), cert. denied, 527 U.S. 1026 (1999); Earhart v. Johnson, 132 F.3d 1062, 1066 n.4 (5th Cir. 1998), cert. denied, 525 U.S. 933 (1998). Cf. Romo v. Oklahoma Dept. of Corr., ___ F.3d___, 2000 WL 781354 (10th Cir. June 19, 2000) (' 2254 petition is not a Acontinuation@ of a pre-AEDPA petition where the prior petition was decided on the merits and the claims raised in the subsequent petition were substantially different from those raised previously).

[55] See, e.g., Hardwick v. Singletary, 126 F.3d 1312, 1313 (11th Cir. 1997) (per curiam) (construing district court=s grant of certificate of appealability in pre-AEDPA case as a grant of a certificate of probable cause); Everett v. Barnett, 162 F.3d 498, 500 (7th Cir. 1998) (noting district court incorrectly applied AEDPA law to resolve case, but concluding: ABecause the AEDPA contains provisions which alter the analysis of habeas petitions brought under 28 U.S.C. ' 2254, Everett contends that we must, therefore, send this case back to the district court for a proper analysis. We disagree. The issues presented in this case and the record as it exists allows us to evaluate Everett's claim.@); Aliwoli v. Gilmore, 127 F.3d 632, 633-34 (7th Cir. 1997) (AThe fact that the district court applied the wrong standard in denying Aliwoli's petition does not in and of itself merit reversal; we can still review the district court's denial of the petition using the standards applicable before the AEDPA took effect to see if the district court's decision was proper.@)

[56] See Cornell v. Nix, 119 F.3d 1329, 1330 n.2 (8th Cir. 1997); Davis v. Executive Dir. of Dept. of Corrections, 100 F.3d 750, 755 n.1 (10th Cir. 1996), cert. denied, 520 U.S. 1215 (1997); Farmer v. McDaniel, 98 F.3d 1548, 1549 n.1 (9th Cir. 1996), cert. denied, 520 U.S. 1188 (1997); Watkins v. Meloy, 95 F.3d 4, 5-6 (7th Cir. 1996); Emerson v. Gramley, 91 F.3d 898, 900 (7th Cir. 1996), cert. denied, 520 U.S. 1122, 1139 (1997).

[57] 28 U.S.C. ' 2254(d)(1).

[58] 28 U.S.C. ' 2255 & 6(1)-(4).

[59] See, e.g., Shands v. Purkett, 211 F.3d 1077, 1078 (8th Cir. 2000) (relying on state=s representation that it would not assert statute of limitations in future habeas corpus proceeding following dismissal without prejudice to allow for exhaustion); Smith v. McGinnis, 208 F.3d 13, ___ (2d Cir. 2000), ptn. for cert. filed, No. 99-9695 (April 17, 2000); Molo v. Johnson, 207 F.3d 773, ___ (5th Cir. 2000); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999); Moore v. United States, 173 F.3d 1131, 1134 (8th Cir. 1999); Kapral v. United States, 166 F.3d 565, 574-75 (3d Cir. 1999); Calderon v. United States District Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998) (en banc), cert. denied, 119 S. Ct. 1377 (1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S. Ct. 1474 (1999); Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 & n.1 (3rd Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891 (1998); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1289 (9th Cir. 1997), cert. denied, 522 U.S. 1099, 523 U.S. 1061 (1998). But see Kiser v. Johnson, 163 F.3d 326, ___ (5th Cir. 1999) (concluding that even though statute of limitations is an affirmative defense rather than jurisdictional, the district court may raise the defense sua sponte).

[60] See Burket v. Angelone, 208 F.3d 172, 177 n.2 (4th Cir. 2000), cert. denied, 120 S. Ct. 2761 (2000); McDowell v. Calderon, 107 F.3d 1351, 1355 n.1, amended in part, 116 F.3d 364, vacated in other part, 130 F.3d 833 (9th Cir. 1997) (en banc), cert. denied, 523 U.S. 1103 (1998); Death Row Prisoners of Pennsylvania v. Ridge, 106 F.3d 35, 36 (3rd Cir. 1997); Farmer v. McDaniel, 98 F.3d 1548, 1549 n.1 (9th Cir. 1996), cert. denied, 520 U.S. 1188 (1997); Burris v. Parke, 95 F.3d 465, 468 (7th Cir. 1996) (en banc); Rahman v. Bell, 927 F. Supp. 262, 266 (M.D. Tenn. 1996).

[61] See Weaver v. Thompson, 197 F.3d 359, ___ n.4 (9th Cir. 1999); Arnold v. Evatt, 113 F.3d 1352, 1362 n.57 (4th Cir. 1997), cert. denied, 522 U.S. 1058 (1998); Belgarde v. State of Montana, 123 F.3d 1210, 1214 n.5 (9th Cir. 1997); Johnson v. Baldwin, 114 F.3d 835, 839 n.2 (9th Cir. 1997) (ADuring the months since the Act was passed . . . the State has made no attempt to urge the application of the new [standard of review] provision, and we consider the issue waived.@); Huynh v. King, 95 F.3d 1052, 1055 n.2 (11th Cir. 1996) (declining to apply new ' 2254(d) standard because neither party urged its application).

[62] 97 F.3d 887, 892 n.1 (7th Cir. 1996).

[63] 97 F.3d 189 (7th Cir. 1996), cert. denied, 520 U.S. 1171 (1997).

[64] Id. at 192 (quoting Lindh v. Murphy, 96 F.3d 856, 865 (7th Cir. 1996), reversed in other part, 521 U.S. 320, 117 S. Ct. 2059, 138 L.Ed.2d 481 (1997)). Followed Archie v. Hobbs, 954 F. Supp. 1149 (W.D. Va. 1997), appeal dismissed, 122 F.3d 1060 (Table) (4th Cir. 1997).

[65] See 28 U.S.C. ' 2244(b)(3)(A) as amended by AEDPA ' 106 (ABefore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.@); 28 U.S.C. ' 2255 as amended by AEDPA '105.

[66] See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000) (A' 2244(b)(3)(A) acts as a jurisdictional bar to the district court=s asserting jurisdiction over any successive habeas petition until this court has granted the petitioner permission to file one.@); United States v. Gallegos, 142 F.3d 1211, 1212 (10th Cir. 1998); Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir. 1998) (vacating district court=s order because Athe district court lacked jurisdiction to decide [petitioner=s] unauthorized second petition@), cert. denied, 525 U.S. 1024, 1117 (1998); United States v. Avila‑Avila, 132 F.3d 1347, 1348‑49 (10th Cir. 1997) (same); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996) (concluding second and successive petition provision Ais an allocation of subject-matter jurisdiction to the court of appeals@); Gentry v. Trippett, 956 F. Supp. 1320 (E.D.Mich. 1997), aff=d, 173 F.3d 855 (Table) (6th Cir.), cert. denied, 526 U.S. 1149 (1999).

[67] See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).

[68] See 28 U.S.C. ' 2253(c) and Federal Rule of Appellate Procedure 22(b), as amended by AEDPA '' 102 & 103.

[69] See Lucidore v. New York State Division of Parole, 209 F.3d 107, ___ (2d Cir. 2000); Gatlin v. Madding, 189 F.3d 882, 886 (9th Cir. 1999), cert. denied, 120 S. Ct. 815 (2000); Morris v. Horn, 187 F.3d 333, 339 (3d Cir. 1999); Trevino v. Johnson, 168 F.3d 173, 177 (5th Cir.), cert denied, 120 S. Ct. 22 (1999); Gerlaugh v. Stewart, 167 F.3d 1222, 1223 (9th Cir. 1999); United States v. Williams, 158 F.3d 736, 741 (3d Cir. 1998); United States v. Orozco, 103 F.3d 389, 390 (5th Cir. 1996).

[70] See Alexander v. Johnson, 211 F.3d 895, ___ (5th Cir. 2000).

[71] See Slack v. McDaniel, ___ U.S. ___, 120 S. Ct. 1595, 1607, 146 L.Ed.2d 542 (2000) (remanding in part for the court of appeals to apply the appropriate COA standard); Franklin v. Hightower, ___ F.3d ___, 2000 WL 780084 (11th Cir. June 19, 2000) (Adefective leave to appeal neither dooms the appeal nor deprives appellate courts of jurisdiction@); United States v. Marcello, 212 F.3d 1005, ___ (7th Cir. 2000) (Awe will exercise our discretion to review the issuance of a [COA] only in rare cases@ because doing so more often would defeat the purpose of the COA requirement, which is to increase judicial efficiency); Coates v. Byrd, 211 F.3d 1225, 1226 n.1 (11th Cir. 2000); Lucidore v. New York State Division of Parole, 209 F.3d 107, 112 (2d Cir. 2000); Romandine v. United States, 206 F.3d 731, 734 (7th Cir. 2000) (Awhen the district court and the parties all disregard ' 2253(c)(2), and the case is fully briefed on [nonconstitutional] questions, we will proceed to decide them and the [government] has forfeited the benefits of ' 2253@); Gatlin v. Madding, 189 F.3d 882, 886-87 (9th Cir. 1999), cert. denied, 120 S. Ct. 815 (2000); Krevsky v. United States, 186 F.3d 237, 239 (2d Cir. 1999); Soto v. United States, 185 F.3d 48, 52 (2d Cir. 1999); Young v. United States, 124 F.3d 794, 799 (7th Cir. 1997), cert. denied, 524 U.S. 928 (1998); Dahler v. United States, 143 F.3d 1084, 1087 (7th Cir. 1998), cert. denied, 119 S. Ct. 844 (1999); United States v. Talk, 158 F.3d 1064, 1068 (10th Cir. 1998), cert. denied, 525 U.S. 1090 (1999).

[72] See Franklin v. Hightower, ___ F.3d ___, 2000 WL 780084 (11th Cir. June 19, 2000). See also Slack, 120 S. Ct. at 1607 (remanding in part to the court of appeals to applying appropriate standard for issuance of COA).

[73] The Suspension Clause provides that A[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.@ U.S. Const., Art. I, ' 9, cl.2.

[74] 518 U.S. 651, 116 S. Ct. 2333, 135 L.Ed.2d 827 (1996).

[75] 518 U.S. at ___, 116 S. Ct. at 2340. Followed Graham v. Johnson, 168 F.3d 762, 787 (5th Cir. 1999) (AEDPA ' 106=s restrictions on second and successive ' 2254 habeas corpus petitions, codified at 28 U.S.C. ' 2244(b), do not violate Suspension Clause), cert. denied, 120 S. Ct. 1830 (2000); United States v. Ortiz, 136 F.3d 161, 168 (D.C. Cir. 1998) (AEDPA ' 105=s restrictions on second and successive ' 2255 motions, codified at 28 U.S.C. ' 2255, do not violate Suspension Clause); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir.) (that portion of AEDPA ' 106, codified at 28 U.S.C. ' 2244(b)(2)(B), which forecloses all successive-petition review of constitutional claims unrelated to guilt or innocence, does not violate Suspension Clause), cert. denied, 519 U.S. 1102 (1997); Bannister v. Bowersox, 128 F.3d 621, 623 (8th Cir. 1997) (blanket ban on same-claim second or successive petitions contained in AEDPA ' 106, codified at 28 U.S.C. ' 2244(b)(1), does not suspend the writ); Denton v. Norris, 104 F.3d 166, 167 (8th Cir. 1997) (same).

[76] 118 F.3d 628 (9th Cir. 1997), affirmed sub nom. Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S. Ct. 1618, 140 L.Ed.2d 849 (1998).

[77] Id. at 632.

[78] Id.

[79] Id.

[80] Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S. Ct. 1618, 140 L.Ed.2d 849 (1998).

[81] See, e.g., In re Page, 170 F.3d 1024, 1026 (7th Cir. 1999) (dicta) (stating A[t]here remains the possibility that a claim in no sense abusive, because it could not have been raised earlier, yet not within the dispensation that section 2244(b)(2) grants for filing of some second or successive petitions, would have sufficient merit that the barring of it would raise an issue under the clause of the Constitution that forbids suspending federal habeas corpus other than in times of rebellion or invasion,@ but declining to reach issue where claim raised here is frivolous), cert. denied, 120 S. Ct. 1177 (2000).

[82] Stewart, 523 U.S. at 643, 118 S. Ct. at 1621.

[83] See In re Davis, 121 F.3d 952, 956 (5th Cir. 1997); In re Medina, 109 F.3d 1556, 1564-1565 (11th Cir.), cert. denied, 520 U.S. 1151 (1997).

[84] See Nguyen v. Gibson, 162 F.3d 600, ___ (10th Cir. 1998).

[85] See In re Vial, 115 F.3d 1192, 1197-1198 (4th Cir. 1997) (en banc); Graham v. Johnson, 168 F.3d 762, 787 (5th Cir. 1999), cert. denied, 120 S. Ct. 1830 (2000).

[86] 124 F.3d 361 (2d Cir. 1997).

[87] 516 U.S. 137, 116 S. Ct. 501, 133 L.Ed.2d 472 (1995).

[88] Triestman v. United States, 124 F.3d 361, 378 n.21 (2d Cir. 1997).

[89] In re Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997).

[90] See United States v. Barrett, 178 F.3d 34, ___ (1st Cir. 1999), cert. denied, 120 S. Ct. 1208 (2000).

[91] See 28 U.S.C. '' 2244(d)(1) & 2255 & 6(1)-(4).

[92] See Hyatt v. United States, 207 F.3d 831, 832 (6th Cir. 2000); Lucidore v. New York State Division of Parole, 209 F.3d 107, 113 (2d Cir. 2000) (citing Rodriguez v. Artuz, 161 F.3d 763, 764 (2d Cir. 1998) (per curiam), aff=g on opinion below, 990 F. Supp. 275 (S.D. N.Y. 1998)), ptn. for cert. filed, No. 00-40 (U.S. July 5, 2000); United States v. Lurie, 207 F.3d 1075, 1078 (2000); Weaver v. United States, 195 F.3d 123, 125 (2d Cir. 1999), cert. denied, 120 S. Ct. 1733 (2000); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 120 S. Ct. 504 (1999); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891 (1998); Bilodeau v. Angelone, 39 F.Supp.2d 652, ___ (E.D. Va. 1999), appeal dismissed, 182 F.3d 906 (4th Cir. 1999) (Table).

[93] 513 U.S. 298, 329, 115 S. Ct. 851, 868, 130 L.Ed.2d 808 (1995).

[94] See Cooper v. United States, 199 F.3d 898, 901 (7th Cir. 1999) (AA valid claim of actual innocence would be enforceable . . . without regard to the time limits under ' 2255 if relief under that section was not, for some reason, available.@), cert. denied, 120 S. Ct. 2760 (2000); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891 (1998); United States v. Zuno-Arce, 25 F.Supp.2d 1087, 1099-1102 (C.D. Cal. 1998), aff=d, 209 F.3d 1095 (2000); Thomas v. Straub, 10 F.Supp.2d 834, 836 (E.D. Mich. 1998); Rashid v. Kuhlmann, 991 F.Supp. 254, 260 n.3 (S.D.N.Y. 1998); Rodriguez v. Artuz, 990 F. Supp. 275, 282 (S.D.N.Y.), affirmed, 161 F.3d 763 (2d Cir. 1998). See also Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (not expressly discussing question but Aagree[ing] with the reasoning of the Tenth Circuit in Miller [v. Marr].@), cert. denied, 120 S. Ct. 504 (1999). Cf. Lucidore v. New York State Division of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (raising but declining to reach question after determining petitioner did not demonstrate actual innocence), ptn. for cert. filed, No. 00-40 (U.S. July 5, 2000); United States v. Lurie, 207 F.3d 1075, 1077 n.4 (2000) (same).

[95] See Fisher v. Lee, ___ F.3d ___, 2000 WL 779055 (4th Cir. June 19, 2000); Mueller v. Angelone, 181 F.3d 557, ___ (4th Cir.), cert. denied, 120 S. Ct. 37 (1999); Houston v. Roe, 177 F.3d 901, ___ (9th Cir. 1999), cert. denied, 120 S. Ct. 1168 (2000); Corwin v. Johnson, 150 F.3d 467, 471-72 (5th Cir.), cert. denied, 525 U.S. 1049 (1998); Green v. French, 143 F.3d 865, 875-76 (4th Cir. 1998), cert. denied, 525 U.S. 1090 (1999); Lindh v. Murphy, 96 F.3d 856, 867-868 (7th Cir. 1996) (en banc), reversed in other part, 521 U.S. 320 (1997).

[96] See 28 U.S.C. ' 2244(b)(3)(E).

[97] Felker, 518 U.S. at ___, 116 S. Ct. at 2339.

[98] ___ U.S. ___, 120 S. Ct. 1495, 1522, 146 L.Ed.2d 389 (2000) (opinion of O=Connor, J.) (quoting Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992)).

[99] See Weeks v. Angelone, ___ U.S. ___, 120 S. Ct. 727, 729, 145 L.Ed.2d 727 (2000) (addressing first whether the issue before it was meritorious and then, upon determining that there was no constitutional violation, concluding that the AEDPA barred relief, rather than asking initially whether the state court decision was Acontrary to, or an unreasonable application of clearly established Federal law@ ); Ramdass v. Angelone, ___ U.S. ___, 120 S. Ct. 2113, ___ L.Ed.2d ___ (2000) (same); Clark v. Stinson, ___ F.3d ___, 2000 WL 710044 (2d Cir. June 1, 2000); Foster v. Schomig, ___ F.3d ___, 2000 WL 703803 (7th Cir. May 31, 2000).

[100] See (Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct. 1495, 1512, 146 L.Ed.2d 389 (2000) (after first independently determining that the Sixth Amendment had been violated by counsel=s deficient and prejudicial performance, determining whether Court could provide a remedy under ' 2254(d)(1), and concluding that habeas provided a remedy because the state court=s adjudication offended both prongs of ' 2254(d)(1)); id., 120 S. Ct. at 1505 (Stevens, J., concurring) (noting such a rule respects the duty of Article III judges to say Awhat the law is.@) (citing Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803)); Tucker v. Catoe, ___ F.3d ___, 2000 WL 763597 (4th Cir. June 13, 2000); Van Tran v. Lindsey, 212 F.3d 1143, ___ (9th Cir. 2000).

[101] This includes cases such as Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); Hughes v. Johnson, 191 F.3d 607, 612 (5th Cir. 1999), cert. denied, 120 S. Ct. 1103 (2000); Corwin v. Johnson, 150 F.3d 467, 472 (5th Cir.), cert. denied, 525 U.S. 1049 (1998); Green v. French, 143 F.3d 865, 874-75 (4th Cir. 1998), cert. denied, 525 U.S. 1090 (1999); Lindh v. Murphy, 96 F.3d 856, 871-874 (7th Cir. 1996) (en banc), reversed in other part, 521 U.S. 320 (1997); Rodriguez v, Zavares, 42 F.Supp.2d 1059, ___ (D. Colo. 1999).

[102] In re Siggers, 132 F.3d 333, 336 (6th Cir. 1997).

[103] Lindh v. Murphy, 96 F.3d at 874. Accord Perez v. Marshall, 946 F. Supp. 1521, 1521 (S.D. Cal. 1997), aff=d on other grounds, 121 F.3d 716 (9th Cir. 1997).

[104] In re Siggers, 132 F.3d 333, 335-36 (6th Cir. 1997).

[105] Graham v. Johnson, 168 F.3d 762, ___ (5th Cir. 1999), cert. denied, 120 S. Ct. 1830 (2000).

[106] After Bailey was decided, a number of courts held that under ' 2255 &8, a ' 2255 movant could not obtain relief on a Bailey claim raised in a second or successive motion because Bailey announced only a new statutory interpretation, not a new rule of constitutional law, and/or the Bailey decision had not yet been made retroactive to cases on collateral review by the Supreme Court. See In re Dorsainvil, 119 F.3d 245, 247 (3rd Cir. 1997); In re Vial, 115 F.3d 1192, 1195 (4th Cir. 1997) (en banc); Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997) (per curiam); United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir. 1997); In re Blackshire, 98 F.3d 1293, 1294 (11th Cir. 1996) (per curiam); Nunez v. United States, 96 F.3d 990, 992 (7th Cir. 1996). The Supreme Court=s decision in Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L.Ed.2d 828 (1998), resolved many of these questions.

[107] See United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir. 1997).

[108] See Triestman v. United States, 124 F.3d 361, 378-79 (2d Cir. 1997) (Awe find that serious Eighth Amendment and due process questions would arise with respect to the AEDPA if we were to conclude that, by amending ' 2255, Congress had denied [the applicant] the right to collateral review in this case@); United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir. 1997); In re Dorsainvil, 119 F.3d 245, ___ (3rd Cir. 1997).

[109] See Neelley v. Nagle, 138 F.3d 917, 921 (11th Cir. 1998), cert. denied, 525 U.S. 1075 (1999).

[110] See Libby v. Magnusson, 177 F.3d 43, 46 (1st Cir. 1999) (second or successive application provisions); United States v. Ortiz, 136 F.3d 161, 168-69 (D.C. Cir. 1998) (same); Hatch v. State of Oklahoma, 92 F.3d 1012, 1014 (10th Cir. 1996) (same); Wilson v. United States, 969 F. Supp. 1054, 1058 (E.D.Mich. 1997) (same); Hyatt v. United States, 207 F.3d 831, 832 (6th Cir. 2000) (statute of limitations provisions); Griffin v. Endicott, 932 F. Supp. 231, 232 (E.D.Wisc. 1996) (same).

[111] See Graham v. Johnson, 168 F.3d 762, 787-88 (5th Cir. 1999), cert. denied, 120 S. Ct. 1830 (2000).

[112] See Triestman v. United States, 124 F.3d 361, 378-79 (2d Cir. 1997); United States v. Zuno-Arce, 25 F. Supp.2d 1087, 1100 (C.D. Cal. 1998), aff=d, 209 F.3d 1095 (2000).

[113] United States v. Smith, 331 U.S. 469, 475 (1947).

[114] 28 U.S.C. ' 2255 (1994).

[115] See Rule 9(a), Rules Governing ' 2254 Cases, 28 U.S.C. foll. ' 2254, and Rule 9(a), Rules Governing ' 2255 Proceedings, 28 U.S.C. foll. ' 2255; Lonchar v. Thomas, 517 U.S. 314 (1996).

[116] Note that the date of the Afiled@ stamp on the petition or motion may not be decisive; if the petition or motion was received by the court earlier than the filed stamp date, it is the date received that controls. See United States v. Nguyen, 997 F. Supp. 1281, 1288 (C.D. Cal. 1998).

[117] See Brown v. Angelone, 150 F.3d 370, 375 (4th Cir. 1998). Cf. Gosier v. Welborn, 175 F.3d 504, 506 (7th Cir.) (concluding date of filing petition, rather than date of McFarland request, is critical date for determining applicability of AEDPA), cert. denied, 120 S. Ct. 502 (1999); accord Moore v. Gibson, 195 F.3d 1152, 1160-1163 (10th Cir. 1999), cert. denied, 120 S. Ct. 2206 (2000); Hooks v. Ward, 184 F.3d 1206, 1213 (10th Cir. 1999); Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999), cert. denied, 120 S. Ct. 944 (2000); Williams v. Coyle, 167 F.3d 1036, 1038-40 (6th Cir. 1999); Nobles v. Johnson, 127 F.3d 409, 414-415 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998); Holman v. Gilmore, 126 F.3d 876, 879-880 (7th Cir. 1997), cert. denied, 522 U.S. 1150 (1998); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997), cert. denied, 525 U.S. 859 (1998).

[118] See, e.g., United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000); Jones v. Morton, 195 F.3d 153, 157-58 (3d Cir. 1999); Towns v. United States, 190 F.3d 468, ___ (6th Cir. 1999); Morales-Rivera v. United States, 184 F.3d 109, 110 (1st Cir. 1999) (per curiam); United States v. Gray, 182 F.3d 762, ___ (10th Cir. 1999); Ford v. Bowersox, 178 F.3d 522, ___ (8th Cir. 1999); Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999); Moore v. United States, 173 F.3d 1131, 1135 (8th Cir. 1999); Nichols v. Bowersox, 172 F.3d 1068, ___ (8th Cir. 1999) (en banc); Jones v. Bertrand, 171 F.3d 499, 501-02 (7th Cir. 1999); Hoggro v. Boone, 150 F.3d 1223, ___ (10th Cir. 1998); Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998); Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997); United States v. Hatala, 29 F.Supp.2d 728, 731 (N.D. W. Va. 1998); United States v. Dorsey, 988 F.Supp. 917 (D. Md. 1998). Cf. Miles v. Prunty, 187 F.3d 1104, 1106 n.2 (9th Cir. 1999) (dicta).

[119] Jones v. Bertrand, 171 F.3d 499, 503-04 (7th Cir. 1999). See Ford v. Bowersox, 178 F.3d 522, ___ (8th Cir. 1999); See also United States ex rel. Drain v. Washington, 52 F.Supp.2d 856, 859-60 (N.D. Ill. 1999) (holding that a ' 2254 petition is Afiled@ for purposes of AEDPA when given to prison authorities even if the petition is accompanied by a bad faith in forma paurperis motion).

[120] See Phillips v. Seiter, 173 F.3d 609, ___ (7th Cir. 1999) (AA compelling reason for transfer is that the plaintiff, whose case if transferred is for statute of limitations purposes deemed by [28 U.S.C. '] 1631 to have been filed in the transferor court, will be time-barred if his case is dismissed and this has to be filed anew in the right court.@) (internal citation omitted).

[121] See Towns v. United States, 190 F.3d 468, 469-70 (6th Cir. 1999); United States v. Aguilar, 90 F.Supp.2d 1152, 1160 (D. Colo. 2000).

[122] See Romo v. Oklahoma Dept. of Corrections, ___ F.3d ___, 2000 WL 781354 (10th Cir. June 19, 2000); United States v. Marcello, 212 F.3d 1005, ___ (7th Cir. 2000); Habteselassie v. Novak, 209 F.3d 1208, 1209 (10th Cir. 2000); Harris v. Hutchinson, 209 F.3d 325, 328 & n.1 (4th Cir. 2000); Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999); Morris v. Horn, 187 F.3d 333, 337 n.1 (3d Cir. 1999); Rhine v. Boone, 182 F.3d 1153, 1156 (10th Cir. 1999), cert. denied, 120 S. Ct. 808 (2000); Nichols v. Bowersox, 172 F.3d 1068, 1072 (8th Cir. 1999) (en banc); Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999); Smith v. Bowersox, 159 F.3d 345, ___ (8th Cir. 1998), cert. denied, 525 U.S. 1187 (1999); Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998); United States v. Simmonds, 111 F.3d 737, 744 (10th Cir. 1997).

[123] See United States v. Marcello, 212 F.3d 1005, ___ (7th Cir. 2000).

[124] See United States v. Willis, 202 F.3d 1279, 1281 n.2 (10th Cir. 2000).

[125] See, e.g., Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998).

[126] United States v. Marcello, 212 F.3d 1005, ___ (7th Cir. 2000).

[127] See Patterson v. Director, Virginia Dept. of Corrections, 36 F. Supp.2d 317, 319 (E.D. Va.), appeal dismissed, 187 F.3d 630 (4th Cir. 1999) (Table); Eisermann v. Penarosa, 33 F. Supp.2d 1269, ___ (D. Hawaii 1999). Note that failure to file a discretionary appeal in the state=s highest court may render any direct appeal claims unexhausted. See O=Sullivan v. Boerckel, 526 U.S. 838, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999).

[128] See Hepburn v. Moore, ___ F.3d ___, 2000 WL 780086 (11th Cir. June 19, 2000); Rowsey v. Gudmanson, 56 F.Supp.2d 1059, 1061 (E.D. Wisc. 1999).

[129] See Burris v. Parke, 95 F.3d 465, 467-468 (7th Cir. 1996) (en banc) (concluding that capital petitioner who received a penalty-only reversal on direct review, he need file only one federal petition, after the conclusion of direct review following his resentencing).

[130] See '' 2244(d)(1)(B), 2255 & 6(2). Note that ' 2244(d)(1)(B) speaks of AState@ action which ' 2255 & 6(2) speaks of Agovernmental@ action.

[131] 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963).

[132] See Edmond v. United States Attorney, 959 F. Supp. 1, 4 (D.C. D.C. 1997).

[133] 518 U.S. 343, 116 S. Ct. 2174, 135 L.Ed.2d 606 (1996).

[134] See Akins v. United States, 204 F.3d 1086, 1090 (11th Cir. 2000); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891 (1998); Hullum v. Maloney, 14 F.Supp.2d 164, 166-67 (D.Mass. 1998), aff=d on other grounds, 201 F.3d 427 (1st Cir. 1999) (Table), cert. denied, 120 S. Ct. 1193 (2000).

[135] See Romo v. Oklahoma Dept. of Corr., ___ F.3d ___, 2000 WL 781354 (10th Cir. June 19, 2000); Felder v. Johnson, 204 F.3d 168, 171 n.9 (5th Cir. 2000), ptn. for cert. filed, No. 99-10243 (U.S. May 8, 2000).

[136] See also ' XIV, infra.

[137] See '' 2244(d)(1)(C) & 2255 & 6(3). Note that for purposes of determining the start of the one year limitations period in ' 2255 cases, Athe Supreme Court=s recognition of a statutory right, as opposed to a constitutional right as expressly required by ' 2244(d)(1)(c),@ will suffice under ' 2255(3). United States v. Valdez, 195 F.3d 544, 548 (9th Cir. 1999).

[138] See Haugh v. Booker, 210 F.3d 1147, ___ (10th Cir. 2000) (noting split).

[139] See Triestman v. United States, 124 F.3d 361, 371 & n.13 (2d Cir. 1997).

[140] See United States v. Valdez, 195 F.3d 544, 548 (9th Cir. 1999); In re Vial, 115 F.3d 1192, 1197 n.9 (4th Cir. 1997). Cf. Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000).

[141] See United States v. Lloyd, 188 F.3d 184, 187-88 (3d Cir. 1999).

[142] See United States v. Valdez, 195 F.3d 544, 548 (9th Cir. 1999); In re Vial, 115 F.3d 1192, 1197 n.9 (4th Cir. 1997).

[143] See Libby v. Magnusson, 177 F.3d 43, 47-48 (1st Cir. 1999); In re Vial, 115 F.3d 1192, 1197 n.9 (4th Cir. 1997) (Aa claim based upon a new rule of law implicates clause (3) of [' 2255's] limitations provision@). A court may consider a second or successive application for ' 2254 habeas relief if it Arelies on a new rule of constitutional law, made retroactively applicable to cases on collateral review by the Supreme Court, that was previously unavailable,@ 28 U.S.C. '' 2244(b)(2)(A). Similarly, a ' 2255 movant may prevail on a second or successive motion if it relies on Aa new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.@ 28 U.S.C. ' 2255 & 8.

[144] See also ' XIII, infra.

[145] '' 2244(d)(1)(D), 2255 & 6(4). These provisions contain identical language. See also United States v. Zuno-Arce, 209 F.3d 1095, ___ (9th Cir. 2000); Ybanez v. Johnson, 204 F.3d 645, 646 (5th Cir. 2000) (holding ' 2244(d)(1)(D) applies Awhen the facts on which a federal habeas claim is based would have not been discovered by a duly diligent petitioner@), ptn. for cert. filed, No. 00-5012 (U.S. June 29, 2000); Sorce v. Artuz, 73 F. Supp. 292, 298 (E.D. N.Y. 1999); Balagula v. United States, 73 F.Supp.2d 287, 288 (E.D. N.Y. 1999); Raynor v. Dufrain, 28 F.Supp.2d 896, 899 (S.D.N.Y. 1998). Cf. Lewis v. United States, 985 F. Supp. 654, 656 (S.D. W.Va. 1997) (holding, in the alternative, that where the government failed to reveal exculpatory information, the limitations period did not begin to run under ' 2255(4) until the date on which the movant learned of the exculpatory information).

[146] Sorce v. Artuz, 73 F. Supp. 292, 294 (E.D. N.Y. 1999).

[147] Fraser v. United States, 47 F.Supp.2d 629, 630 (D. Md.), appeal dismissed, 188 F.3d 504 (4th Cir. 1999) (Table).

[148] Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir.1998)

[149] United States v. Zuno-Arce, 209 F.3d 1095, ___ (9th Cir. 2000).

[150] See Cooper v. United States, 199 F.3d 898, 900 (7th Cir. 1999) (concluding ' 2255(4) does not apply where the purported Anew evidence@ was known to movant at the time of trial), cert. denied, 120 S. Ct. 2760 (2000); Fama v. Commissioner of Correctional Services, 69 F.Supp.2d 388, 394 (E.D. N.Y. 1999) (concluding ' 2244(d)(1)(D) not applicable where allegations known to petitioner at time of trial and state postconviction proceedings).

[151] See Easterwood v. Champion, 213 F.3d 1321, ___ (10th Cir. 2000).

[152] See Ybanez v. Johnson, 204 F.3d 645, 646 (5th Cir. 2000), ptn. for cert. filed, No. 00-5012 (U.S. June 29, 2000).

[153] See Libby v. Magnusson, 177 F.3d 43, 47-48 (1st Cir. 1999). A court may consider a second or successive application for habeas relief if it relies newly discovered evidence that demonstrates clearly and convincingly that no reasonable factfinder would have convicted petitioner, 28 U.S.C. '' 2244(b)(2)(B). Similarly, a ' 2255 movant may prevail on a second or successive motion if it contains Anewly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense.@ 28 U.S.C. ' 2255 & 8.

[154] 28 U.S.C. ' 2255 & 6(1).

[155] See United States v. Thomas, 203 F.3d 350, 355 (5th Cir. 2000); Rhine v. Boone, 182 F.3d 1153, 1155-56 (10th Cir. 1999), cert. denied, 120 S. Ct. 808 (2000); Rogers v. United States, 180 F.3d 349, 352, 353 (1st Cir. 1999), cert. denied, 120 S. Ct. 958 (2000); Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999); United States v. Simmonds, 111 F.3d 737, 744 (10th Cir. 1997); United States v. Hatala, 29 F.Supp.2d 728, 729 (N.D. W. Va. 1998); Harris v. United States, 9 F.Supp.2d 246, ___ (S.D. N.Y. 1998), aff=d, ___ F.3d ___, 2000 WL 730375 (2d Cir. June 2, 2000) (Table); Baskin v. United States, 998 F. Supp. 188, 189 (D. Conn. 1998); United States v. Dorsey, 988 F. Supp. 917, 918 (D. Md. 1998).

[156] See United States v. Marcello, 212 F.3d 1005, ___ (7th Cir. 2000).

[157] See Horton v. United States, ___ F.3d ___, 2000 WL 862844 (7th Cir. June 29, 2000); United States v. Thomas, 203 F.3d 350, 355 (5th Cir. 2000); United States v. Willis, 202 F.3d 1279, 1281 (10th Cir. 2000).

[158] See, e.g., Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998).

[159] United States v. Marcello, 212 F.3d 1005, ___ (7th Cir. 2000).

[160] Compare United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir. 2000) (holding judgment becomes final upon expiration of time to file certiorari petition); and United States v. Gamble, 208 F.3d 536, ___ (5th Cir. 2000) (same); and Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999) (same); and United States v. Willis, 202 F.3d 1279, 1280-81 (10th Cir. 2000) (same); and United States v. Burch, 202 F.3d 1274, 1276, 1279 (10th Cir. 2000) (same); with Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998), cert. denied, 119 S. Ct. 1758 (1999) (holding judgment becomes final when mandate issues from court of appeals); and United States v. Torres, 211 F.3d 836, 839 (4th Cir. 2000).

[161] See Akins v. United States, 204 F.3d 1086, 1089 n.1 (11th Cir. 2000); Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999); Bryant v. United States, 48 F.Supp.2d 188, 190 (N.D.N.Y. 1999).

[162] See Akins v. United States, 204 F.3d 1086, 1089 n.1 (11th Cir. 2000) (concluding Ajudgment of conviction@ became Afinal@ under ' 2255(1) when Athe opportunity for direct appeal of the judgment of conviction has been exhausted,@ not upon conclusion of movant=s appeal challenging his sentence); Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999); Bryant v. United States, 48 F.Supp.2d 188, 190 (N.D. N.Y. 1999).

[163] See United States v. Colvin, 204 F.3d 1221, 1225 (9th Cir. 2000).

[164] 521 U.S. 320, 117 S. Ct. 2059, 138 L.Ed.2d 481 (1997).

[165] ___ U.S. ___, 120 S. Ct. 1595, 146 L.Ed.2d 542 (2000).

[166] See, e.g., Nyland v. Moore, ___ F.3d ___, 2000 WL 873315 (11th Cir. June 30, 2000); United States v. Cicero, ___ F.3d ___, 2000 WL 725733 (D.C. Cir. June 16, 2000); Romo v. Oklahoma Dept. of Corr., ___ F.3d ___, 2000 WL 781354 (10th Cir. June 19, 2000); Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000); Hyatt v. United States, 207 F.3d 831 (6th Cir. 2000); Swartz v. Myers, 204 F.3d 417, 420 (3d Cir. 2000); Owens v. Dormire, 198 F.3d 679, 681 n.2 (8th Cir. 1999), ptn. for cert. filed, No. 99-9190 (U.S. April 17, 2000); Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999); Morris v. Horn, 187 F.3d 333, 337 (3d Cir. 1999); Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999); Rogers v. United States, 180 F.3d 349, 355 (1st Cir. 1999), cert. denied, 120 S. Ct. 958 (2000); Nichols v. Bowersox, 172 F.3d 1068, 1073 (8th Cir. 1999) (en banc); Ford v. Bowersox, 178 F.3d 522, 523 (8th Cir. 1999); United States v. Jones, 172 F.3d 381, 383 (5th Cir. 1999); United States v. Duffus, 174 F.3d 333, 335 (3d Cir.), cert. denied, 120 S. Ct. 163 (1999); Moore v. United States, 173 F.3d 1131, 1133-35 (8th Cir. 1999); Flanagan v. Johnson, 154 F.3d 196, 199-202 (5th Cir. 1998); Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir. 1998) (per curiam); Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998); Brown v. Angelone, 150 F.3d 370, 374 (4th Cir. 1998); Mickens v. United States, 148 F.3d 145, 146 (2d Cir. 1998); United States v. Flores, 135 F.3d 1000, 1002-1006 (5th Cir. 1998), cert. denied, 525 U.S. 1091 (1999); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1286-87 (9th Cir. 1997) (hereafter ABeeler@), cert. denied, 522 U.S. 1099, 523 U.S. 1061 (1998); United States v. Simmonds, 111 F.3d 737, 744-46 (10th Cir. 1997); Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc), reversed in other part, 521 U.S. 320 (1997).

[167] See United States v. Pittman, 209 F.3d 314, 316 (4th Cir. 2000); Freeman v. Page, 208 F.3d 572, 573 (7th Cir. 2000); Akins v. Unted States, 204 F.3d 1086, 1089 (11th Cir. 2000); Webster v. Moore, 199 F.3d 1256, 1257 n.3 (11th Cir. 2000), ptn. for cert. filed, No. 99-8819 (U.S. March 20, 2000); Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999); Dictado v. Ducharme, 189 F.3d 889, ___ (9th Cir. 1999); Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999); Taylor v. Lee, 186 F.3d 557, 560 (4th Cir. 1999), cert. denied, 120 S. Ct. 1262 (2000); Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999), cert. denied, 120 S. Ct. 808 (2000); United States v. Duffus, 174 F.3d 333, 335 (3d Cir.), cert. denied, 120 S. Ct. 163 (1999); Wilcox v. Florida Dept. of Corr., 158 F.3d 1209, 1211 n.4 (11th Cir. 1998); Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir. 1998) (per curiam); Brown v. Angelone, 150 F.3d 370, 375-76 (4th Cir. 1998); Miller v. New Jersey State Dept. of Corr., 145 F.3d 616, ___ (3d Cir. 1998); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099, 523 U.S. 1061 (1998); United States v. Simmonds, 111 F.3d 737, 744-46 (10th Cir. 1997); and Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc), reversed in other part, 521 U.S. 320 (1997).

[168] See Dilworth v. Johnson, ___ F.3d ___, 2000 WL 791943 (5th Cir. June 19, 2000); Romo v. Oklahoma Dept. of Corr., ___ F.3d ___, 2000 WL 781354 (10th Cir. June 19, 2000); Smith v. Ward, 209 F.3d 383, 384 (5th Cir. 2000); Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000), ptn. for cert. filed, No. 99-9695 (U.S. April 17, 2000); Adeline v. Stinson, 206 F.3d 249, 251 (2d Cir. 2000); Ybanez v. Johnson, 204 F.3d 645, 646 (5th Cir. 2000), ptn. for cert. filed, No. 00-5012 (U.S. June 29, 2000); Hyatt v. United States, 207 F.3d 831, 833 (6th Cir. 2000); Peterson v. Gammon, 200 F. 3d 1202, ___ (8th Cir. 2000); Bennett v. Artuz, 199 F.3d 116, 118 (2d Cir. 1999), cert. granted, 120 S. Ct. 1669 (2000); Rogers v. United States, 180 F.3d 349, 355 (1st Cir. 1999), cert. denied, 120 S. Ct. 958 (2000); Ford v. Bowersox, 178 F.3d 522, 523 (8th Cir. 1999); United States v. Jones, 172 F.3d 381, 383 (5th Cir. 1999); Henderson-El v. Maschner, 180 F.3d 984, ___ (8th Cir. 1999); Moore v. United States, 173 F.3d 1131, 1133-1135 (8th Cir. 1999); Flanagan v. Johnson, 154 F.3d 196, 199-202 (5th Cir. 1998); Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998); Mickens v. United States, 148 F.3d 145, 146 (2d Cir. 1998).

[169] See Dilworth v. Johnson, ___ F.3d ___, 2000 WL 791943 (5th Cir. June 19, 2000); Smith v. Ward, 209 F.3d 383, 384 (5th Cir. 2000); Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000), ptn. for cert. filed, No. 99-9695 (U.S. April 17, 2000); Adeline v. Stinson, 206 F.3d 249, 251 (2d Cir. 2000); Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999), cert. granted, 120 S. Ct. 1669 (2000); Mills v. Norris, 187 F.3d 881, 882-84 (8th Cir. 1999); Morris v. Horn, 187 F.3d 333, 337 (3d Cir. 1999); Gaskins v. Duval, 183 F.3d 8, 9-10 (1st Cir. 1999); Haney v. Addison, 175 F.3d 1217, ___ (10th Cir. 1999); Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir. 1999), cert. denied, 120 S. Ct. 811 (2000); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998); Gendron v. United States, 154 F.3d 672, 675 & n.3 (7th Cir. 1998), cert. denied, 119 S. Ct. 1758 (1999); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998); Lovasz v. Vaughn, 134 F.3d 146, 148-49 (3d Cir. 1998).

[170] See ' V.E., infra.

[171] See Villegas v. Johnson, 184 F.3d 467, 470 (5th Cir. 1999); Hughes v. Irvin, 967 F. Supp. 775, 778 (E.D.N.Y. 1997).

[172] See Williams v. Cain, ___ F.3d ___, 2000 WL 867839 n.4 (5th Cir. June 29, 2000); Habteselassie v. Novak, 209 F.3d 1208, 1210-11(10th Cir. 2000); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000), ptn. for cert. filed, No. 99-8819 (U.S. March 20, 2000); Bennett v. Artuz, 199 F.3d 116, 121-23 (2d Cir. 1999), cert. granted, 120 S. Ct. 1669 (2000); Dictado v. Ducharme, 189 F.3d 889, 892 (9th Cir. 1999); Villegas v. Johnson, 184 F.3d 467, 470-72 (5th Cir. 1999); Tinker v. Hanks, 172 F.3d 990, 991 (7th Cir. 1998), ptn. for cert filed, No. 99-7682 (U.S. Dec. 27, 1999); Hoggro v. Boone, 150 F.3d 1223, ___ (10th Cir. 1998); Lovasz v. Vaughn, 134 F.3d 146, 148-149 (3d Cir. 1998); Patterson v. Director, 36 F.Supp.2d 317 (E.D. Va.), appeal dismissed, 187 F.3d 630 (4th Cir. 1999) (Table). See also Adeline v. Stinson, 206 F.3d 249, 252 (2d Cir. 2000) (concluding application to state appellate court for Acertificate granting renewal of direct appeal@ was not Aproperly filed@ under ' 2244(d)(2) where nothing in state law appeared to permit the type of application filed by petitioner; defendants may not Acreate their own methods of seeking post-conviction relief by availing themselves of a state court=s general motion practice@); Young v. Head, 89 F.Supp.2d 1370, __ (N.D. Ga. 2000) (concluding pendency of petitioner=s application for sentence review did not toll the limitations period under ' 2244(d)(2); A[a]n application for sentence review in Georgia does not serve as the substitute for an appeal, habeas corpus proceeding, or extraordinary motion for a new trial, and cannot serve as the forum to exhaust state court remedies for purposes of federal habeas corpus review@).

[173] Compare Dilworth v. Johnson, ___ F.3d ___, 2000 WL 791943 (5th Cir. June 19, 2000) (concluding that where state application was Aaccorded some level of judicial review@ by the state courts it is Aproperly filed@ under ' 2244(d)(2)); Smith v. Ward, 209 F.3d 383, ___ (5th Cir. 2000) (holding state postconviction application denied by state court as untimely was Aproperly filed@ under ' 2244(d)(2) where state=s timeliness rule does not impose absolute bar to filing, but instead limits the state court=s ability to grant relief); and Bennett v. Artuz, 199 F.3d 116, 121-23 (2d Cir. 1999) (holding irrelevant to Aproperly filed@ analysis whether pending state postconviction application would be barred under state law; to qualify for tolling purposes under ' 2244(d)(2), Aan application for state post-conviction relief recognized as such under governing state procedures [must] ha[ve] been filed@ by the petitioner), cert. granted, 120 S. Ct. 1669 (2000); and Mills v. Norris, 187 F.3d 881, 883-84 (8th Cir. 1999) (where petitioner timely filed notice of appeal, concluding state postconviction petition remained Aproperly filed@ during the 90 days petitioner had to perfect his appeal under state law, despite his failure to do so); and Villegas v. Johnson, 184 F.3d 467, 470-72 (5th Cir. 1999) (ABy 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.@); and Lovasz v. Vaughn, 134 F.3d 146, 148-149 (3d Cir. 1998); and Habteselassie v. Novak, 209 F.3d 1208, 1212 (10th Cir. 2000); and United States ex rel. Noel v. Clark, 74 F.Supp.2d 800, ___ (N.D. Ill. 1999) (concluding that request to file late petition for discretionary review tolled limitations period until state supreme court denied request, where such motion allowed under state law); with Williams v. Cain, ___ F.3d ___, 2000 WL 867839 n.4 (5th Cir. June 29, 2000); (an Aapplication is not >properly filed= if it fails to meet a filing deadline clearly established in state law@); and Nyland v. Moore, ___ F.3d ___, 2000 WL 873315 (11th Cir. June 30, 2000) (noting state postconviction motion is not Aproperly filed@ under ' 2244(d)(2) if the state court denied it as untimely or successive); and Jefferson v. Welborn, ___ F.3d ___, 2000 WL 862846 (7th Cir. June 29, 2000) (concluding the state court is Athe master of its own procedural rules@); and Freeman v. Page, 208 F.3d 572, 576 (7th Cir. 2000) (refusing to adopt an interpretation of Aproperly filed@ that would include state applications that have a colorable argument of compliance with state procedural rules and concluding that federal courts determine whether a state collateral attack is Aproperly filed@ by looking at how it was treated by the state courts: AIf they considered it on the merits, it was properly filed; if they dismissed it for procedural reasons such as untimeliness, it was not properly filed.@); and Weekley v. Moore, 204 F.3d 1083, 1086 (11th Cir. 2000) (concluding state postconviction petitions denied by the state court as successive were not Aproperly filed@ for purposes of ' 2244(d)(2)); and Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (concluding state postconviction petition denied as untimely by state court is not Aproperly filed@), ptn. for cert. filed, No. 99-8819 (U.S. March 20, 2000); and Dictado v. Ducharme, 189 F.3d 889, 892 (9th Cir. 1999) (same); and Morris v. Horn, 187 F.3d 333, 338 (3d Cir. 1999) (stating, in dicta, that if the state dismissed petitioner=s state postconviction petition for untimeliness, the statute of limitations Awould not have been tolled during its pendency@); and Tinker v. Hanks, 172 F.3d 990, 991 (7th Cir. 1998) (holding application for permission required to file successive petition under state law not Aproperly filed@), ptn. for cert. filed, No. 99-7682 (U.S. Dec. 27, 1999); and Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998) (holding untimely appeal of denial of state postconviction relief not Aproperly filed@); and United States ex rel. Gooch v. Scillia, 56 F.Supp.2d 1040, ___ (N.D. Ill. 1999) (concluding petition for postconviction relief was not properly filed where state appellate court denied motion for leave to file late appeal as untimely); and McClain v. Page, 36 F.Supp.2d 819, ___ (C.D. Ill. 1999) (concluding state postconviction petition dismissed as untimely was not Aproperly filed@).

[174] 120 S. Ct. 1669 (2000) (granting certiorari to review Bennett v. Artuz, 199 F.3d 116 (2d Cir. 1999)).

[175] See Jefferson v. Welborn, ___ F.3d ___, 2000 WL 862846 (7th Cir. June 29, 2000) (adopting analysis used in procedural default context in Harris v. Reed, 489 U.S. 255 (1989)).

[176] See Freeman v. Page, 208 F.3d 572, ___ (7th Cir. 2000).

[177] See Nyland v. Moore, ___ F.3d ___, 2000 WL 873315 (11th Cir. June 30, 2000); Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999); Jackson v. Dormire, 180 F.3d 919, 920 (8th Cir. 1999) (where petitioner filed federal habeas petition containing exhausted and unexhausted claims on last day of limitations period, and exhausted unexhausted claims by filing in state court two weeks later, newly exhausted claims are barred by limitations period); Sperling v. White, 30 F.Supp.2d 1246, 1250 (C.D. Cal. 1998). Cf. Geraci v. Senkowski, 211 F.3d 6, ___ (2d Cir. 2000) (dicta).

[178] See Walker v. Artuz, 208 F.3d 357, 361-62 (2d Cir. 2000); Banks v. Horn, 63 F.Supp.2d 525, ___ (M.D. Pa. 1999); Barrett v. Yearwood, 63 F.Supp.2d 1245 (E.D. Cal. 1999).

[179] See Austin v. Mitchell, 200 F.3d 391, ___ (6th Cir. 1999), cert. denied, 120 S. Ct. 2211 (2000). Accord Dilworth v. Johnson, ___ F.3d ___, 2000 WL 791943 (5th Cir. June 19, 2000).

[180] See Estelle v. McGuire, 502 U.S. 62, 68 (1991).

[181] See Austin v. Mitchell, 200 F.3d 391, ___ (6th Cir. 1999) (Aa state petition for post-conviction or other collateral review must present a federally cognizable claim for it to toll the statute of limitations pursuant to 28 U.S.C. ' 2244(d)(2).@), cert. denied, 120 S. Ct. 2211 (2000).

[182] See Blasi v. Attorney General, 30 F.Supp.2d 481, ___ (M.D. Pa. 1998); Parker v. Johnson, 988 F. Supp. 1474, 1476 (N.D. Ga. 1998); Ashmus v. Calderon, 977 F. Supp. 987, 992 (N.D. Cal. 1997); Healy, 981 F. Supp. at 705-708; Martin v. Jones, 969 F. Supp. 1058, 1061-1062 (M.D. Tenn. 1997); Parisi v. Cooper, 961 F. Supp. 1247, 1248-1249 (N.D. Ill. 1997); Valentine v. Senkowski, 966 F. Supp. 239, 240-241 (S.D. N.Y. 1997).

[183] See Easterwood v. Champion, 213 F.3d 1321 (10th Cir. 2000); Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000); Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000); Adeline v. Stinson, 206 F.3d 249, 252 (2d Cir. 2000); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 120 S. Ct. 1846 (2000); Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999); Haney v. Addison, 175 F.3d 1217, ___ (10th Cir. 1999); Barnett v. Lemaster, 167 F.3d 1321, ___ (10th Cir. 1999); Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998); Hoggro v. Boone, 150 F.3d 1223, ___ (10th Cir. 1998). The Fifth Circuit has declined to extend the Amailbox rule@ of Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L.Ed.2d 245 (1988), to the determination of when a state postconviction application is pending under ' 2244(d)(2). See Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999), cert. denied, 120 S. Ct. 1564 (2000).

[184] See Jackson v. Dormire, 180 F.3d 919, 920 (8th Cir. 1999); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000), ptn. for cert. filed, No. 99-8819 (U.S March 20, 2000).

[185] See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000), ptn. for cert. filed, No. 99-8819 (U.S March 20, 2000); Bingham v. Anderson, 21 F.Supp.2d 639, ___ (S.D. Miss. 1998).

[186] See Williams v. Cain, ___ F.3d ___, 2000 WL 867839 n.4 (5th Cir. June 29, 2000); Easterwood v. Champion, 213 F.3d 1321, ___ (10th Cir. 2000); Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000); Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000); Peterson v. Gammon, 200 F.3d 1202, 1204-05 (8th Cir. 2000); Bennett v. Artuz, 199 F.3d 116, 119-121 (2d Cir. 1999), cert. granted, 120 S. Ct. 1669 (2000); Mills v. Norris, 187 F.3d 881, 882 (8th Cir. 1999); Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999), cert. denied, 120 S. Ct. 1262 (2000); Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir. 1999), cert. denied, 120 S. Ct. 1846 (2000); Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999); Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir. 1999), cert. denied, 120 S. Ct. 811 (2000); Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999); Gendron v. United States, 154 F.3d 672, ___ (7th Cir. 1998), cert. denied, 119 S. Ct. 1758 (1999); Lovasz v. Vaughn, 134 F.3d 146, 149 (3d Cir. 1998); Rice v. Trippett, 63 F.Supp.2d 784, ___ (E.D. Mich. 1999); Matthews v. Abramajtys, 39 F.Supp.2d 871, ___ (E.D. Mich. 1999); Hudson v. Jones, 35 F.Supp.2d 986, ___ (E.D. Mich. 1999).

[187] See Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000).

[188] See Nyland v. Moore, ___ F.3d ___, 2000 WL 873315 (11th Cir. June 30, 2000) (discussing Florida law).

[189] See Geraci v. Senkowski, 211 F.3d 6, ___ (2d Cir. 2000); Ramos v. Walker, 88 F.Supp.2d 233, ___ (S.D. N.Y. 2000); Blouin v. Headley, 70 F.Supp.2d 221, ___ (E.D. N.Y. 1999).

[190] See Coates v. Byrd, 211 F.3d 1225, 1227 (11th Cir. 2000); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, 120 S. Ct. 1834 (2000); Rhine v. Boone, 182 F.3d 1153, 1155-56 (10th Cir. 1999), cert. denied, 120 S. Ct. 808 (2000); Ramos v. Walker, 88 F.Supp.2d 233, ___ (S.D. N.Y. 2000). But see Blasi v. Attorney General, 30 F.Supp.2d 481, ___ (M.D. Pa. 1998) (extending tolling period for state collateral review to include 90 days in which petitioner could have sought certiorari review).

[191] See Easterwood v. Champion, 213 F.3d 1321, ___ (10th Cir. 2000); Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000); Smith v. McGinnis, 208 F.3d 13, 16-17 (2d Cir. 2000), ptn. for cert. filed, No. 99-9695 (U.S. April 17, 2000); Villegas v. Johnson, 184 F.3d 467, 472 (5th Cir. 1999); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 120 S. Ct. 1846 (2000); Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999); Haney v. Addison,175 F.3d 1217, ___ (10th Cir. 1999); Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir. 1999), cert. denied, 120 S. Ct. 811 (2000); Flanagan v. Johnson, 154 F.3d 196, 199 n.1 (5th Cir. 1998). Cf. Romo v. Oklahoma Dept. of Corr., ___ F.3d ___, 2000 WL 781354 (10th Cir. June 19, 2000) (raising but declining to decide issue).

[192] See, e.g., United States v. Patterson, 211 F.3d 927, 928 (5th Cir. 2000); Harris v. Hutchinson, 209 F.3d 325, ___ (4th Cir. 2000); Akins v. United States, 204 F.3d 1086, 1089 (11th Cir. 2000); Molo v. Johnson, 207 F.3d 773, ___ (5th Cir. 2000); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), ptn. for cert. filed, No. 99-9695 (U.S. April 17, 2000); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999); Moore v. United States, 173 F.3d 1131, 1134 (8th Cir. 1999); Calderon v. United States District Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc), cert. denied, 119 S. Ct. 1377 (1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S. Ct. 1474 (1999); Miller v. New Jersey State Dept. of Corr., 145 F.3d 616, 617-618 (3d Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891 (1998). Cf. United States v. Cicero, 214 F.3d 199, ___ (D.C. Cir. 2000) (dicta).

[193] See Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (noting equitable tolling Amust be reserved for those rare instances where C due to circumstances external to the party=s own conduct B it would be unconscionable to enforce the limitation period against the party and gross injustice would result@); Smith v. McGinnis, 208 F.3d 13, ___ (2d Cir. 2000) (rare and exceptional circumstances), ptn. for cert. filed, No. 99-9695 (U.S. April 17, 2000); Miller v. New Jersey Dept. of Corr., 145 F.3d 616, 618 (3d Cir. 1998) (equitable tolling available where Apetitioner has >in some extraordinary way . . . been prevented from asserting his or her rights.=@); Turner v. Johnson, 177 F.3d 390, 391 (5th Cir. 1999) (Arare and exceptional circumstances@) (quoting Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998), cert. denied, 119 S. Ct. 1474 (1999)); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997)(Aextraordinary circumstances@ beyond the applicant=s control make it impossible to file a petition on time), cert. denied, 522 U.S. 1099, 523 U.S. 1061 (1998); Whalem/Hunt v. Early, 204 F.3d 907, 909 (9th Cir. 2000) (same); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). Cf. United States v. Cicero, 214 F.3d 199, ___ (D.C. Cir. 2000) (dicta).

[194] See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), ptn. for cert. filed, No. 99-9695 (U.S. April 17, 2000); Akins v. United States, 204 F.3d 1086, 1089 (11th Cir. 2000); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999), cert. denied, 120 S. Ct. 1564 (2000); Fisher v. Johnson, 174 F.3d 710, ___ (5th Cir. 1999); Paige v. United States, 171 F.3d 559, ___ (8th Cir. 1999) (concluding federal prisoner Avoluntarily took the risk of a late delivery when he decided to have his incarcerated brother prepare his ' 2255 motion and mail it to him from another institution); Cantu-Tzin v. Johnson, 162 F.3d 295, 299-300 (5th Cir. 1998), cert. denied, 525 U.S. 1091 (1999); Miller v. New Jersey Dept. of Corr., 145 F.3d 616, 618-19 (3d Cir. 1998). Cf. United States v. Cicero, 214 F.3d 199, ___ (D.C. Cir. 2000) (stating in dicta Athe court will not relieve a petitioner who has sat upon his rights@).

[195] See United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (rejecting argument that statute of limitations should be equitably tolled for one day: A[P]etitioner=s argument that the deadline was unclear . . . makes no sense, because if it was unclear, they should have filed by the earliest possible deadline, not the latest. The deadline simply was missed.@); Harris v. Hutchinson, 209 F.3d 325, 331 (4th Cir. 2000) (AIn short, a mistake by a party=s counsel in interpreting a statute of limitations does not present the extraordinary circumstance beyond the party=s control where equity should step in to give the party the benefit of his erroneous understanding@); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1998); Miller v. New Jersey Dept. of Corr., 145 F.3d 616, 619 (3d Cr. 1998); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (Amere attorney negligence . . . is not a basis for equitable tolling@); United States v. Griffin, 58 F.Supp.2d 863, 867 (N.D. Ill. 1999).

[196] See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000), ptn. for cert. filed, No. 99-10243 (U.S. May 8, 2000); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891 (1998); Posada v. Schomig, 64 F.Supp.2d 790 (C.D. Ill. 1999); Bilodeau v. Angelone, 39 F.Supp.2d 652, 659 n.1 (E.D. Va. 1999), appeal dismissed, 182 F.3d 906 (4th Cir. 1999) (Table). Cf. United States v. Cicero, 214 F.3d 199, ___ (D.C. Cir. 2000) (dicta).

[197] See Eisermann v. Penarosa, 33 F.Supp.2d 1269, 1273 (D. Hawaii 1999). Cf. United States v. Cicero, 214 F.3d 199, ___ (D.C. Cir. 2000) (dicta).

[198] See Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891 (1998); Hood v. Galaza, 47 F.Supp.2d 1144, 1148 (S.D. Cal. 1999); Hullum v. Maloney, 14 F.Supp.2d 164, 166 (D. Mass. 1998).

[199] See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000), ptn. for cert. filed, No. 99-10243 (U.S. May 8, 2000); Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir. 2000), ptn. for cert. filed, No. 99-9695 (U.S. April 17, 2000); Turner v. Johnson, 177 F.3d 390, 391 (5th Cir. 1999), cert. denied, 120 S. Ct. 504 (1999); Bilodeau v. Angelone, 39 F.Supp.2d 652, 659 n.1 (E.D. Va. 1999) (concluding petitioner=s Aignorance of the law and . . . decision to blindly seek legal assistance@ do not warrant equitable tolling), appeal dismissed, 182 F.3d 906 (4th Cir. 1999) (Table).

[200] See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000), ptn. for cert. filed, No. 99-10243 (U.S. May 8, 2000).

[201] See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000), ptn. for cert. filed, No. 99-10243 (U.S. May 8, 2000); United States v. Zuno-Arce, 25 F.Supp.2d 1087, 1099 (C.D. Cal. 1998), aff=d, 209 F.3d 1095 (9th Cir. 2000). See also Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (without deciding whether innocence can provide the basis for equitable tolling, concluding that petitioner failed to show innocence).

[202] Fisher v. Johnson, 174 F.3d 710, ___ (5th Cir. 1999).

[203] See Molo v. Johnson, 207 F.3d 773, 775 n.1 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).

[204] See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).

[205] Fisher v. Johnson, 174 F.3d 710, ___ (5th Cir. 1999).

[206] Harris v. Hutchinson, 209 F.3d 325, ___ (4th Cir. 2000).

[207] See, e.g., Calderon v. United States District Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998), cert. denied, 526 U.S. 1060 (1999) (holding equitable tolling was appropriate where the district court stayed Aall other aspects@ of the case pending a determination of petitioner=s competency, thus precluding petitioner from timely filing); Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999) (holding equitable tolling warranted where district court granted petitioner extension of time to file federal petition and petitioner filed within time period allowed by court=s order).

[208] See, e.g., United States v. Patterson, 211 F.3d 927, 931 (5th Cir. 2000) (concluding equitable tolling warranted where petitioner Arelied to his detriment on the district court=s granting of his request to dismiss the initial, timely filed ' 2255 motion in order to refile it at a later date.@); Mason v. Meyers, 208 F.3d 414, ___ (3d Cir. 2000) (reversing district court=s dismissal of ' 2254 petition where a district court failed to provide a pro se litigant warnings about the AEDPA before ruling on the merits); United States v. Miller, 197 F.3d 644, ___ (3d Cir. 1999) (same); Calderon v. United States District Court (Kelly), 163 F.3d 530, 541-42 (9th Cir.) (en banc), cert. denied, 526 U.S. 1060 (1999); Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998), cert. denied, 526 u.S. 1074 (1999); United States v. Miller, 197 F.3d 644, ___ (3d Cir. 1999); Brandon v. United States, 89 F.Supp.2d 731, ___ (E.D. Va. 2000) (concluding that equitable tolling is appropriate where neither petitioner nor his attorney received notice that the petition for writ of certiorari was denied until after the limitations period ran: AAbsent reasonable notice of the decision rendering petitioner=s conviction final, it is inequitable to begin the one-year statute of limitations period on the day petitioner=s conviction became final.@); Kethley v. Berge, 14 F.Supp.2d 1077, 1079-1080 (E.D. Wisc. 1998).

[209] See Lewis v. United States, 985 F. Supp. 654, 657-658 (S.D. W.Va. 1997).

[210] See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).

[211] Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1289 (9th Cir. 1997), cert. denied, 523 U.S. 1061, 522 U.S. 1099 (1998).

[212] See Dennis v. Woodford, 65 F.Supp.2d 1093, 1096 (N.D. Cal. 1999).

[213] See Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000) (AThere is no indication that [petitioner=s] counsel was concerned about dates and limitations until it was too late to matter.@); Harris v. Hutchinson, 209 F.3d 325, 331 (4th Cir. 2000) (AIn short, a mistake by a party=s counsel in interpreting a statute of limitations does not present the extraordinary circumstance beyond the party=s control where equity should step in to give the party the benefit of his erroneous understanding@); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1998) (ANormally, . . . a lawyer's mistake is not a valid basis for equitable tolling.@); Sandvik v. United States, 177 F.3d 1269, 1270 (11th Cir. 1999) (holding equitable tolling unavailable where ' 2255 motion was untimely because sent by counsel via regular rather than certified mail); see also Turner v. Singletary, 46 F.Supp.2d 1238, 1243 (N.D. Fla. 1999) (same); Raynor v. Dufrain, 28 F.Supp.2d 896, 900 (S.D.N.Y. 1998).

[214] See Helton v. Singletary, 85 F.Supp.2d 1323, 1328 (S.D. Fla. 1999) (holding petitioner entitled to equitable tolling where collateral counsel misadvised him as to when the one-year limitation period began to run and petitioner filed his federal petition in accordance with counsel=s erroneous statement of the law);United States v. Griffin, 58 F.Supp.2d 863, 870 (N.D. Ill. 1999) (concluding equitable tolling may be warranted where defendant told counsel to appeal and counsel failed to do so); Baskin v. United States, 998 F. Supp. 188, 190 (D. Conn. 1998); Lewis v. United States, 985 F. Supp. 654, 657-658 (S.D. W.Va. 1997); Henderson v. Johnson, 1 F.Supp.2d 650, 654 (N.D. Tex. 1998).

[215] See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000).

[216] See, e.g., Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999); Calderon v. United States District Court (Kelly), 163 F.3d 530, 541 (9th Cir.) (en banc), cert. denied, 526 U.S. 1060 (1999).

[217] Brandon v. United States, 89 F.Supp.2d 731, 734 (E.D. Va. 2000).

[218] See Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1285 (9th Cir. 1997), cert. denied, 522 U.S. 1099, 523 U.S. 1061 (1998); Dennis v. Woodford, 65 F.Supp.2d 1093, 1097 (N.D. Cal. 1999); United States v. Jones, 963 F. Supp. 32 (D. D.C. 1997), appeal denied, 1999 WL 325480 (D. C. Cir. 1999). See also United States v. Cicero, 214 F.3d 199, ___ (D.C. Cir. 2000) (declining to equitably toll limitations period in part because petitioner failed to ask for an extension of time).

[219] See United States v. Leon, 203 F.3d 162, 164 (2d Cir. 2000) (per curiam); In re Wattanasiri, 982 F. Supp. 955, 957-58 (S.D. N.Y. 1997).

[220] See United States v. Estupinan-Paredes, 967 F. Supp. 39 (D. P.R. 1997).

[221] See United States v. Jones, 963 F. Supp. 32 (D. D.C. 1997), appeal denied, 1999 WL 325480 (D.C. Cir. 1999).

[222] See, e.g., United States v. Duffus, 174 F.3d 333, 336 (3d Cir.), cert. denied, 120 S. Ct. 163 (1999).

[223] See United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000); Williams v. Vaughn, 3 F.Supp.2d 567, 580-581 (E.D. Pa. 1998).

[224] See United States v. Pittman, 209 F.3d 314, 317-18 (4th Cir. 2000) (concluding new claims do not Arelate back@ to the original claims because they arise from separate occurrences of Aboth time and type@); United States v. Duffus, 174 F.3d 333, 338 (3d Cir.) (AA prisoner should not be able to assert a claim otherwise barred by the statute of limitations merely because he asserted a separate claim within the limitations period.@), cert. denied, 120 S. Ct. 163 (1999); United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999) (AIf the ineffective conduct alleged by Craycraft in his first petition cannot be said to have arisen out of the same set of facts as his amended claim, his amendment cannot relate back and his claim must be time-barred since it was filed after the statutory period of limitation.@); McClain v. Hill, 52 F.Supp.2d 1133, ___ (C.D. Cal. 1999) (denying leave to amend petition to include new claim of ineffective assistance of appellate counsel, where pending petition alleged only errors occurring during petitioner=s trial); Eubanks v. United States, 11 F.Supp.2d 455, 466 n.15 (S. D.N.Y. 1998) (APetitioner=s additional claim filed after the deadline is not procedurally valid as of right merely because it is labeled >supplemental= to the original petition.@). Cf. Coss v. Lackawanna County District Attorney, 204 F.3d 453, 461 (3d Cir. 2000) (en banc) (concluding amendment to pre-AEDPA petition Arelates back@ to earlier filing date where petitioner simply deleted unexhausted claims from the petition; the second petition should be viewed as Atantamount to a further amendment or clarification to his initial petition,@ and the claims asserted therein should be considered as Ahaving been asserted in a petition filed prior to AEDPA=s enactment date@), ptn. for cert. filed, 68 U.S.L.W. 3749, No. 99-1884 (2000)

[225] Rose v. Lundy, 455 U.S. 509, 518, 102 S. Ct. 1198, 1203, 71 L.Ed.2d 379 (1982).

[226] See Nyland v. Moore, ___ F.3d ___, 2000 WL 873315 (11th Cir. 2000); Jones v. Morton, 195 F.3d 153, 160-61 (3d Cir. 1999) (Aif a petition is dismissed for failure to exhaust state remedies, a subsequent petition filed after exhaustion is completed cannot be considered an amendment to the prior petition, but must be considered a new action@); Graham v. Johnson, 168 F.3d 762, 775-81 (5th Cir. 1999), cert. denied, 120 S. Ct. 1830 (2000); Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir.) (holding that even though petitioner was in custody at time initial petition was filed, once initial petition was dismissed for lack of exhaustion and district court did not expressly or impliedly retain jurisdiction over action, petition filed subsequent to exhaustion of claims in state court did not relate back under Rule 15(c) for purposes of determining custody), cert. denied, 120 S. Ct. 397 (1999).

[227] See Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir.), cert. denied, 120 S. Ct. 397 (1999).

[228] See Freeman v. Page, 208 F.3d 572, ___ (7th Cir. 2000); Ashmus v. Calderon, 977 F. Supp. 987, 993 (N.D. Cal. 1997). But see Parker v. Johnson, 988 F. Supp. 1474, 1476-1477 (N.D. Ga. 1998) (holding federal petition in abeyance only as to exhausted claims, and deeming federal review of petitioner=s unexhausted claims to be time-barred). Some circuits, however, do not allow federal habeas proceedings to be held in abeyance absent exceptional circumstances. See, e.g., Christy v. Horn, 115 F.3d 201, 207 (3d Cir. 1997); United States v. Ortiz, 136 F.3d 161, 166 n.9 (D.C. Cir. 1998); Victor v. Hopkins, 90 F.3d 276, 281 (8th Cir. 1996), cert. denied, 519 U.S. 1153 (1997).

[229] See United States ex rel. Chambers v. Page, 39 F.Supp.2d 1091, ___ (N.D.Ill. 1999) (noting court had previously dismissed petition without prejudice and granted leave to reinstate within 70 days of the termination of state postconviction proceedings); Kethley v. Berge, 14 F.Supp.2d 1077, 1078 (E.D. Wis. 1998) (dismissing action without prejudice and permitting petitioner Ato reopen this petition when his state remedies are properly exhausted. Additionally, petitioner will retain the benefit of the present case number and original filing date when his file is reopened.@); Parisi v. Cooper, 961 F. Supp. 1247, 1248 (N.D. Ill. 1997).

[230] See Hanson v. Albaugh, ___ F.Supp.2d ___, 2000 WL 426420 (S.D.N.Y. 2000) (granting petitioner=s motion to withdraw habeas petition so that he may return to state court to exhaust; Ait is appropriate in this case to dismiss the petition without prejudice to the petitioner=s right to file an amended petition after he exhausts his state remedies so that the amended petition will relate back to the date of the original filing and not be time-barred.@); Williams v. Vaughn, 3 F.Supp.2d 567, 581 (E.D.Pa. 1998). But see Sperling v. White, 30 F.Supp.2d 1246, 1253 (S.D. Cal. 1998) (relation back following dismissal of federal petition without prejudice Alacks any adequate basis in law@).

[231] See Royal v. Taylor, 188 F.3d 239, 249 (4th Cir.) (concluding any error in the district court=s failure to provide petitioner with a full year to file his petition was harmless under Brecht v. Abrahamson), cert. denied, 120 S. Ct. 465 (1999).