dissenting:

Dictado’s petition was “properly filed” for purposes of tolling the AEDPA limitations period because Dictado satisfied Washington’s procedural requirements for filing a petition based on newly discovered evidence. Although Washington courts ultimately rejected the petition as “repetitive and untimely,” this conclusion was based on an examination of the merits, specifically whether the proffered evidence qualified as newly discovered evidence. The court’s decision on the merits is not a valid basis for refusing to toll the period in which Dictado could file a federal petition.

The great majority of federal decisions interpreting the phrase “properly filed” in section 2244(d)(2) hold that it refers to compliance with the state’s basic procedural requirements for filing a petition, without regard to the merits of the petition. 1 The Third Circuit held in Lovasz v. Vaughn, 134 F.3d 146 (3d Cir.1998), that a second or successive state petition summarily dismissed by Pennsylvania courts was “properly filed” because the state permitted the filing of second or subsequent petitions and the petitioner apparently satisfied the state’s procedural requirements for filing such a petition. See id. at 148 . Although the state had “announced strict rules regarding the granting of second and subsequent ... petitions,” id., the Third Circuit did not consider whether Lovasz’s petition satisfied those rules before concluding that the petition was “properly filed.” In short, the court did not review the merits of the petition.

This case is indistinguishable from Lo-vasz. Like Pennsylvania, Washington recognizes exceptions to its bar against successive petitions, see Wash. Rev.Code § 10.72.140, as well as exceptions to its one-year time limit for filing petitions for post-conviction review, see Wash. Rev. Code § 10.73.100 . Dictado invoked one of those exceptions: he claimed his petition was based on newly discovered evidence. See § 10.73.100(1). 2 He also complied with the procedural requirements for filing a petition based on newly discovered evi *894 dence: he filed the petition “with due diligence” after discovering the new evidence. Id. 3 Dictado obtained the affidavit he claims is new evidence in February 1997 and he filed his petition the same month. Therefore, Dictado’s petition must be deemed “properly filed” even if it lacked merit. See Lovasz, 134 F.3d at 149 (“[W]e reject the notion that a meritless [state] petition cannot constitute ‘a properly filed application’ under § 2244(d)(2).”).

The majority does not dispute the Third Circuit’s analysis in Lovasz . Rather, it claims this panel is bound by the Washington Supreme Court’s ultimate conclusion that Dictado’s petition was time-barred and successive. See ante, at 891-92. The Washington Supreme Court reached this conclusion, however, only after reviewing the merits of the petition:

In re Dictado, No. 65198-1, at 2-3 (Wash. April 18, 1997) (order denying discretionary review). By treating the foregoing passage as preclusive on the issue of whether Dictado’s petition was properly filed, the majority transforms § 2244(d)(2) into a merits-based tolling provision, contrary to the plain meaning of the statute and contrary to the nearly-unanimous judgment of federal courts that have interpreted the provision. See supra note 1.

If. a state permits prisoners to file successive petitions or petitions outside the limitations period, and the prisoner complies with the basic procedural requirements for filing such petitions, federal courts should not interfere with that state policy, but should deem the petitions “properly filed.” See Lovasz, 134 F.3d at 148 (“[I]f a state allows petitioners to file second or subsequent petitions for post-conviction relief, federal courts should not undermine the state’s decision by refusing to toll the one-year period of limitation” while the petition is pending.). Washington permits a prisoner to file a petition based on newly discovered evidence outside the ordinary limitations period, as long as the prisoner acts with due diligence; Dictado filed his petition with due diligence after obtaining what he claimed was newly discovered evidence; Washington permitted it to be filed and considered it on the merits. Thus, the petition must be deemed “properly filed” and Dictado *895 should be permitted to file his federal petition in district court.

. See, e.g., Lovasz v. Vaughn, 134 F.3d 146, 147 (3d Cir.1998) (holding that “a second or subsequent [state] petition for post-conviction relief, filed according to the procedural rules of the state, constitutes ‘a properly filed application’ ... without regard to the merits of the petition.”); Patterson v. Director, Virginia Dep’t of Corrections, 36 F.Supp.2d 317, 318-319, 320 (E.D.Va.1999) (holding that second and third state habeas petitions that were dismissed as impermissible successive petitions were "properly filed”); United States ex rel. Morgan v. Gilmore, 26 F.Supp.2d 1035, 1039-41 (N.D.Ill.1998) (holding that second state petition for post-conviction relief that was dismissed as "frivolous and patently without merit” was "properly filed”); Souch v. Harkins, 21 F.Supp.2d 1083, 1086 (D.Ariz.1998) (holding seventh state petition for post-conviction relief, which was based on newly discovered evidence but rejected by the state courts because the evidence was not newly discovered, was “properly filed”); Galindo v. Johnson, 19 F.Supp.2d 697, 698, 709 (W.D.Tex.1998) (holding that third state petition for post-conviction relief that was dismissed as an abuse of the writ was "properly filed”); Ellis v. Johnson, 11 F.Supp.2d 695, 697, 698 (N.D.Tex.1998) (holding that second state petition for post-conviction relief that was dismissed as an abuse of the writ was "properly filed”); Hughes v. Irvin, 967 F.Supp. 775, 778-79 (E.D.N.Y.1997) (holding that seventh application for post-conviction relief, which was rejected because evidence on which it was based was not properly authenticated, was "properly filed”). But see Valentine v. Senkowski, 966 F.Supp. 239, 241 (S.D.N.Y.1997) ("[T]his court assumes that ... a petition, although ... timely, must also be non-frivolous in order to be 'properly filed'....”); Hill v. Keane, 984 F.Supp. 157, 159 (E.D.N.Y.1997) (following Valentine). In Tinker v. Hanks, 172 F.3d 990 (7th Cir.1999), cited by the majority, the Seventh Circuit addressed a related but distinguishable issue: whether a motion for leave to file a successive state petition is a "properly filed application" for purposes of applying § 2244(d)(2).

. Section 10.73.140 permits successive petitions if the petitioner "has not filed a previous petition on similar grounds, and shows good cause why the petitioner did not raise the new grounds in the previous petition.” Wash. Rev.Code § 10.73.140. The state does not dispute that the discovery of new evidence can constitute "good cause.”

. Section 10.73.140 does not set forth particular procedural requirements for filing successive petitions. See Wash. Rev.Code § 10.73.140.