Bradford K. Isley v. Arizona Department of Corrections Terry L. Stewart Jeff Hood Arizona Attorney General

Arizona state prisoner Bradford K. Isley appeals the district court’s dismissal as untimely of his 28 U.S.C. § 2244 petition for writ of habeas corpus. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), state prisoners must file any petition for federal post-conviction relief within one year of the date that the state court judgment against them became final. 28 U.S.C. *1055 § 2244 (d)(1)(A). The AEDPA one year limitation period is tolled so long as “a properly filed application for State post-conviction or other collateral review” is “pending.” 28 U.S.C. § 2244 (d)(2).

Isley’s actual petition was not filed for more than a year after his conviction became final, but there is a dispute about how long his application for state court relief was “pending.” In Arizona, before filing a petition for relief, a petitioner must first file a “Notice of Post-Conviction Relief’ so that the state guaranteed right to counsel can be enforced. See Ariz. R.Crim. P. 32.4(a). This appeal requires us to decide whether tolling began when Isley filed his “Notice of Post-Conviction Relief’ under Arizona Rule 32.4(a) or when he filed his actual petition for state post-conviction…

dissenting:

By holding that Isley’s state petition was “pending” when he filed his Notice, the court eschews the Supreme Court’s holding in Woodford v. Garceau, 538 U.S. 202 , 123 S.Ct. 1398 , 155 L.Ed.2d 363 (2003), that a motion for the appointment of counsel does not commence a federal habeas case for purposes of the rule announced in Lindh v. Murphy, 521 U.S. 320 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997). Garceau, 538 U.S. at 206-07 , 123 S.Ct. 1398 . The Supreme Court focused on the fact that the AEDPA places a heavy emphasis on “the merits of a habeas application,” id. at 206 , 123 S.Ct. 1398 (emphasis added), and that a motion for appointment of counsel cannot qualify as an application because it does not permit a decision on the merits. Id. at 207 , 123 S.Ct. 1398 . We were instructed by the Garceau Court that an application or petition for habeas relief must be the equivalent of a civil complaint. Id. at 208 , 123 S.Ct. 1398 ; see also Fed.R.Civ.P. 3.

The AEDPA’s one-year limitation period may be tolled for “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is…

383 F.3d 1054 Bradford K. ISLEY, Petitioner-Appellant, v. ARIZONA DEPARTMENT OF CORRECTIONS; Terry L. Stewart; Jeff Hood; Arizona Attorney General, Respondents-Appellees. No. 03-15858. United States Court of Appeals, Ninth Circuit. Submitted June 15, 2004. * Filed September 15, 2004. Bradford K. Isley, Pro Se, Florence, AR, petitioner-appellant. Kerri L. Chamberlin, Assistant Attorney General, Phoenix, AR, for the respondents-appellees. Appeal from the United States District Court for the District of Arizona, Mary H. Murguia, District Judge, Presiding. D.C. No. CV-01-01567-MHM. Before: SCHROEDER, Chief Judge, CANBY, JR., and TALLMAN, Circuit Judges. SCHROEDER, Chief Judge: 1 Arizona state prisoner Bradford K. Isley appeals the district court's dismissal as untimely of his 28 U.S.C. § 2244 petition for writ of habeas corpus. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), state prisoners must file any petition for federal post-conviction relief within one year of the date that the state court judgment against them became final. 28 U.S.C. § 2244 (d)(1)(A). The AEDPA one year limitation period is tolled so long as "a properly filed application for…