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 pending[.]” 28 U.S.C. § 2244 (d)(2) (emphasis added). Given the Garceau Court’s explanation of what constitutes an “application,” I cannot see how Isley’s Rule 32.1 Notice under Arizona law qualifies. Although a Rule 32.1 Notice may sometimes contain a bare request for relief, it does not raise any claims, contain any argument or citation to authority, or permit a decision on the merits. It is not the equivalent of a civil complaint. Rather, its function is to alert the state court to the possible need to appoint counsel. It thus serves the same purpose as a motion for appointment of counsel — the very type of pleading that the Garceau court said was not an “application.”

The court erroneously states that a Rule 32.1 Notice “must contain a request for relief from the judgment of conviction.” Maj. Op. at 13417. The Notice that Isley filed contains one section (question 7) that must be completed only “if the defendant requests counsel and has filed a previous Rule 32 petition[.]” For defendants who fit that description, three questions must be answered: (A) is a claim of ineffective assistance of counsel being raised in the petition? (B) is this the first such claim being raised? and (C) if not, what action does the defendant request the court to take and why should the court take that action?

Isley hand-wrote “Defendand request a new trial” [sic] under section 7(C) of his Notice. Because this was his first Rule 32 petition, there was no need for him to write anything at all in section 7. Nowhere did the form require Isley to make a request for relief; it only asked for his contact information, criminal case history on direct and collateral review, contact information for prior counsel, and whether he was requesting appointment of counsel for his Rule 32 proceeding.

The Rule 32.1 Notice form appears to have changed slightly since Isley filed his request back in 1998. See Ariz. R.Crim. P. Form 24(c) (2004) at ¶7(0). Currently, paragraph 7(C) asks defendants to “state the facts that support [certain types of untimely or successive claims] and the reasons for not raising the claim in the previous petition or in a timely manner.” Id. It also states “I am requesting post-conviction relief. I understand that I must include in my petition every ground for relief which is known and which has not been raised and decided previously.” Id. Whether this new Notice form constitutes a “properly filed application” under 28 U.S.C. § 2244 (d) is not before us, but, in light of Garceau’s clear holding, the specific Notice Isley filed here does not.

*1058 I recognize that, under Arizona law, a post-conviction proceeding is commenced when this Notice is filed, and that, unlike in the federal system, indigent Arizona prisoners are entitled to counsel for their first petitions. See Ariz. R.Crim. P. 32.4(a). But we must focus on the language of the federal statute in question. 28 U.S.C. § 2244 (d)(2) does not require us to decide when a post-conviction proceeding “commences” in Arizona, but instead whether a Rule 32.1 Notice is a “properly filed application” that triggers the tolling of the AEDPA’s one-year statute of limitation. Garceau’s reasoning is compelling: Isley’s Notice was not an “application” for state collateral relief; it was the equivalent of a motion for appointment of counsel. Because Isley did not have a state petition for post-conviction relief pending until June 18, 1999, the district court properly dismissed his federal petition as untimely.

I respectfully dissent.