NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0230n.06

                                            No. 10-1454

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                 Feb 28, 2012
TYKEE ROSS,                                               )
                                                          )               LEONARD GREEN, Clerk
          Petitioner-Appellant,                           )
                                                          )   ON APPEAL FROM THE
v.                                                        )   UNITED STATES DISTRICT
                                                          )   COURT FOR THE EASTERN
KENNETH T. MCKEE, Warden,                                 )   DISTRICT OF MICHIGAN
                                                          )
          Respondent-Appellee.                            )




Before:          BOGGS and STRANCH, Circuit Judges; and CARR, District Judge*

                 BOGGS, Circuit Judge. Tykee Ross appeals a district court’s decision to dismiss his

petition for writ of habeas corpus as time-barred by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). Ross was convicted of first-degree felony murder and sentenced to life

imprisonment. After an unsuccessful direct appeal, he filed for state post-conviction relief, which

was denied by Michigan’s trial and appeals courts. Under Michigan law, Ross had fifty-six days

after the Michigan Court of Appeals rejected his claim to file an application for leave to appeal in

the Michigan Supreme Court. Ross, through counsel, attempted to comply by sending such an

application to the Michigan Supreme Court clerk’s designated mailing address via United States

Postal Service express mail. The properly addressed application arrived at the proper address at 9:05



          *
          Hon. James G. Carr, Senior United States District Judge for the Northern District of Ohio,
sitting by designation.
No. 10-1454
Ross v. McKee, Warden

a.m. on the last day of the filing period, as shown by a Postal Service receipt. The Michigan

Supreme Court, however, did not docket the application until the next day—one day after the end

of the filing period—and rejected the application as time-barred. Nearly one year later, Ross filed

his federal habeas petition. The district court dismissed the petition as time-barred, even though it

would have been timely, had the Michigan Supreme Court accepted Ross’s application for leave to

appeal, thus tolling the AEDPA statute of limitations. Evans v. Chavis, 

, 197 (2006)

(holding that properly filed application for state-court discretionary review tolls AEDPA limitations

period). The district court reasoned that AEDPA’s limitations clock started when the Michigan

Court of Appeals denied Ross relief, since the Michigan Supreme Court denied his application for

leave to appeal as improperly filed. It also held that Ross was not entitled to equitable tolling, based

on the state-court clerk’s delay in formally filing his application. For the reasons that follow, we

affirm in part, reverse in part, and remand for the district court to consider the merits of Ross’s

petition.

                                                   I

                Ross was convicted of first-degree felony murder in December 2001 and sentenced

to life imprisonment in January 2002. His direct appeal failed in the Michigan appeals and supreme

courts, and came to a conclusion when the time for filing a petition for writ of certiorari with the

Supreme Court passed on December 27, 2004. On January 25, 2005, Ross filed a motion for relief

from judgment in state court. The court denied his motion on July 29, 2005, and denied a motion

for reconsideration on December 1, 2005. On July 28, 2006, Ross filed a delayed application for



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Ross v. McKee, Warden

leave to appeal in the Michigan Court of Appeals. That court denied Ross’s application on March

30, 2007, and denied his motion for reconsideration on May 9, 2007.

                Ross, through counsel, then attempted to file an application for leave to appeal in the

Michigan Supreme Court. Under M.C.R. 7.302(C)(2), he had to file such an application no later

than fifty-six days after denial of his motion for reconsideration, or by July 4, 2007. Since July 4 is

a national holiday, however, Ross was required to file his application by the end of the day on July

5, 2007. The Michigan Supreme Court Clerk maintains a post office box at the state secondary

complex, where litigants may send filings. Ross’s application arrived at this post office box via

express mail at 9:05 a.m. on July 5, 2007. Although the tracking information Ross’s counsel

provided does not contain an address, the State does not dispute that the package was properly

addressed and arrived at the post office box at the time the receipt indicates. Nevertheless, the

clerk’s office failed to file the application until July 6, when it denied the application as time-barred.

                Nearly one year later, on June 1, 2008, Ross filed a petition for writ of habeas corpus

in the District Court for the Eastern District of Michigan.1 The State filed a motion to dismiss on

statute-of-limitations grounds. See 28 U.S.C. § 2244(d)(1) (creating one-year statute of limitations

for federal habeas from end of state post-conviction review); Jimenez v. Quarterman, 

,

119 (2009) (“[D]irect review cannot conclude for purposes of § 2244(d)(1)(A) until the availability

of direct appeal to the state courts and to this Court has been exhausted.”) (internal quotations and


        1
          As the district court noted, Ross gave his petition to prison officials on June 1, 2008, even
though the district court did not file it until June 11, 2008. Under the prisoner mailbox rule, the
petition is considered filed when placed in the prison mail system. Houston v. Lack, 

,
276 (1988).

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No. 10-1454
Ross v. McKee, Warden

citations excluded). Initially, the district court denied the State’s motion. It held that AEDPA’s

statute of limitations ran for twenty-eight days between the date Ross’s conviction became final and

the date he filed his state collateral-review pleading, and for another 331 days after the prescribed

period for seeking leave to appeal in the Michigan Supreme Court expired on July 5, 2007 until Ross

filed his federal habeas petition on June 1, 2008. Thus, the AEDPA limitations period had run for

only 359 days, and the petition was timely.

               The district court subsequently reconsidered its decision, and correctly held that an

improperly filed petition for discretionary review in state court did not toll the AEDPA statute of

limitations. 

. Ross’s petition for leave to appeal was late—and therefore

improper—under Michigan law. As such, the court held that the limitations period began to run

when the Michigan Court of Appeals denied Ross’s motion for reconsideration on May 9, 2007.

Ross’s June 2008 habeas petition was, therefore, untimely: twenty-eight days elapsed between the

day Ross’s conviction became final and the day he filed his state collateral-review pleading, and

another 388 days elapsed between the day the Michigan Court of Appeals denied his motion for

reconsideration, and the day he filed his petition for writ of habeas corpus. Ross appeals from this

decision. He argues first that he timely filed his motion for leave to appeal in the Michigan Supreme

Court; and second that equitable tolling is appropriate in this case because the motion for leave to

appeal arrived timely at the Michigan Supreme Court’s mailing address.

                                                 II

               AEDPA provides:



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Ross v. McKee, Warden

                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 date on
                which the judgment became final by the conclusion of direct review
                ....

28 U.S.C. § 2244(d)(1)(A). Direct review, within the meaning of § 2244(d)(1)(A), does not

conclude “until the availability of direct appeal to the state courts and to [the Supreme] Court has

been exhausted.” 

(internal quotations and citations omitted).

                AEDPA, however, tolls this limitations period 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). A petition for discretionary review in state

court counts as “state post-conviction or other collateral review,” ibid., and thus tolls AEDPA’s

statute of limitations, as long as it is timely filed. Carey v. Saffold, 

, 219–20 (2002);

(“[O]nly a timely appeal tolls AEDPA’s 1-year imitations period for the time

between the lower court’s adverse decision and the filing of a notice of appeal in the higher court.”).

If such a petition is untimely, however, the date of the last final lower-court decision is the date the

limitations period begins to run, since a petition for writ of certiorari following state post-conviction

review does not toll AEDPA’s statute of limitations. Lawrence v. Florida, 

, 331–36

(2007).

                                                    A

                Michigan Court Rule 7.302(C)(2)(b) requires that an “application [for leave to appeal]

. . . be filed . . . within . . . 56 days in criminal cases . . . after the filing of the opinion appealed

from.” M.C.R. 7.302(C)(2)(b). “Late applications [are] not . . . accepted.” 

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Ross v. McKee, Warden

                The Michigan Court of Appeals denied Ross’s application for leave to appeal on

March 30, 2007, and denied his motion for reconsideration on May 9, 2007. As such, Ross was

required to file his application for leave to appeal with the Michigan Supreme Court by July 5, 2007.

Ross’s application reached the Michigan Supreme Court’s mailing address at the state secondary

complex at 9:05 a.m. on July 5. The clerk, however, did not acknowledge receipt of the application

until July 6, fifty-seven days after the Court of Appeals’s decision, and one day after the end of the

prescribed filing period. The clerk denied the application as untimely, citing Rule 7.302(C)(2)(b).

When Ross questioned this decision, the clerk insisted: “late applications will not be accepted.”

Pet’r’s Br. at 17; M.C.R. 7.302(C)(3).

                Ross claims that, because his application for leave to appeal arrived timely at the

Michigan Supreme Court’s mailing address, it was timely filed under Michigan law. This court does

not have the power to resolve such a claim. To do so would be to dictate Michigan procedural law

to the Michigan Supreme Court. “This court . . . does not function as an additional state appellate

court reviewing state-court decisions on state law or procedure.” Vroman v. Brigano, 

,

604 (6th Cir. 2003) (internal citations omitted). Rather, as a federal court, we are “obligated to

accept as valid a state court’s interpretation of state law and rules of practice of that state.” 

to the Michigan Supreme Court’s interpretation of M.C.R. 7.302(C)(3), and hold

that Ross’s application for leave to appeal was not timely filed.

                Because an untimely application for leave to appeal does not toll AEDPA’s statute

of limitations, 

, the limitations clock—which had already run for twenty-eight

days between Ross’s direct and Michigan-collateral proceedings—began to run again on May 9,

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Ross v. McKee, Warden

2007, when the Michigan Court of Appeals denied Ross’s motion for reconsideration. Three-

hundred and eighty-eight days passed between that date and June 1, 2008, when Ross filed his

petition for writ of habeas corpus. In total, then, four-hundred and sixteen statute-of-limitations days

elapsed from the day Ross’s judgment became final to the day he filed his habeas petition. This

time-gap exceeds AEDPA’s one-year habeas statute of limitations. See 28 U.S.C. § 2244(d)(1)(A).

Ross’s petition is, therefore, time-barred in terms of statutory tolling.

                                                   B

                Ross next argues that the district court should address the merits of his petition

because he is entitled to equitable tolling from May 9, 2007 to July 5, 2007. He reasons that his

application for leave to appeal arrived at the mailing address the Michigan Supreme Court designated

for filings on the morning of July 5, the last day of the period created by state law for a timely

petition for leave to appeal. Had the clerk docketed the application that day, it would have been

properly filed, the AEDPA statute of limitations would have been tolled, and Ross’s federal habeas-

corpus petition would have been timely when he filed it on June 1, 2008.

                The Supreme Court recently confirmed that Ҥ 2244(d) is subject to equitable tolling

in appropriate cases.” Holland v. Florida, 

, 2560 (2010). Equitable tolling allows

courts to entertain otherwise time-barred proceedings when “a litigant’s failure to meet a legally

mandated deadline unavoidably arose from circumstances beyond that litigant’s control.” Graham-

Humphreys v. Memphis Brooks Museum of Art, 

, 560–61 (6th Cir. 2000). “Although

equitable tolling is used sparingly by federal courts,” this court does grant such relief in appropriate

circumstances. Johnson v. Hudson, 421 F. App’x 568, 571 (6th Cir. 2011).

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                “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and

prevented timely filing.” 

(internal quotations omitted); see also Hall

v. Warden, Lebanon Corr. Inst., 

, 749–50 (6th Cir. 2011) (holding that Holland test did

not subsume, but replaced, prior equitable-tolling test from Andrews v. Orr, 

, 151 (6th

Cir. 1988)). In determining whether a petitioner meets these two requirements, we “exercise . . .

[our] equity powers . . . on a case-by-case basis,” guided and governed by rules and precedents.

(internal citations omitted). “Where the facts of the case are undisputed

or the district court rules as a matter of law that equitable tolling is unavailable, this court reviews

the decision de novo.” 

.

                Ross urges that equitable tolling should apply because his application arrived at the

Michigan Supreme Court’s mailing address on the morning of July 5, 2007, the last day of the

appeals period. He suggests that he is entitled to equitable tolling because he diligently pursued his

rights by timely filing his documents, and the Michigan Supreme Court’s delay in accepting his

application was an extraordinary circumstance. We agree.

                This court considers documents filed when the United States Postal Service “[makes]

delivery at the place directed by the addressee.” Central Paper Co. v. Comm’r of Internal Revenue,

, 904 (6th Cir. 1952), superseded by statute, 26 U.S.C. § 7502, as recognized in

Thomas v. United States, 

, 829–30 (6th Cir. 1999). In Central Paper, a tax case, we

held that delivery to a ledge beside a lock-box the tax court designated for filings “constituted

delivery to The Tax Court.” 

“[t]here is no twilight zone between delivery

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by the Post Office to the addressee, and receipt, either actual or constructive, by the addressee,”

ibid., and concluded:

                the processing and handling of the petition by Tax Court employees
                [after the filing arrived] was no concern of the taxpayer. Failure or
                unreasonable delay on the part of Tax Court employees to transfer it
                from the lock box to the Clerk’s Office, or to stamp it as filed after
                receipt in the Clerk’s Office, is not chargeable to the taxpayer.

Our sister circuits, and district courts nationwide, have adopted similar logic, holding that

delay between a document’s arriving at a post office box or drop-box, designated for court

documents, and the clerk’s docketing the document is not attributable to the filing party. See, e.g.,

Stevens v. Heard, 

, 322 (5th Cir. 1982) (“[W]hen a party has no control over the delay

between the clerk’s receipt of a notice of appeal and its filing, the fact that a notice of appeal, timely

received, was filed out of time [does] not defeat the appeal.”) (emphasis added); Aldabe v. Aldabe,

, 1091 (9th Cir. 1980) (“Because an appellant has no control over delays between

receipt and filing, a notice of appeal is timely if received by the district court within the applicable

period specified in Rule 4.”); Turner v. City of Newport, 

, 150–51 (E.D. Ky. 1995)

(citing Central 

) (holding that placing a complaint in clerk’s office’s

postoffice box at 11:30 p.m. of the day the statute of limitations expired counted as timely filing);

Hetman v. Fruit Growers Express Co., 

, 237 (D.N.J. 1961) (“I find that the original

complaint in this action was in the Post Office box assigned to the Clerk of this Court in the United

States Post Office in the City of Newark on Saturday, April 22, 1961, and that therefore the action

was commenced within the time required.”); Johnson v. Esso Standard Oil Co., 

,

433–34 (D. Pa. 1960) (“I think that the delivery of this complaint to the Clerk in his post office box

                                                  -9-
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Ross v. McKee, Warden

on Monday, November 24, 1958, constituted a filing of the complaint and commencement of the

plaintiffs’ action on that day, which was prior to the expiration of the two-year period prescribed by

the statute of limitations.”); Johansson v. Towson, 

, 731 (M.D. Ga. 1959) (holding

that “the receipt by the Deputy Clerk of . . . complaints in his Post Office Box in the early morning

hours of Saturday, August 23, constituted a sufficient filing of these suits prior to midnight of the

following day, notwithstanding the fact that the clerk did not open the box until 8:30 a.m. on

Monday, August 25.”).

               Under this rule, we would consider Ross’s application for leave to appeal timely. The

package arrived at 9:05 a.m. on July 5, 2007—the morning of the last day of the appeals period—at

the address the Michigan Supreme Court designated for such papers. From that point on, Ross had

no control over when the package arrived in the clerk’s office, or when the clerk opened it and

stamped its contents as “filed.” To charge Ross with the clerk’s delay in filing his application would

be to hold him accountable for circumstances beyond his control. Federal courts sitting in equity do

not condone such a result. See Deloney v. Estelle, 

, 1062 (5th Cir. 1981) (“A rigid

application of [Federal Rule of Appellate Procedure 4(a)] would mandate that any appeal would be

dismissed. However, a rigid application under the facts of this case would be unjust.”).

               But the issue here is not whether we would have resolved Ross’s case differently,

were we the Michigan Supreme Court. Rather, we must decide whether Ross is entitled to equitable

tolling in federal court, based on the Michigan Supreme Court clerk’s refusal to treat his application

for leave to appeal as timely.



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No. 10-1454
Ross v. McKee, Warden

                This court has not addressed the precise question presented—whether a prisoner,

represented by counsel in state post-conviction proceedings, may qualify for equitable tolling based

on a state clerk’s filing delay. We have, however, dealt with an analogous situation. In White v.

Curtis, 42 F. App’x 698 (6th Cir. 2002), a Michigan prisoner delivered his application for leave to

appeal in the Michigan Supreme Court to prison officials on February 6, 1996, two days before his

fifty-six-day appeals period ended on February 8. 

The clerk did not receive the

application until February 9. 

not recognize the prisoner mailbox rule,

the Michigan Supreme Court dismissed the application as time-barred. White, 42 F. App’x at 700.

Had the Michigan court accepted the application in compliance with the federal prisoner mailbox

rule, the prisoner’s federal petition for writ of habeas corpus would have been timely. 

We held that equitable tolling should apply because of “the apparent justice in granting a state

appellant the equitable benefit of the federally-accepted ‘mailbox rule’ for purposes of tolling a

federal statute of limitations.” 

see also Burger v. Scott, 

(10th Cir. 2003)

(holding that AEDPA statute of limitations was tolled during four-month delay between date

petitioner delivered state habeas petition to prison officials and date petition was stamped as filed

in state court, even though Oklahoma did not apply prisoner mailbox rule).

                Similarly, we believe it is appropriate to apply equitable tolling and give Ross the

benefit of our “federally-accepted . . . [rule] for purposes of tolling a federal statute of limitations.”

White, 42 F. App’x at 700. We therefore hold that, because Ross’s application arrived timely at the

address the Michigan Supreme Court designated for court documents, the federal courts should treat

it as timely filed for the purposes of § 2244(d)’s limitations period. The statute of limitations should

                                                  - 11 -
No. 10-1454
Ross v. McKee, Warden

be tolled from May 9, 2007 to July 5, 2007, and the district court should proceed to the merits of

Ross’s petition for writ of habeas corpus.

                In so holding, we by no means dictate Michigan law to the Michigan courts. Rather,

we apply our equitable powers to prevent inequity. We recognize, of course, that “[i]n the absence

of a constitutional violation, the petitioner bears the risk in federal habeas for all attorney errors

made in the course of the representation,” Coleman v. Thompson, 

, 754 (1991), and that

Ross waited for nearly a full year after the Michigan Supreme Court denied his petition for leave to

appeal, before filing his federal habeas petition.2 But neither of these points changes the outcome.

The clerk’s delay, not attorney error, is the reason Ross’s petition was late, and but for the clerk’s

late acceptance of Ross’s filing, Ross’s federal habeas petition would have been timely, even though

he did not file it until June 2008.

                Nor does the Supreme Court’s decision in Artuz v. Bennett, 

(2000),

compel a contrary conclusion. In Artuz, the Court explained: “An application is ‘filed,’ as that term

is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for

placement into the official record.” 

The court below relied on this language, emphasizing

that the clerk did not accept Ross’s application until July 6, 2007, one day after the end of the

limitations period.

                Artuz, however, did not address acceptance directly. Rather, it involved “the question

whether an application for state postconviction relief containing claims that are procedurally barred


        2
         Although Ross attempted to explain this delay below, he presented no such explanation in
this court.

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No. 10-1454
Ross v. McKee, Warden

is ‘properly filed’ within the meaning of [§2244(d)(1)(A)].” 

. The case did use

the word “accepted,” and noted that “time limits upon . . . delivery, [and] the court and office in

which [an application] must be lodged” were relevant considerations in determining whether filing

was proper. 

. It was silent on the issue this case presents: the meaning of the

word “acceptance.”

                But even to the extent that Artuz is relevant here, it does not compel a different result.

Ross’s application for leave to appeal arrived at the Michigan Supreme Court’s designated mailing

address. There, a state employee accepted the package, by signing the certified mail receipt.

Because the Michigan Supreme Court held out a location other than its clerk’s office as a valid place

for filings, delivery to, and acceptance at, that location constituted filing within the meaning of Artuz.

                                                   IV

                The Michigan Supreme Court’s delay in filing Ross’s application for leave to appeal,

after Ross timely delivered his pleading to the court’s designated mailing address, should not prevent

him from presenting his petition for writ of habeas corpus to the federal district court. Accordingly,

we hold that equitable tolling of the AEDPA limitations period from May 9, 2007 to July 5, 2007

is appropriate. We AFFIRM the opinion of the district court, insofar as it determines that Ross’s

petition was untimely on statutory grounds. We REVERSE its decision to deny equitable tolling,

however, and REMAND for proceedings consistent with this opinion.




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