United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1294
                                   ___________

Mark Douglas Walker,                 *
                                     *
            Appellant,               *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Eastern District of Arkansas.
Larry Norris, Director,              *
Arkansas Department of Correction,   *
                                     *
            Appellee.                *
                                ___________

                             Submitted: October 11, 2005
                                Filed: January 31, 2006
                                 ___________

Before RILEY, HANSEN, and COLLOTON, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

      Mark Walker (Walker) filed an application for federal habeas corpus relief in
the United States District Court for the Eastern District of Arkansas pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254.
The district court1 dismissed the application as time barred under the AEDPA’s one-
year statute of limitations. This appeal followed. We affirm.

I.     BACKGROUND
       A jury convicted Walker of manslaughter, first degree battery, and leaving the
scene of an accident. The Arkansas Circuit Court of Benton County sentenced Walker
to 36 years’ imprisonment. Walker’s convictions were affirmed on direct appeal, and
the Arkansas Supreme Court denied his petition for review on September 9, 1999.

       Walker had sixty days from the date the Arkansas Supreme Court denied his
petition for review to file a petition for post-conviction relief under Arkansas Rule of
Criminal Procedure 37. Ark. R. Crim. P. 37.2(c). Rule 37 describes who may file a
petition and how a petition should be presented: “A petitioner in custody under
sentence of a circuit court claiming a right to be released, or to have a new trial, or to
have the original sentence modified . . . may file a verified petition in the court which
imposed the sentence, praying that the sentence be vacated or corrected.” Ark. R.
Crim. P. 37.1. Rule 37 also specifies requirements as to the content, format, and
length of the petition, and warns, “[p]etitions which are not in compliance with this
rule will not be filed without leave of the court.” Ark. R. Crim. P. 37.1(e).

       On November 8, 1999, a pro se petition bearing Walker’s name was filed in
Arkansas Circuit Court of Benton County.2 Walker’s signature appeared on the
“Petitioner, pro se” verification line; however, the notary verification lines were left
blank. The signature of Walker’s trial counsel, Chadd Mason (Mason), appeared on

      1
       The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas, adopting the Report and Recommendation of the
Honorable John Forester, United States Magistrate Judge for the Eastern District of
Arkansas.
      2
          A petition to correct sentence was filed the same day, but is not at issue in this
appeal.

                                             -2-
the “Respectfully submitted, ____, Petitioner, pro se” line. The petition asserted
claims for ineffective assistance of counsel, erroneous jury instructions, prosecutorial
misconduct, and improper admission of evidence. The petition also contained
requests for in forma pauperis status and appointment of counsel. Appointed counsel
filed an amended petition on June 23, 2000. The state moved to dismiss the petition
arguing, inter alia, the circuit court lacked jurisdiction because Walker failed to have
the original petition verified, and failed to file an amended petition within the sixty-
day time limit pursuant to Rule 37.

       The circuit court conducted an evidentiary hearing on the issue of verification,
and questioned Walker about the preparation of his pro se petition. Walker testified,
“I signed the back of the Rule 37 [petition] and also signed the part where it was
supposed to be notarized,” and sent the petition to Mason “to fill it all out and plus get
it notarized.” When asked about the notarization requirement, Walker said, “I told
[Mason] that from what I found in the law library pertaining to stuff like this it said
that in most cases [the petition] does need to be notarized and I told him what I found
and he said, well, no, it didn’t need to be notarized.” Walker also testified he could
have obtained a Rule 37 pro se petition at any time, and he knew there was a statute
of limitations on filing a Rule 37 petition.

       Mason testified he thought he still represented Walker when he agreed to file
the Rule 37 petition. Mason recognized a conflict of interest existed since Walker
asserted an ineffective assistance of counsel claim against Mason. Nonetheless,
Mason said he felt he had a duty to help Walker complete the petition. Mason
completed the petition based on Walker’s written instructions. When asked about
Walker’s unverified signature, Mason said he had no legal basis to have Walker’s
signature notarized since Walker had not signed the petition in Mason’s presence.
Mason explained the filing deadline was Monday, November 8, 1999, but he received
the materials from Walker shortly before or on the day the petition was due, leaving
no time to return the petition to Walker for notarization.

                                           -3-
       On May 10, 2001, the circuit court dismissed Walker’s petition with prejudice,
concluding it lacked jurisdiction because Walker had not filed a verified petition
within the Rule 37 deadline. The circuit court was dismayed at the behavior of Mason
and Walker, and remarked that such conduct “underscores the reasoning behind the
[Arkansas] Supreme Court’s apparent strict enforcement of the [Rule 37] verification
requirement.” The circuit court entered its judgment on June 13, 2001. On June 13,
2002, the Arkansas Supreme Court affirmed, reasoning Rule 37’s verification
requirement is of substantive importance to prevent perjury and its deadline
requirement is jurisdictional in nature. Walker v. State, No. CR 02-37, 

(Ark. June 13, 2002) (unpublished) (citing Carey v. State, 

,
689 (Ark. 1987), and Porter v. State, 

, 75 (Ark. 1999)). The Arkansas
Supreme Court concluded Walker’s first petition was invalid because it lacked
verification, and he did not file his second petition within the sixty-day time limit. 

10, 2003, Walker filed a petition for writ of habeas corpus in federal
court pursuant to 28 U.S.C. § 2254, alleging ineffective assistance of counsel on direct
appeal. The district court reasoned the Arkansas Supreme Court’s determination was
binding and, therefore, Walker’s Rule 37 petition was not properly filed. The district
court then found the statute did not toll during the pendency of Walker’s state post-
conviction relief proceedings. Adding ninety days to the date the Arkansas Supreme
Court denied review of Walker’s direct appeal, see Sup. Ct. R. 13.1, the district court
determined Walker’s state convictions became final on December 8, 1999. See
Nichols v. Bowersox, 

, 1072 (8th Cir. 1999) (en banc) (holding a state
court judgment becomes “final under § 2244(d)(1)(A) upon the expiration of his time
to file a petition for a writ of certiorari”). Under the AEDPA’s one-year statute of
limitations, Walker’s section 2254 filing deadline was December 8, 2000. See 28
U.S.C. § 2244(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.”). Because Walker filed his section 2254 petition on April 10, 2003, the district
court dismissed the petition as time barred.

                                           -4-
      On appeal, Walker argues Arkansas’s verification ruling did not bar federal
habeas review because the rule (1) was not firmly established at the time he filed his
Rule 37 petition, (2) has not been followed regularly or applied consistently, (3) does
not provide guidance as to what constitutes a properly verified petition, and (4) does
not provide reasonable notice that notarization of the petition is jurisdictionally
required. Alternatively, Walker argues he is entitled to equitable tolling of the statute.
Walker submits sixteen Arkansas state court cases where the court reached the merits
of unverified petitions as proof the rule is not consistently applied.

II.    ANALYSIS
       This court has “jurisdiction to review a district court’s ruling on ‘preliminary
procedural issues, such as [a] limitations question’ [and] review[s] the district court’s
interpretation of the one-year AEDPA limitation provision de novo.” Williams v.
Bruton, 

, 982 (8th Cir. 2002) (quoting 

n.2).
The AEDPA establishes a one-year statute of limitations for filing federal habeas
corpus petitions which runs from “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.” 28
U.S.C. § 2244(d)(1)(A). The statute of limitations is tolled, however, while “a
properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending.” 

        A.      “Properly Filed” Under the AEDPA
        The issue on appeal is whether Walker’s state post-conviction relief petition,
which was dismissed by the Arkansas Supreme Court as invalid, is nonetheless
properly filed for purposes of the AEDPA. Based on Supreme Court precedent, we
find it is not.

      In Artuz v. Bennett, 

, 5, 8 (2000), the Supreme Court defined a
“properly filed” state post-conviction relief petition under section 2244(d)(2):



                                           -5-
             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. And an application is “properly filed”
      when its delivery and acceptance are in compliance with the applicable
      laws and rules governing filings. These usually prescribe, for example,
      the form of the document, the time limits upon its delivery, the court and
      office in which it must be lodged, and the requisite filing fee.

(citations and footnote omitted).

       After Artuz, the Supreme Court in Carey v. Saffold, 

, 217 (2002),
defined a “pending” state post-conviction relief petition under section 2244(d)(2).
The Court determined a petition is pending during “the time between a lower state
court’s decision and the filing of a notice of appeal to a higher state court.” 

intimated, if the state court ultimately determines the petition did not comply
with the state’s timeliness requirements, the petition would not have been pending
during that period within the meaning of section 2244(d)(2)’s tolling provision. 

Thus, the Court concluded once the state’s highest court determines the
petition is untimely, “that would be the end of the matter, regardless of whether it also
addressed the merits of the claim, or whether its timeliness ruling was entangled with
the merits.” 

omitted).

       During the pendency of Walker’s appeal, the Supreme Court decided Pace v.
DiGuglielmo, 544 U.S. ___,

, 1810 (2005), addressing “whether a state
postconviction petition rejected by the state court as untimely nonetheless is ‘properly
filed’ within the meaning of § 2244(d)(2).” 

holdings in Artuz
and Saffold, the Court announced, “What we intimated in Saffold we now hold: When
a postconviction petition is untimely under state law, ‘that [is] the end of the matter’
for purposes of § 2244(d)(2).” 

(quoting 

). The
Court held “a petition filed after a time limit, and which does not fit within any
exceptions to that limit, is no more ‘properly filed’ than a petition filed after a time
limit that permits no exception. The purpose of AEDPA’s statute of limitations

                                          -6-
confirms this commonsense reading.” 

final note, the Court addressed the
apparent unfairness to petitioners who spend years exhausting state remedies, only to
discover their federal habeas relief is time barred because their state petition was never
“properly filed.” 

      A prisoner seeking state postconviction relief might avoid this
      predicament, however, by filing a “protective” petition in federal court
      and asking the federal court to stay and abey the federal habeas
      proceedings until state remedies are exhausted. A petitioner’s reasonable
      confusion about whether a state filing would be timely will ordinarily
      constitute “good cause” for him to file in federal court.

Id.; see Rhines v. Weber, 544 U.S. ___, 

, 1535 (2005) (“Because
granting a stay effectively excuses a petitioner’s failure to present his claims first to
the state courts, stay and abeyance is only appropriate when the district court
determines there was good cause for the petitioner’s failure to exhaust his claims first
in state court.”).

      Despite this adverse authority, Walker argues we should consider his petition
properly filed for purposes of section 2244(d)(2) because Arkansas’s verification rule
was not firmly established at the time he filed his petition. Walker’s assertion is
foreclosed by Pace.

       In Pace, at the time Pace filed his petition, the state recently amended its post-
conviction relief statute, and its application was unclear. Pace v. Vaughn, 151 F.
Supp. 2d 586, 588 (E.D. Pa. 2001), rev’d, 71 Fed. Appx. 127 (3d Cir. 2003)
(unpublished), aff’d sub nom. Pace v. DiGuglielmo, 

. The trial court
ruled on the merits of the petition, and Pace’s appeal was pending when the state
appellate court interpreted the amended statute. Based on the interpretation, the
appellate court dismissed Pace’s petition as untimely. 

When the
petitioner filed for federal habeas relief, the district court reasoned the state petition
was properly filed for purposes of the AEDPA’s tolling provision because the

                                           -7-
petitioner complied with the filing requirements as they existed at the time. The
district court also found “extraordinary circumstances” allowed for equitable tolling.

95. On appeal, the Third Circuit reversed, and the Supreme Court
affirmed, concluding “time limits, no matter their form, are ‘filing’ conditions.
Because the state court rejected petitioner’s [state post-conviction relief] petition as
untimely, it was not ‘properly filed,’ and he is not entitled to statutory tolling under
§ 2244(d)(2).” 

, 1814.

         Nor are we persuaded by the sixteen cases cited by Walker where Arkansas
courts reached the merits of unverified petitions, by which Walker argues the
verification rule was not firmly established or consistently applied. The Supreme
Court rejected a similar theory adopted by the Ninth Circuit in Saffold. In Saffold, the
district court dismissed Saffold’s federal habeas application, finding Saffold did not
timely file his petition for review with the California Supreme Court, and therefore,
it was not pending for purposes of tolling the AEDPA’s one-year statute of
limitations. 

. On appeal, the Ninth Circuit reversed,
reasoning the California Supreme Court must have considered the petition timely filed
because it denied the petition “on the merits.” 

225. The Supreme Court
rejected this conclusion finding the California Supreme Court’s one sentence denial,
“on the merits and for lack of diligence,” was not conclusive on the issue of
timeliness. 

The Court suggested there may be a variety of reasons a
state court addresses the merits of a petition it believes is untimely, “for instance,
where the merits present no difficult issue; where the court wants to give a reviewing
court alternative grounds for decision; or where the court wishes to show a prisoner
. . . that it was not merely a procedural technicality that precluded him from obtaining
relief.” 

v. Chavis, No. 04-721, 

, at *7 (U.S. Jan. 10,
2006), the Supreme Court recently reiterated its holding in Saffold, adding, “[i]f the
appearance of the words ‘on the merits’ does not automatically warrant a holding that
the filing was timely, the absence of those words could not automatically warrant a
holding that the filing was timely.”

                                          -8-
       We similarly reject Walker’s conclusion Arkansas’s verification rule is invalid
simply because the state court sometimes dismisses unverified petitions on the merits,
rather than on the procedural timeliness default.3 Furthermore, Walker does not argue
he relied on (or even knew about) any of these sixteen cases when Mason filed the
unverified petition. To the contrary, as demonstrated by Walker’s testimony, he
believed the petition required verification.

       The circuit court afforded ample consideration of Walker’s petition. The circuit
court conducted several hearings, allowed supplemental briefing, and heard testimony,
including Walker’s own testimony, before determining Walker’s original petition was
invalid and his amended petition was untimely. Because the Arkansas Supreme Court
affirmed and found Walker’s petition invalid, “that is the end of the matter.” See

.

       We hold Walker did not properly file his Rule 37 petition within the meaning
of section 2244(d)(2), and accordingly, Walker’s Rule 37 petition did not toll the
AEDPA’s one-year statute of limitations. Walker’s state court judgment became final
on December 8, 1999, and Walker had until December 8, 2000, to file an application
for federal habeas corpus relief. Walker filed his application on April 10, 2003, more
than 850 days late. The district court correctly found Walker’s application was time
barred under section 2244(d)(1).

      B.      Equitable Tolling
      We now turn to Walker’s argument he is entitled to equitable tolling during the
time his petition was pending in Arkansas state courts. “Generally, a litigant seeking
equitable tolling bears the burden of establishing two elements: (1) that he has been


      3
        Walker submits sixteen Arkansas state cases as demonstrative examples of the
purported inconsistent application of the verification rule. The cases do not warrant
further discussion since they present no other legal significance.

                                         -9-
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way.” 

see also Kreutzer v. Bowersox, 

, 463 (8th Cir.
2000) (“Equitable tolling is proper only when extraordinary circumstance beyond a
prisoner’s control make it impossible to file a petition on time.”).

       Walker asserts his “counsel was never on reasonable notice that a notarized
petition was jurisdictionally required” and if this court determines his petition was not
“properly filed,” equity demands the statute be tolled during the pendency of his state
post-conviction proceeding. We disagree.

       First, Walker intended to file his petition pro se, he used a preprinted Rule 37
pro se petition, he requested appointment of counsel, and he requested to proceed in
forma pauperis. Walker’s Rule 37 hearing testimony demonstrates he knew the
petition required notarization. Walker testified: (1) “I signed the back of the Rule 37
[petition] and also signed the part where it was supposed to be notarized”; (2) he
thought Mason was going to have the petition notarized; and (3) from his research, he
thought the form needed notarization. Second, Walker testified the petition was
available to him any time, yet he waited until the weekend before the filing deadline
to send the information to Mason. Third, even assuming arguendo Mason acted as
Walker’s attorney, Mason’s lack of knowledge the verification requirement was
jurisdictional is beside the point. Failure to comply with the state’s procedural rules
will bar the petition as not “properly filed,” regardless whether it is labeled a
jurisdictional requirement. 

(reasoning a petition must comply
with all procedural rules for filing, even mechanical ones enforced by clerks); 

(holding a petition is properly filed “when its delivery and acceptance
are in compliance with the applicable laws and rules governing filings”). Equitable
tolling would not be justified even if we assumed Mason’s error caused the lack of
verification, because “[i]neffective assistance of counsel generally does not warrant
equitable tolling.” Beery v. Ault, 

, 950 (8th Cir. 2002). The pro se
petition filed on November 8, 1999, was a “fill-in-the-blanks” form, designed for

                                          -10-
prisoners to complete without assistance of counsel. Walker could have obtained the
form earlier, but inexplicably did not. Walker’s lack of diligence, not extraordinary
circumstances, caused the rushed filing. Equitable tolling is not warranted.

III.  CONCLUSION
      For the reasons stated, we affirm the district court’s dismissal of Walker’s
section 2254 application for writ of habeas corpus.
                       ______________________________




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