HELENE N. WHITE, Circuit Judge.
Petitioner-Appellant Steven Board appeals the district-court order dismissing his petition for a writ of habeas corpus, 28 U.S.C. § 2254, as untimely under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d). This court granted a certificate of appealability on the issue whether Board's unsuccessful motion for leave to file a delayed appeal under Ohio Appellate Rule 5(A) tolled the statute of limitations under § 2244(d)(2). We hold that it did, and therefore
On September 24, 2010, Board pleaded guilty to one count of drug trafficking with forfeiture specifications, a felony in the first degree, pursuant to a plea agreement. (See generally Plea Tr., PID 167-77); see also Ohio Rev.Code § 2925.03(A)(2) (2008); id. § (C)(4)(f). The charge carried a mandatory prison term of between three and ten years, see Ohio Rev.Code § 2929.14(A)(1) (2009), and the plea agreement recommended a seven-year sentence. (See Plea Tr., PID 168-70.) On November 4, 2010, the trial court sentenced Board to seven years in prison. (Ohio Trial Ct. Journal Entry, PID 82; see also Sentencing Tr., PID 178-85.) Board did not timely appeal his sentence. However, on June 29, 2011, Board filed a pro se notice of appeal and motion for leave to file a delayed appeal under Ohio Appellate Rule 5(A). (Notice of Appeal & 5(A) Mot., PID 83-107.) Board asserted that he failed to timely appeal his sentence because both the trial court and trial counsel failed to inform him of his appellate rights. (Board Mem. in Supp. of 5(A) Mot., PID 102-06.) On July 27, 2011, the Ohio Court of Appeals summarily denied Board's motion. (Ohio App.Ct. Journal Entry, PID 132.) Board appealed the denial to the Ohio Supreme Court on September 12, 2011, (Notice of Appeal, PID 135-36; see also Board Mem. in Supp. of 5(A) Appeal, PID 137-52), and the court declined to hear the case on December 21, 2011, dismissing "the appeal as not involving any substantial constitutional question," (Ohio S.Ct. Entry, PID 155).
On March 15, 2012, Board filed the instant § 2254 petition, (Pet., PID 3-7), raising
A magistrate judge issued a Report and Recommendation finding the petition time-barred. (Report & Rec., PID 199-212.) The magistrate judge determined that 1) Board's lack of knowledge of his appellate rights did not delay the start of the limitations period, and 2) Board was not entitled to equitable tolling.
We review de novo a district court's dismissal of a habeas petition as time-barred under 28 U.S.C. § 2244. Vroman v. Brigano, 346 F.3d 598, 601 (6th Cir. 2003). Board filed his petition after AEDPA became effective; therefore, the Act's one-year statute of limitations applies. See Searcy v. Carter, 246 F.3d 515, 517 (6th Cir.2001). AEDPA § 2244(d)(1) provides:
28 U.S.C. § 2244(d)(1).
Under § 2244(d)(2), the statute of limitations is 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." Id. § 2244(d)(2).
Although a motion for leave to file a delayed appeal under Rule 5(A) requests an extension of time in which to file a direct appeal, it is considered part of the
Board's sentence became final on December 6, 2010, when the period for seeking direct review of his sentence expired. See 28 U.S.C. § 2244(d)(1)(A); Ohio App. R. 4(A).
Rule 5(A) provides an exception to the usual thirty-day time limit for filing direct appeals in certain types of cases, including criminal proceedings. Ohio App. R. 5(A)(1); see also Stone v. Moore, 644 F.3d 342, 346 (6th Cir.2011). Rule 5(A) prescribes the following requirements for filing a motion thereunder:
Ohio App. R. 5(A)(2). There is no time limit for filing motions under Rule 5(A). See id.; see also Searcy, 246 F.3d at 519 ("Leave to file a late notice of appeal can be sought at any time, even many years after conviction.") (citation omitted).
Board argues that because he filed his motion in accordance with the terms of Rule 5(A) at a time when the statute of limitations had still not run, the motion tolled the limitations period even though the Ohio Court of Appeals ultimately denied relief. (Board Br. 7-10.) This Circuit has repeatedly found that although an unsuccessful motion for leave to file a delayed appeal cannot restart the AEDPA limitations period, it may toll the limitations period while it is pending. See Searcy, 246 F.3d at 519 ("We . . . hold, as did the district court, that although the filing of the motion for a delayed appeal may have tolled the running of the one-year statute, it did not cause the statute to begin running anew when the state court denied the motion."); see also Anderson, 562 Fed.Appx. at 430 (finding that petitioner's request to file a delayed appeal "may toll the statute of limitations, but does not restart it"); Applegarth, 377 Fed.Appx. at 450 ("The Rule 5(A) motion tolled the clock until at least January 26, 2006, when the court of appeals denied the motion."); DiCenzi, 452 F.3d at 468 ("[A] motion for delayed appeal . . . if properly filed, . . . toll[ed] the statute during the time the motion was pending.").
Respondent concedes that Searcy and subsequent cases have allowed for tolling under these circumstances, but argues that Searcy's statement is dicta, and later Supreme Court cases, Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), and Allen v. Siebert, 552 U.S. 3, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007) (per curiam), compel a different result. (See Resp't Br. 5-8, 13-23.) We disagree.
In Pace, the Supreme Court considered "whether the existence of certain exceptions to a timely filing requirement can prevent a late application from being considered improperly filed," 544 U.S. at 413, 125 S.Ct. 1807 (citation and internal quotation marks omitted), a question the Court had reserved in Artuz v. Bennett, 531 U.S. at 8 n. 2, 121 S.Ct. 361, which focused on whether time limits for filing post-conviction petitions are "conditions to filing" that would render an untimely petition not "properly filed." The Pace Court held that such time limits were a condition of filing, and that "a petition filed after a time
Respondent argues that because Rule 5(A) operates as an exception to the time limit for filing a direct appeal provided in Ohio Appellate Rule 4(A), a court's denial of a Rule 5(A) motion renders it untimely, and therefore not "properly filed." Thus, Respondent contends, an unsuccessful Rule 5(A) motion cannot toll the statute of limitations under § 2244(d)(2). (Resp't Br. 19-23.) However, unlike in Pace and Allen, there is no time limit for filing a motion for leave to file a delayed appeal under Rule 5(A); in contrast to these cases, Board's Rule 5(A) motion was timely under state law. See Ohio App. R. 5(A); see also Searcy, 246 F.3d at 519. Moreover, although Rule 5(A) provides an exception to the time limit established in Rule 4(A), it is a vehicle for collateral relief through which a movant can seek to extend the time to file a direct appeal. Therefore, to the extent Rule 5(A) contains an exception, that exception is to the time limit for filing a direct appeal, not the Rule 5(A) motion itself. In both Pace and Allen, the time limits and exceptions at issue governed the filing of applications for post-conviction relief, and the petitions in those cases were untimely under the post-conviction filing requirements. See Allen, 552 U.S. at 4, 6, 128 S.Ct. 2; Pace, 544 U.S. at 410-11, 411 n. 1, 125 S.Ct. 1807. This is not the case here.
Respondent relies on Stone v. Moore, 644 F.3d at 347, to argue that "[f]ederal courts routinely consider a state court's summary denial of a Rule 5(A) . . . motion for leave to file a delayed appeal . . . as a sufficient clear and express statement that the pleading was untimely filed." (Resp't Br. 28-29.) At issue in Stone, however, was whether the state court of appeals' denial of the petitioner's Rule 5(A) motion could serve as a procedural bar to consideration of the petitioner's claims on federal habeas review. See Stone, 644 F.3d at 345-46. This court noted that "[g]enerally under Ohio law, to succeed on a Rule 5(A) motion for delayed appeal, a defendant must demonstrate cause for both the delay itself, and the length of delay." Id. at 346 (citations omitted). Although the court described Stone's failure to adequately account for the six-year delay in filing his Rule 5(A) motion as an indication that his motion was untimely, see id. at 348, it is clear that this delay merely prevented Stone from obtaining relief under Rule 5(A), with the result that the issue raised was procedurally defaulted; nowhere does the court imply that the delay rendered Stone's 5(A) motion improperly filed, since that provision has no time limits. Thus, Stone does not shed light on the tolling issue before us.
To the extent Respondent contends that this court should construe the requirement
Relying on DiCenzi v. Rose, 452 F.3d at 469, Respondent further argues that "this Court has already acknowledged that the state's denial of a motion for leave to file a delayed appeal in the Supreme Court of Ohio would preclude AEDPA tolling," and therefore this court should similarly treat motions filed under Rule 5(A). (Resp't Br. 22-23). However, DiCenzi does not so hold. To the contrary, the court observed that the petitioner's motion for leave to file a delayed appeal to the Ohio Supreme Court tolled AEDPA's statute of limitations while the Ohio court considered the motion, DiCenzi, 452 F.3d at 468-69, and held that once the Ohio Supreme Court granted the petitioner's motion, the limitations period remained tolled although the court ultimately dismissed the appeal, id. at 469. The court did not hold that the limitations period would not have been tolled while the motion was pending had the Ohio Supreme Court denied the petitioner's motion for leave to file a delayed appeal.
Respondent relies on DiCenzi's citation of Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir.2004), and its description of the holding of Bonilla as "distinguishing between the denial of a motion to file a delayed appeal in the Ohio Supreme Court, a state procedural decision that would preclude tolling, and the granting of the motion to file the appeal but subsequent dismissal on the jurisdictional merits of the case, a decision on the merits that would not preclude tolling." (See Resp't Br. 23 (citing DiCenzi, 452 F.3d at 469).) This statement does appear to support Respondent's position. However, the quoted statement conflicts with the DiCenzi court's earlier observation that the motion for delayed leave tolled the running of the AEDPA statute of limitations. More importantly, the statement finds no support in Bonilla itself. Bonilla did not address tolling or timeliness; rather, it held that
Respondent further argues that consistency requires us to treat Rule 5(A) motions similarly to motions for post-conviction relief under Ohio Revised Code § 2953.21 and applications to reopen an appeal under Ohio Appellate Rule 26(B), and that because this court does not treat untimely motions for relief under those statutes as "properly filed" for purposes of tolling under § 2244(d)(2), we similarly should not find that untimely Rule 5(A) motions toll the statute of limitations. (Resp't Br. 23-26.) However, the word "untimely" is key; motions for post-conviction relief under Ohio Revised Code § 2953.21 and applications to reopen direct appeal under Rule 26(B) both have time limits to filing. See Ohio Rev.Code § 2953.21(A)(2); Ohio App. R. 26(B)(1). Therefore, it is possible for those motions or applications to be denied as untimely. In contrast, Rule 5(A) motions can be filed at any time. Thus, contrary to Respondent's argument, allowing unsuccessful Rule 5(A) motions to toll AEDPA's statute of limitations under § 2244(d)(2) creates no inconsistency.
Finally, we note that although Rule 5(A) has no time limit, § 2244(d) does. The law is clear that an unsuccessful Rule 5(A) motion filed after the expiration of AEDPA's one-year limitations period does not restart the expired statutory period. However, Respondent cites no case holding that the one-year limitations period is not tolled during the pendency of a Rule 5(A) motion filed within the one-year period.
In sum, Board filed his motion in compliance with the terms of Rule 5(A). It was therefore "properly filed," although ultimately unsuccessful. The motion tolled the statute of limitations under § 2244(d)(2), rendering his petition for federal habeas relief timely.
For the foregoing reasons, we