Douglas Alan FRASCH, Petitioner-Appellant, v. James PEGUESE, Warden; J. Joseph Curran, Jr., The Attorney General of the State of Maryland, Respondents-Appellees, 414 F.3d 518

Reversed and remanded by published opinion. Judge MICHAEL wrote the majority opinion, in which Judge WILSON concurred. Judge NIEMEYER wrote a dissenting opinion. MICHAEL, Circuit Judge. . This is an appeal from the dismissal of a federal habeas corpus petition as untimely under a limitations provision in the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1)(A), which requires that a petition be filed within one year of the conclusion of direct review or the expiration of the time for seeking direct review.

The petitioner here (a Maryland prisoner) obtained, in a collateral proceeding, an order allowing him to file a belated application for leave to appeal his conviction and sentence. The controlling issue in this case is whether the state appellate court’s consideration and denial of his appeal application in a subsequent proceeding was direct review. We conclude that it was. As a result, the statute of limitations began to run when the time expired for seeking further direct review (through a writ of certiorari) from the United States Supreme Court.

Because the federal petition was filed within one year of the expiration of the time for seeking direct review, it is not barred by AEDPA’s statute of limitations. Accordingly, we reverse and remand. I. In October 1989 Douglas A. Frasch pled guilty to first degree sexual assault in the Circuit Court for Charles County, Maryland (the Maryland Circuit Court). On December 14, 1989, he was sentenced to life in prison. His lawyer failed to file an application for leave to appeal, which would have been the route for seeking-direct review of the conviction and sentence.

On December 13, 1999, almost ten years after he was sentenced, Frasch filed a petition for postconvietion review under the Maryland Uniform Postconviction Procedure Act (the UPCA), Md.Code Ann., Crim. Proc. 7-101 et seq., in the Maryland Circuit Court.

Frasch asserted, among other grounds, that he had received ineffective assistance of counsel because his lawyer failed to file an application for leave to appeal his conviction and sentence to the Court of Special Appeals of Maryland. (Frasch’s time for filing an application for leave to appeal had expired thirty days after he was sentenced.) The state’s attorney conceded that Frasch’s Sixth Amendment rights had been violated because Frasch had not been informed of his right to file an application for leave to appeal by either his lawyer or the sentencing court.

As a result, on October 3, 2000, the Maryland Circuit Court entered an order granting Frasch the right to file, within thirty days, a belated application for leave to appeal. The court’s order did not address other issues raised by Frasch in his petition, but the order was entered without prejudice to his ability to file an additional petition on the unaddressed issues. On October 30, 2000, Frasch filed his application for leave to appeal his conviction and sentence in the Court of Special Appeals of Maryland. That court “read[,] considered, [and] denied” his application on July 9, 2001. J.A. 50.

Because Frasch’s application for leave to appeal was denied, he was not entitled to file a petition for a writ of certiorari in the Court of Appeals of Maryland. See Md. Code Ann., Cts. & Jud. Proc. § 12-202(4). On September 6, 2001, Frasch filed a second petition for postconviction review under the UPCA in the Maryland Circuit Court. In this petition Frasch reasserted the issues from his first petition that had not been addressed in the October 2000 order allowing him to file a belated application for leave to appeal.

After his second petition was denied by the Maryland Circuit Court, the Court of Special Appeals denied his application for leave to appeal on December 10, 2002, thereby ending his state postconviction review. Frasch came to federal court on August 22, 2003, when he filed a petition for a writ of habeas corpus in the District of Maryland. The State of Maryland moved to dismiss the petition on the grounds that, it was not filed within the one-year statute of limitations prescribed by AEDPA. See 28 U.S.C. § 2244(d)(1)(A).

Specifically, Maryland argued that Frasch’s conviction became final on January 15, 1990, when the statutory deadline for filing an application for leave to appeal expired. Because his conviction became final prior to April 24, 1996, AEDPA’s effective date, Maryland argued that the statute of limitations for filing a federal habeas petition expired one year later, on April 24, 1997. The district court agreed with the state and dismissed Frasch’s petition. Frasch now appeals and we review de novo the district, court’s application of 2244(d)(1)(A). See Crawley v. Catoe, 257 F.3d 395, 397-98 (4th Cir.2001); II; A.

AEDPA provides that “[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.” 28 U.S.C. § 2244(d). This one-year period begins running “from the latest of’ several potential starting dates. See id. 2244(d)(l)(A)-(D). For our purposes, the relevant starting date is “the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A).

Simply put, “the one-year limitation period begins running when direct review of the state conviction is completed or when the time for seeking direct review has expired.” Hill v. Braxton, 277 F.3d 701, 704 (4th Cir.2002). As we will explain, Frasch’s federal habeas petition was timely under a straightforward application of § 2244(d)(1)(A). A Maryland defendant like Frasch who pleads guilty is not entitled to an appeal as a matter of right.

Such a defendant may, however, seek direct review of his conviction and sentence by filing, within thirty days of judgment, an application for leave to appeal to the Court of Special Appeals of Maryland. See Md.Code. Ann., Cts. & Jud. Proc. § 12-302(e); Md. R. 8-204(b)(1); MeElroy v. State, 329 Md. 136, 617 A.2d 1068, 1073 (1993) (characterizing a defendant’s application for leave to appeal after a guilty plea as “direct review”). If the Court of Special Appeals denies the defendant leave to appeal, he is not permitted to seek review in the Court .of Appeals, Maryland’s highest court. See Md.Code.

Ann., Cts. & Jud. Proc. § 12-202(4). The defendant’s only option for seeking further direct review is to petition, within the allowed time of ninety days, for a writ of certiorari from the United States Supreme Court. See 28, U.S.C. § 1257 (“Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the- Supreme Court by writ of certiora-ri... .”); Sup.Ct. R. 13(1).

In the event the defendant does not file a petition for a writ of certiorari, “the time for seeking [direct] review” expires on- the ninetieth day after the Court of Special Appeals denies the application for leave to appeal. See 28 U,S.C. § 2244(d)(1)(A); Harris v. Hutchinson, 209 F.3d 325, 328 n. 1 (4th Cir.2000). This is the day (or date) when the statute of limitations for filing a federal habeas petition begins to run.

On October 3, 2000, the Maryland Circuit Court granted Frasch a new thirty-day deadline for filing an application for leave to appéal his conviction and sentence to the Maryland Court of Special Appeals. Frasch filed a timely application for leave to appeal on October 30, 2000, and the Court of Special Appeals completed its direct review of his conviction and sentence on July 9, 2001, when it issued a decision stating that it had “read[,] considered, [and] denied” his application. J.A. 50.

Frasch did not file a petition for a writ of certiorari with the United States Supreme Court, and thus his time -for seeking further direct review expired ninety days later on October 8, 2001. Because Frasch was seeking state collateral review on October 8, 2001, AEDPA’s one-year statute of limitations was tolled until December 10, 2002, the date on which state collateral review ended. See 28 U.S.C. 2244(d)(2) (providing that the statute of limitations is tolled while a defendant pursues state collateral review). Thus, his federal habeas petition was timely when it was filed on August 22, 2003. B.

To get around this straightforward application of 2244(d)(1)(A), Maryland focuses on the fact that Frasch did not file his application for leave to appeal within the original deadline prescribed by state rule, that is, he did not file it within thirty days of sentence (or judgment). See Md. R. 8-204(b)(1). Frasch failed to meet this deadline because neither his lawyer nor the sentencing -court informed him of his appeal rights. Nearly ten years passed, and Frasch initiated a collateral proceeding to obtain the right to file his application beyond the original deadline.

Maryland claims that because Frasch gained the right to file a belated application through a collateral proceeding, the Court of Special Appeals’s consideration of his application constituted collateral, not direct, review. Because there has been no direct review in Frasch’s case, according to Maryland, his time for seeking direct review expired for purposes of § 2244(d)(1)(

A) when the original deadline for filing an application for leave to appeal expired on January 15, 1990. Thus, Maryland says that Frasch’s time for filing a federal habeas petition expired on April 24, 1997, at the end of AEDPA’s one-year grace period. We disagree. To determine what constitutes “direct review” for purposes of 2244(d)(1)(A), we look to state (Maryland) law. See Bridges v. Johnson, 284 F.3d 1201, 1202 (11th Cir.2002). The Maryland Court of Special Appeals’s consideration of a defendant’s timely application for leave to appeal constitutes direct review. See McElroy, 617 A.2d at 1073.

Yet Maryland asserts that the court’s consideration of Frasch’s application was not direct review. Maryland argues that because Frasch used a collateral review proceeding to obtain the right to file his application for leave to appeal under a new deadline, the proceeding remained collateral when he filed and pursued the actual application. Maryland’s argument appears to be based on Salinas v.

Dretke, 354 F.3d 425, 431 (5th Cir.2004), an opinion in which the Fifth Circuit held that a state court’s consideration of a belated appeal did not constitute direct review because the defendant had obtained the right to file the appeal through state ha-beas (collateral) proceedings. We reject the Salinas approach because it ignores that two separate proceedings are involved. Here, the nature of the review conducted by the Maryland courts was different in each proceeding, and the nature of the review is the key to determining whether it was collateral or direct. See Orange v.

Calbone, 318 F.3d 1167, 1171 (10th Cir.2003) (concluding that “direct review” occurred when Oklahoma state prisoner was granted a belated appeal in which he was required to follow the procedural rules for a direct appeal, and the state appellate court “review[ed] the issues raised ... on the merits without the typical res judicata/procedural bar analysis - normally employed in a case involving post-conviction review”). To obtain the right to file a belated application for leave to appeal, Frasch initiated a collateral proceeding under state law. See Md.Code Ann., Crim. Proc. 7-102(a).

It is undisputed that the Maryland Circuit Court’s consideration of Frasch’s request to file an application outside of the statutory deadline constituted collateral review because the proceeding was initiated under, and subject to the restrictions of, the UPCA.

Under the UPCA a petitioner may assert only four types of claims: that “(1) the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of the State; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the maximum allowed by law; or (4) the sentence is otherwise subject to collateral attack on a ground of alleged error that would otherwise be available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy.” Id. § 7-102(a)(l)-(4).

In sum, a claim under the UPCA “does not constitute a part of the original criminal cause, but is an independent and collateral civil inquiry into the validity of the conviction and sentence.” Md. State Bar Ass’n v. Kerr, 272 Md. 687, 326 A.2d 180, 181 (1974); see also Mosley v. State, 378 Md. 548, 836 A.2d 678, 685 (2003) (noting that collateral review under the UPCA “is not an appeal of the judgment! but] rather[] .... is a collateral attack .designed to address alleged constitutional, jurisdictional, or other fundamental violations that occurred at trial”).

After Frasch’s collateral proceeding ended with the order granting him the right to file a belated application for leave to appeal, he was no longer proceeding under the UPCA. Indeed, he was “in the same procedural posture as if he had timely pursued a direct appeal.” Orange, 318 F.3d at 1171. Thus, when Frasch filed his application for leave to appeal, he was not limited to asserting only the four types of claims allowed under the UPCA. See Md. Code Ann., Crim. Proc. § 7-102. Frasch was seeking direct review, and the Court of Special Appeals’s consideration of his application constituted direct review.

When the Court of Special Appeals considers a timely application for leave to appeal, it decides whether to “(1) deny the application; (2) grant the application and affirm the judgment of the court; (3) grant the application and reverse the judgment of the lower court; (4) grant the application and remand the judgment to the lower court with directions to that court; or (5) grant the application and order further proceedings in the Court of Special Appeals.” Md. R. 8 — 204(f)(1)—(5). The decision rendered by- the Court of Special Appeals is part of the direct review.

As Maryland acknowledged at oral argument, Frasch was able to assert in his belated (and authorized) application in 2000 all of the claims he could have asserted in an application filed by the original deadline in 1989. That is the case because Frasch is “a defendant [who was] denied, through no fault of his own, his right to an appeal which he desire[d] and to which he [was] entitled.” Garrison v. State, 350 Md. 128, 711 A.2d 170, 175 (1998) (emphasis omitted). Such a defendant is granted a belated appeal “to [ejnsure that [he] obtain[s] as full a l-eview as if his appeal had been properly pursued.” Wilson v.

State, 284 Md. 664, 399 A.2d 256, 263 (1979). As a result, when the Court of Special Appeals of Maryland “read and considered” Frasch’s application for leave to appeal, the court had the same decision options it would have had if Frasch had filed by the original deadline. See Md. R. 8 — 204(f)(1)—(5); J.A. 50. Frasch’s application for leave to appeal was therefore treated in every respect as a timely one, which compels the conclusion that the Court of Special Appeals engaged in direct review. C.

The dissent argues that ’the Court of Special Appeals of Maryland’s consideration of Frasch’s belated application for leave to appeal was collateral review, not direct review (or part of the “direct review process,” post at 525). First, the dissent asserts that it was not direct review because Frasch resorted to posteonviction (collateral) proceedings to obtain the right to file the application. See post at 526.

The problem with this argument, as we have already explained, is that it ignores that (1) the proceeding in which Frasch obtained the right to file his belated application was distinct from the proceeding in which he filed the application and (2) the nature of review was different in each proceeding. See supra at 522.

Second, the dissent asserts that the Court of Special Appeals’s consideration of Frasch’s belated application for leave to appeal was not direct review because Frasch was riot in the same procedural posture under the UPCA after the court considered his application as he would have been if he had filed a timely application.

Frasch was in a different procedural posture, the dissent asserts, because a prisoner is entitled to file only one petition under the UPCA, and a prisoner like Frasch who uses the UPCA to obtain a belated application for leave to appeal his conviction and sentence must include any other postconviction claims in his one petition. See post at 527. The first problem with this argument is that Frasch’s procedural posture under the UPCA after the Court of Special Appeals considered his application for leave to appeal has nothing to do with whether the court’s consideration constituted direct review.

The nature of review engaged in by the Court of Special Appeals is the key to determining whether the review was direct or collateral, and it is Frasch’s procedural posture in that court after he was allowed to file the application that is a factor in determining the nature of review. As noted above, once Frasch filed his belated application, he was in the same procedural posture in the Court of Special Appeals as one who timely pursues an application for leave to appeal. See supra at 523.

Moreover, the dissent is incorrect as a factual matter in contending that Frasch ended up in a different procedural posture under the UPCA after pursuing his application for leave to appeal. Frasch asserted a number of claims in his initial post-conviction petition, including the claim that he was entitled to file a belated application for leave to appeal his conviction and sentence.

The Maryland Circuit Court’s order awarding Frasch the right to file a belated application did not address the other claims, but the order was entered without prejudice to his ability to file an additional petition “on those [claims].” J.A. 47. After his application for leave to appeal was rejected by the Court of Special Appeals, Frasch did in fact file an additional petition in the Maryland Circuit Court reasserting the unresolved claims raised in his first petition.

Thus, Frasch, like a Maryland prisoner who files a timely application for leave to appeal, had one chance to assert all of his postconviction claims under the UPCA. He did so in his initial petition, and all of his claims were eventually considered by the Maryland Circuit Court over the course of two proceedings, which is an accepted practice for resolving postconviction claims in Maryland. See Dixon v.

State, 84 Md.App. 347, 579 A.2d 786, 787-88 (1990) (recognizing the “rule that if a post conviction case is resolved in such a way as to make it unnecessary for the hearing judge to reach a particular allegation and the hearing judge in fact does not reach it, the unresolved allegation continues to retain its first petition status with the result that, upon a subsequent petition for post conviction relief raising that allegation, a petitioner [is] entitled to a hearing”) (internal quotation marks and citation omitted).

Because Frasch received the same collateral review he would have received had he timely filed his application for leave to appeal, the dissent’s assertion 'that he end-1 ed up in a different procedural posture is simply wrong. III. In sum, when Frasch filed his application for leave to appeal his conviction and sentence to the Court of Special Appeals, he initiated direct review. That court engaged in direct review when it considered and denied his application on July 9, 2001.

AEDPA’s statute of limitations started running ninety days later, on October 8, 2001, when Frasch’s time for seeking further direct review in the United States Supreme Court expired. Because Frasch was seeking state collateral review-on that date, the statute of limitations was tolled until that review concluded on December 10, 2002. Thus, his petition for a writ of habeas corpus was not time-barred by AEDPA’s one-year statute, of limitations when he filed it on August 22, 2003. We therefore reverse the district court’s order dismissing the petition and remand for further proceedings. REVERSED AND REMANDED.