Phillip Eugene PARMLEY, Plaintiff-Appellant, v. Larry NORRIS, Director, Arkansas Department of Corrections, agent of Arkansas Department of Corrections, Defendant-Appellee, 586 F.3d 1066

MELLOY, Circuit Judge. Philip Eugene Parmley, an Arkansas inmate convicted of possession of methamphetamine, appeals the district court’s order dismissing his petition for habeas corpus relief as untimely. This case presents the issue of which appellate court in Arkansas is the “state court of last resort.” That determination controls when the statute of limitations commenced for Parmley’s habeas petition.

We hold that the Arkansas Court of Appeals is not a “state court of last resort,” and therefore the statute of limitations began running immediately after the Arkansas Court of Appeals denied Parmley’s motion for a rehearing. Accordingly, we affirm the district court’s judgment. I. Background Parmley was convicted of possession of methamphetamine in the Circuit Court of Garland County, Arkansas. He was sentenced to thirty years in prison on September 25, 2002. The Arkansas Court of Appeals affirmed Parmley’s conviction. Parmley v. Arkansas, No. CR03-71, 2004 WL 61045, at *7 (Ark.Ct.App. Jan.14, 2004).

Thereafter, Parmley filed two pro se motions. First, he filed a petition for rehearing, which Arkansas Court of Appeals denied on May 19, 2004. Second, Parmley submitted a belated petition for review to the Arkansas Supreme Court. The clerk declined to file his petition because it was untimely. On May 20, 2004, the Arkansas Supreme Court denied Parmley’s request to direct the clerk to file his belated motion for review. Parmley v. Arkansas, No. CR04-462, 2004 WL 1119923, at *1 (Ark. May 20, 2004). Parmley did not seek any further review of his direct appeal by the Arkansas Supreme Court or the U.S. Supreme Court.

On July 9, 2004, Parmley petitioned for post-conviction relief in Arkansas state court pursuant to Arkansas Rule of Criminal Procedure 37.1. The Arkansas trial court denied Parmley relief under Rule 37.1. The Arkansas Supreme Court affirmed, Parmley v. Arkansas, No. CR05-141, 2006 WL 3239992 (Ark. Oct.5, 2006) (per curiam), and issued a mandate denying post-conviction relief on October 24, 2006. On September 29, 2007, nearly 340 days after the Arkansas Supreme Court denied post-conviction relief, Parmley filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in federal district court.

Parmley’s habeas petition alleged ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. A magistrate judge issued a report and recommendation, concluding that Parmley’s conviction became final on May 19, 2004 when the Arkansas Court of Appeals denied Parmley’s motion for rehearing on his direct appeal. Consequently, the limitations period was running for the time period immediately after the Arkansas Court of Appeals denied Parmley’s appeal.

When combined with the later gap of nearly 340 days, Parmley filed his petition beyond the 1-year statute of limitations for habeas corpus petitions. The district court adopted the magistrate’s report and recommendation in its entirety, dismissing Parmley’s habeas petition with prejudice because it was untimely. Parmley v. Norris, No. 6:07-cv-6082, 2008 WL 2561964, at *1. On July 14, 2008, Parmley requested a certificate of appealability from the district court. The district court denied the certificate of appealability on September 5, 2008. Parmley timely appealed to this Court.

On April 2, 2009, we granted Parmley’s application for certificate of appealability to review the dismissal of Parmley’s habeas petition. Parmley presents two potential grounds for reversal. First, Parmley argues that his habeas petition was timely because the statute of limitations was tolled for 90 days following the Arkansas Court of Appeals’ denial of his motion for rehearing. Ninety days represents the time allotted for Parmley to file a petition for writ of certiorari to the U.S. Supreme Court. See Sup. Ct. R. 13.1.

Second, Parmley argues that the district court should have stayed his habeas petition pursuant to Rhines v. Weber, 544 U.S. 269, 275, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). This Court has jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We review for the district court’s

interpretation of law de novo. Walker v. Norris, 436 F.3d 1026, 1029 (8th Cir.2006). II. Statute of Limitations We must consider three time periods following the denial of Parmley’s motion for rehearing by the Arkansas Court of Appeals: (1) the 50 day period immediately after May 19, 2004, and before Parmley filed a state post-conviction relief petition; (2) the time period that Parmley’s state post-conviction relief petition was pending; and (3) the nearly 340-day period between the conclusion of state post-conviction relief proceedings and the commencement of this action.

It is undisputed that the statute of limitations was tolled for the second period, see 28 U.S.C. § 2244(d)(2), and running for the third period. The parties disagree, however, on the first period. The district court held that the statute of limitations was running during that 50 day period, and therefore Parmley’s habeas petition was untimely. Parmley argues that the statute of limitations did not begin running until after that 50 day period. It is undisputed that if Parmley is correct, his petition was timely. Thus, we must determine when the statute of limitation began running.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), a 1-year statute of limitations governs a state prisoner’s petition for federal habeas corpus relief. 28 U.S.C. § 2244(d)(1). The relevant triggering date for the statute of limitations is “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). This provision permits prisoners time to seek direct review in the U.S. Supreme Court. Smith v. Bowersox, 159 F.3d 345, 341-43 (8th Cir.1998).

If a prisoner files a petition for certiorari, then his conviction becomes final upon “the completion or denial of certiorari proceedings before the United States Supreme Court.” Id. at 348. If a prisoner does not petition the U.S. Supreme Court for review, then his conviction becomes final when the time for filing that petition expires, so long as the Supreme Court could have reviewed his direct appeal. Riddle v. Kemna, 523 F.3d 850, 855 (8th Cir.2008). The time for filing a writ of certiorari in the U.S. Supreme Court is 90 days. Sup.Ct. R. 13.1.

Therefore, the statute of limitations on a habeas petition begins running 90 days after a prisoner reaches the end of “all direct criminal appeals in the state system.” Bowersox, 159 F.3d at 348. If, however, the Supreme Court lacked jurisdiction to review the direct appeal, then the statute of limitations begins to run immediately following the conclusion of the prisoner’s direct appeal. Riddle, 523 F.3d at 855. Parmley did not petition the U.S.

Supreme Court for review, but he nonetheless argues that “the expiration of time for seeking [direct] review” of his conviction includes the 90-day period for seeking Supreme Court review. In Riddle v. Kemna, we held that the 90-day toll on the statute of limitations did not apply after a judgment by the Missouri Court of Appeals because U.S. Supreme Court review was unavailable. Id. at 854-55. Supreme Court review is limited to judgments of a “state court of last resort” or a lower state court if the “state court of last resort” has denied discretionary review. See Sup.Ct. R. 13.1; see also 28 U.S.C. § 1257(a).

Because the Missouri Court of Appeals was not the “state court of last resort,” the 90-day toll was unavailable for the petitioner in Riddle. 523 F.3d at 855. At first glance, this case appears to be the Arkansas version of Riddle. In both eases, the habeas petitioner appealed his conviction to the intermediate state court but did not timely petition the state supreme court for review.

Further, the central issue in both cases is whether the intermediate state court is a “state court of last resort,” and therefore whether “the expiration of time for seeking [direct] review” includes a 90-day period for seeking certiorari review after the intermediate state court’s decision. “Identifying the state court of last resort requires an examination of the particular state court procedures.” Riddle, 523 F.3d at 853. The Arkansas Constitution vests the Arkansas Supreme Court— not the Court of Appeals — with broad jurisdiction, general authority, and rule-making powers. See Ark.

Const, amend. 80, § 2(D)(1) (2001) (granting the Arkansas Supreme Court “statewide appellate jurisdiction”); Id. § 4 (“The Supreme Court shall exercise general superintending control over all courts of the state.... ”); Id. § 3 (“The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts.... ”). Most importantly, the Arkansas Constitution establishes a hierarchy within the Arkansas judiciary: “There shall be a Court of Appeals which may have divisions thereof as established by Supreme Court rule.

The Court of Appeals shall have such appellate jurisdiction as the Supreme Court shall by rule determine and shall be subject to the general superintending control of the Supreme Court.” Id. § 5. Pursuant to the state constitution, the Arkansas Supreme Court has adopted several rules regarding the jurisdiction of the Court of Appeals and how cases can be transferred to the Supreme Court. See, e.g., Ark. Sup.Ct. R. 1-2 (“Appellate jurisdiction of the Supreme Court and Court of Appeals”); Ark. Sup. Ct. R. 2-3 (establishing the requirements for parties to petition the Court of Appeals for rehearing); Ark. Sup.Ct.

R. 2-4 (establishing the rules for petitions for review by the Supreme Court). As such, the Arkansas Supreme Court Rules determine the Court of Appeals’ jurisdiction and caseload, whereas the Arkansas Constitution establishes the Supreme Court’s jurisdiction and authority to establish rules governing which cases it will review. These authorities persuade us that the Arkansas Supreme Court — not the Court of Appeals — is the “court of last resort” in Arkansas.

Parmley contends that the Arkansas Court of Appeals was the “state court of last resort” because it is the only court that could have reviewed his direct appeal. Parmley argues that he was forbidden from petitioning the Arkansas Supreme Court for review of his direct appeal. It is undisputed that Parmley was required to appeal his conviction first to the Arkansas Court of Appeals. See Ark. Sup.Ct. R. 1-2(a)(2) (requiring criminal appeals to be filed in the Arkansas Court of Appeals unless the death penalty or life imprisonment has been imposed).

Thereafter, petitions to the Arkansas Supreme Court for review must allege either: (

i) the case was decided in the Court of Appeals by a tie vote, (ii) the Court of Appeals rendered a decision which is in conflict with a prior holding of a published opinion of either the Supreme Court or the Court of Appeals, or (iii) the Court of Appeals otherwise erred with respect to one of the grounds listed in Rule 1 — 2(b). Ark. Sup.Ct. R. 2 — 4(c). Rule l-2(

b) lists six grounds that the Supreme Court will consider in determining reassignment of cases: (1) issues of first impression, (2) issues upon which there is a perceived inconsistency in the decisions of the Court of Appeals or Supreme Court, (3) issues involving federal constitutional

interpretation, (4) issues of substantial public interest, (5) significant issues needing clarification or development of the law, or overruling of precedent, and (6) appeals involving substantial questions of law concerning the validity, construction, or

interpretation of

an act of the General Assembly, ordinance of a municipality or county, or a rule or regulation of any court, administrative agency, or regulatory body. Ark. Sup.Ct. R. l-2(b). Parmley insists that he could not have petitioned the Arkansas Supreme Court for review under any of the grounds listed in Rules 2 — 4(

c) and l-2(b). This fact, argues Parmley, means that the Arkansas Court of Appeals was the “state court of last resort” at least as to his case. That inference is where we disagree. Arkansas Supreme Court Rule 1-2 makes clear that the Supreme Court’s authority to review a case is not dependent upon or limited by the enumerated grounds for assigning cases. Rule 1 — 2(

b) provides, “Any case is subject to reassignment by the Supreme Court, and in doing so, the Supreme Court mil consider but not be limited to [the list of grounds for reassignment].” Ark. Sup.Ct. R. 1 — 2(b) (emphasis added). Moreover, Rule l-2(e), which clarifies the Arkansas Supreme Court’s discretionary considerations in determining whether to grant a petition for review, states that the factors from Rules 1— 2(

b) and 2-4(c) “neither [control] nor fully [measure] the Supreme Court’s discretion.” Ark. Sup.Ct. R. l-2(e). Lastly, Rule l-2(

g) allows the Supreme Court to assign or transfer cases “to achieve a fair allocation of the appellate workload,” which is a consideration that is completely absent from Rules 1 — 2(

b) and 2-4(c). The Arkansas Supreme Court rules expressly indicate' that the grounds for review listed in Rules 1 — 2(

b) and 2-4(

e) are not exhaustive. Notably, the Arkansas Supreme Court and one federal district court concur with this

interpretation of the Arkansas Supreme Court Rules. See Maxey v. Tyson Foods, Inc., 341 Ark. 306, 18 S.W.3d 328, 329 (2000) (“[T]he factors we consider in determining whether to grant a petition to review neither control nor fully measure our discretion”); Ben-Yah v. Norris, 570 F.Supp.2d 1086, 1093-94 (E.D.Ark.2008) (“Ark. R. Sup.Ct.l-2(

b) makes it clear that the Arkansas Supreme Court’s discretion for review is not limited to the express factors.”). Even though Parmley claims that his direct appeal could not fit within the broad categories in Rules 1 — 2(

b) and 2- 4(c), the Arkansas Supreme Court retained discretion to review Parmley’s direct appeal. Consequently, the Arkansas Court of Appeals was not the “state court of last resort.” Parmley also cites Arkansas Supreme Court Rule 1 — 2(

h) in support of the argument that his conviction was final after the Court of Appeals denied his motion for rehearing. The Arkansas Supreme Court adopted Rule 1 — 2(

h) in response to language in O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). It clarifies that convicted criminals shall not be required to petition the Arkansas Supreme Court for review in order to exhaust “all available state remedies.” Ark. Sup.Ct. R. 1 — 2(h). In Riddle, we held that a similar rule from the Missouri Supreme Court was inapposite because it did not and could not control review by the U.S. Supreme Court. 523 F.3d at 854; see also Pugh v. Smith, 465 F.3d 1295, 1300 (11th Cir.2006) (rejecting a like argument based on Georgia’s exhaustion of remedies rule). Indeed, Rule l-2(

h) neither controls the jurisdiction of the Arkansas Supreme Court, nor does it allow the U.S. Supreme Court to grant certiorari review to a judgment from the Arkansas Court of Appeals. Admittedly, this case is more difficult than Riddle due to dicta from two Arkansas Supreme Court cases decided shortly after the Arkansas General Assembly created the Arkansas Court of Appeals. In Moose v.

Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979), the Supreme Court denied a petition to review a Court of Appeals judgment and took the opportunity to declare its aspirations for the Arkansas appellate structure: Ideally, the Supreme Court and the Court of Appeals will each have its own field of primary jurisdiction. Ideally, each court will in effect be a court of last resort, with its decisions having a desirable finality. Ideally, it will be immaterial to the litigant whether his particular case goes to one court or to the other. Id. at 664. Two years later, in Daniels v.

Bennett, 272 Ark. 275, 613 S.W.2d 591 (1981), the Arkansas Supreme Court explained that it does “not regard the Court of Appeals as a purely intermediate court, ‘becoming merely an expansive and time-consuming level in the appellate structure.’ ” Id. at 592 (quoting Moose v. Gregory ). However, neither Moose nor Daniels controls the Arkansas Supreme Court’s jurisdiction or authority to review a case. If anything, these two opinions show that the Arkansas Supreme Court’s has exercised its discretion to adopt a limited role in the Arkansas appellate landscape.

Parmley’s argument fails because what matters is the Arkansas Supreme Court’s authority and jurisdiction to review a case — not whether it has exercised discretion to do so. See Gorman v. Wash. Univ., 316 U.S. 98, 101, 62 S.Ct. 962, 86 L.Ed. 1300 (1942) (dismissing an appeal for lack of jurisdiction because the appellant did not seek review from “the last state tribunal ... to which the cause could be brought for review”); Stratton v.

Stratton, 239 U.S. 55, 56, 36 S.Ct. 26, 60 L.Ed. 142 (1915) (dismissing an appeal from a state intermediate court where the state supreme court retained discretionary authority to review the case and refusing to “indulg[e] in conjecture” as to how the state supreme court would have exercised discretion had the appellant sought such review). There is one district court case that cannot be reconciled with this opinion. In Collier v.

Norris, 402 F.Supp.2d 1026 (E.D.Ark.2005), the district court determined that the Arkansas Court of Appeals was the “state court of last resort” because “there was no good-faith basis for [the prisoner] to petition the Supreme Court of Arkansas for review under that court’s Rule 2-4.” Id. at 1030. Accordingly, the court held the statute of limitations was tolled for 90 days because the prisoner “could have petitioned the Supreme Court of the United States for writ of certiorari seeking review of his conviction without first petitioning the Supreme Court of Arkansas for review.” Id.

Collier is directly at odds with our conclusion here. Although the requirement in Rule 2-4 appears strict, we cannot interpret Rule 2-4 to overshadow the plain language in Rule 1- 2 that the enumerated discretionary factors are non-exhaustive. Finally, Parmley argues that Arkansas Supreme Court Rule 2-4(

c) creates an “affirmative duty for a party to petition to review to the Arkansas Supreme Court if the Arkansas Court of Appeals erred with respect to one of the grounds enunciated in Ark. R. Sup.Ct. l-2(b).” Appellant’s Reply Br. 1. To the contrary, Rule 2- 4 does not impose an “affirmative duty” on prisoners to appeal to the Arkansas Supreme Court in any situation. In the future, when a prisoner lacks a good faith basis for arguing that the Arkansas Supreme Court should review his conviction based on one of the factors listed in Rules l-2(

b) or 2 — 4(c), as here, then the prisoner should either (1) timely petition the Arkansas Supreme Court for discretionary review based on other factors or (2) file a petition for habeas corpus relief within one year (excluding any tolling for state post-conviction relief proceedings). Parties have no “affirmative duty” to petition the Arkansas Supreme Court for review, regardless of whether they plan to file a petition for habeas corpus relief. We are merely clarifying when the statute of limitations begins running for some prisoners.

We conclude that the Arkansas Court of Appeals was not the “state court of last resort,” and therefore the U.S. Supreme Court could not have reviewed either the Arkansas Court of Appeals’ affirmance of Parmley’s conviction or denial of his motion for rehearing. Accordingly, we hold that “the expiration of time for seeking [direct] review” does not include the time period that Parmley could have filed a petition for certiorari. The statute of limitations on Parmley’s habeas petition began running on May 20, 2004.

Because his petition was filed some 390 days after that date (excluding the time that post-conviction relief proceedings were pending), Parmley’s petition for a writ of habeas corpus was correctly dismissed as untimely- ill. Failure to Stay As an alternative basis for reversal, Parmley argues that the district court should have stayed his petition pursuant to Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed,2d 440 (2005), to allow him to perfect his petition by pursuing his unexhausted claims in Arkansas state court.

Because the stay-and-abeyance procedure for mixed habeas petitions is limited to timely petitions, see id. at 275 125 S.Ct. 1528, our conclusion that Parmley’s petition was untimely renders the stay-and-abeyance issue moot. The judgment of the district court is affirmed. . The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas. . The Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. .

Although Parmley belatedly sought review from the Arkansas Supreme Court, his appeal was never filed by the clerk’s office because it was untimely. Moreover, the Arkansas Supreme Court denied Parmley’s motion to direct the clerk to file the appeal. Parmley does not contend that the U.S. Supreme Court could have reviewed that decision from the Arkansas Supreme Court. . The district court eventually denied habeas relief, and this Court affirmed without reaching the statute of limitations question. Collier v. Norris, 485 F.3d 415 (8th Cir.2007).