Harl A. Garrett v. Dexter Payne

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-3553
___________________________
Harl A. Garrett
Plaintiff - Appellant
v.
Dexter Payne
Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: April 16, 2025
Filed: October 3, 2025 (Corrected: October 7, 2025)
____________
Before KELLY, ERICKSON, and STRAS, Circuit Judges.
____________
KELLY, Circuit Judge.
After a jury convicted Harl Garrett of sexual assault, he asked his lawyer to
file an appeal. But weeks later, after Arkansas’ window for filing a direct appeal had
closed, Garrett was informed that his lawyer had instead withdrawn from
representing him. Garrett’s subsequent pro se motion to file a belated appeal was
denied. Before us is Garrett’s federal petition for habeas corpus under 28 U.S.C.
§ 2254, in which he alleges a violation of his right to pursue a direct appeal. The

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district court denied Garrett’s petition, finding that it was time-barred, but granted a
certificate of appealability on whether Garrett’s motion to file a belated appeal in
Arkansas tolled the statute of limitations under 28 U.S.C. § 2244(d)(2). We answer
that question in the affirmative, and we reverse and remand.
I.
On August 27, 2019, Garrett was convicted of second-degree sexual assault
after a trial in Garland County, Arkansas. He received a 20-year sentence the same
day. At the time, Garrett was represented by a lawyer named Ben Hooten, and
Garrett asked Hooten to appeal his case. However, on September 11, 2019, Hooten
instead filed a motion seeking to withdraw as Garrett’s counsel. In the motion,
Hooten admitted that Garrett “ha[d] requested that an appeal be entered,” but Hooten
felt that “[a]nother attorney would be better suited to look for errors that may have
occurred at trail [sic], and not having to argue against the self interest of counsel.”
Hooten added that Garrett had “been given copies of Rules of Appellate Procedure-
Criminal, and Rules of the Supreme Court and Court of Appeals of the State of
Arkansas. . . . downloaded and printed off the Arkansas Supreme Court page.”
Hooten’s withdrawal motion was hand-delivered to Garrett.
The same day, the trial court granted Hooten’s motion to withdraw. However,
Garrett never received the court’s withdrawal order. So, Garrett did not learn Hooten
was no longer on the case until October 8, 2019, when he received a letter from
Hooten informing him that he was “on his own,” “explaining . . . what the word Pro
se means,” and enclosing a pro se notice of appeal. By this point, Garrett’s 30-day
window to appeal his conviction had run. See Ark. R. App. P.–Crim. 2(a) (2019).
On October 15, 2019, Garrett nonetheless signed a pro se notice of appeal and a
request to proceed in forma pauperis, and mailed these papers to Hooten for filing.
But two weeks later, Hooten returned the documents, informing Garrett that he
would need to file the papers on his own, through the prison mail system. Hooten
added that he was “doubtful they will accept them because they are too late being
filed, but try it anyway.”

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On December 16, 2019, Garrett filed motions in both the Garland County
Circuit Court and the Arkansas Supreme Court, seeking a belated appeal and to
proceed in forma pauperis. See Ark. R. App. P.–Crim. 2(e) (2019). The Circuit Court
declined Garrett’s motions the following day, informing him that the Arkansas
Supreme Court was the proper recipient. About a week later, the Arkansas Supreme
Court also informed Garrett that his submissions were deficient because they lacked
a “certified copy of the sentencing order and any other documents that . . . are
relevant such as the order relieving [his] attorney of representation.” In turn, on
March 25, 2020, Garrett filed the motions again, with properly certified
documentation.
Garrett’s motion for belated appeal was denied in an order dated April 15,
2020. The court provided no explanation for its decision. Garrett next tried mailing
a state postconviction petition to the Garland County Circuit Court. See Ark. R.
Crim. P. 37.1(a). His motion claimed three errors: first, that Hooten “did not follow
through with contract to defend”; second, that the prosecution had failed to properly
investigate his case; and third, that the P.A. system had malfunctioned, harming
Garrett’s ability to hear what was going on during his trial.1 But on September 17,
2020, the circuit court denied Garrett’s petition as well, finding it was untimely. See
Ark. R. Crim. P. 37.2(c)(iii) (2015). Garrett did not appeal this denial.
Acting pro se, Garrett filed a federal habeas petition under 28 U.S.C. § 2254
on October 19, 2020. The district court appointed him a lawyer, who filed an
amended petition raising a single claim: that Garrett had been denied his
constitutional right to a direct appeal. The petition stressed that despite Garrett
asking to appeal his conviction, Hooten failed to file a notice of appeal on his behalf,
and that both Hooten and the court failed to inform Garrett of Hooten’s withdrawal
or appoint a new lawyer to represent him in time to file a direct appeal. See Ark. R.
App. P.–Crim 16(b); see also Ahumada v. United States, 994 F.3d 958, 960 (8th Cir.
1 At the time of trial, Garrett was 74 years old.

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2021) (“A criminal defendant has a constitutional right to counsel on the first direct
appeal.”).
The district court denied Garrett’s habeas petition as time-barred under the
one-year statute of limitations imposed by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2244(d)(1). The timeliness of
Garrett’s petition hinged on whether AEDPA’s statute of limitations had been tolled
during the three-week pendency of Garrett’s motion for a belated appeal, and the
district court concluded that it had not. The district court acknowledged, however,
that “reasonable jurists could disagree as to whether a motion for belated appeal in
Arkansas qualifies as a basis for statutory tolling” under 28 U.S.C. § 2244(d)(2). In
the district court’s view, “the proper categorization of a motion for a belated appeal
in Arkansas is not free from doubt,” and a circuit split existed on the question.
Accordingly, the district court “issue[d] a certificate of appealability on the statutory
tolling issue related to the motion for a belated appeal.”
Garrett appeals.
II.
“On an appeal from the denial of a habeas petition, we review the district
court’s findings of fact for clear error and its conclusions of law de novo.” Howard
v. Braun, 862 F.3d 706, 709 (8th Cir. 2017).
A one-year limitations period applies to § 2254 petitions and “run[s] from the
latest of,” among other events, “the date on which the factual predicate of the claim
or claims presented could have been discovered through the exercise of due
diligence.” 28 U.S.C. § 2244(d)(1)(D). The district court found that Garrett’s
limitations period began running on October 8, 2019, when Garrett learned that his
lawyer had abandoned him and his appeal period had expired. Garrett’s § 2254
petition, which was filed on October 19, 2020, thus appeared to come eleven days
after the deadline had passed.

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However, AEDPA’s limitations period 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.” 28 U.S.C. § 2244(d)(2).
Because Garrett’s motion for a belated appeal was pending for about 20 days before
it was denied, his petition is timely if a belated-appeal motion in Arkansas constitutes
“collateral review with respect to the pertinent judgment or claim.”2 Id.
In Wall v. Kholi, 562 U.S. 545 (2011), the Supreme Court defined the term
“collateral review” as used in § 2244(d)(2). The Court first defined “collateral” as
“a form of review that is not part of the direct appeal process.” Id. at 552. Then, the
Court turned to the term “review,” which it explained was “best understood as an
‘act of inspecting or examining,’” “a ‘judicial reexamination,’” or “a looking over
or examination with a view to amendment or improvement.” Id. at 553 (citations
omitted). Summing up, the Court defined “‘collateral review’ of a judgment or claim
[as] a judicial reexamination of a judgment or claim in a proceeding outside of the
direct review process.” Id.
Applying this definition, the Court in Wall held that a sentence-reduction
motion in Rhode Island sought “collateral review” under § 2244(d)(2). Id. at 555–
56. The motion was “collateral”—it happened outside the direct appeal process—
and “undoubtedly call[ed] for ‘review’ of the sentence,” because it “involve[d]
judicial reexamination of the sentence to determine whether a more lenient sentence
[wa]s proper.” Id. The Court added the following distinction in a footnote: “[a]
motion to reduce sentence is unlike a motion for post-conviction discovery or a
motion for appointment of counsel, which generally are not direct requests for
judicial review of a judgment and do not provide a state court with authority to order
relief from a judgment.” Id. at 556 n.4.
2 The parties do not dispute that Garrett’s belated-appeal motion was “properly
filed.”

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Garrett argues that a belated-appeal motion qualifies for statutory tolling
under § 2244(d)(2) because it entails judicial review of “a ‘claim’ that an inmate’s
constitutional right to a direct appeal has been violated,” and that such a motion
“invites a reexamination of a judgment” because it seeks to reopen proceedings to
appeal a conviction. In contrast, the State argues that a belated-appeal motion is more
like a motion to appoint counsel or motion for discovery, which Wall indicated did
not constitute “collateral review.” 562 U.S. at 556 n.4.
In Arkansas, a belated-appeal motion allows “[t]he Supreme Court [to] act
upon and decide a case in which the notice of appeal was not given or the transcript
of the trial record was not filed in the time prescribed, when a good reason for the
omission is shown by affidavit.” Ark. R. App. P.–Crim. 2(e). A defendant may file
such a motion up to 18 months after the entry of judgment, id., and has “good reason”
when “the court makes the error causing the appeal to be untimely,” or “the attorney
has failed to timely file the notice of appeal,” McDonald v. State, 146 S.W.3d 883,
888–89 (Ark. 2004). When a belated-appeal motion is granted, “the clerk of . . . court
[is] ordered to accept the notice of appeal or record, and the appeal . . . proceed[s]
without delay.” Id. at 892.
A belated-appeal motion in Arkansas falls somewhere between the types of
motions explicitly addressed in Wall. On one hand, by definition, a belated-appeal
motion directly “le[ads] to new . . . proceedings” aimed solely at “gaining . . . relief
from the judgment of conviction” or sentence. Streu v. Dormire, 557 F.3d 960, 965
(8th Cir. 2009) (holding that motion to reopen postconviction proceedings
constituted “collateral review”).3 In this way, a motion for belated appeal is not
3 Our opinion in Streu predates the Supreme Court’s decision in Wall. But we
have not overruled Streu’s holding, and as described below, we read Wall as
consistent with Streu’s assessment. See Young v. Hayes, 218 F.3d 850, 853 (8th Cir.
2000) (“This panel is bound by previous panel opinions of our own Court, but we
are not so bound if an intervening expression of the Supreme Court is inconsistent
with those previous opinions.”).

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attenuated from an attack on the judgment or sentence in the same way as a motion
for counsel or discovery. On the other hand, a belated-appeal motion is unlike the
sentencing-reduction motion at issue in Wall, because it fails to put an Arkansas
court in a position to immediately alter the underlying judgment in resolving the
motion. Instead, a successful motion reopens an appeal of the underlying conviction.
In turn, our sister circuits have disagreed as to whether belated-appeal motions
constitute “collateral review.” The Sixth Circuit has assumed that belated-appeal
motions, while pending, toll AEDPA’s limitations period. See Board v. Bradshaw,
805 F.3d 769, 771–72 (6th Cir. 2015) (holding “a motion for leave to file a delayed
appeal . . . is considered part of the collateral review process for purposes of tolling
AEDPA’s statute of limitations”); see also DiCenzi v. Rose, 452 F.3d 465, 468 (6th
Cir. 2006) (“[A] motion for delayed appeal . . . if properly filed . . . does toll the
statute during the time the motion was pending.”). Contrarily, the Eleventh Circuit
has held that such motions do not constitute “collateral review” under the definition
provided in Wall. See Espinosa v. Sec’y, Dep’t of Corr., 804 F.3d 1137, 1138–39
(11th Cir. 2015) (“[Petitioner]’s petition for belated appeal did not involve ‘collateral
review’ of his conviction . . . .”); Danny v. Sec’y, Fla. Dep’t of Corr., 811 F.3d 1301,
1302 (11th Cir. 2016) (same).
We conclude that an Arkansas motion for belated direct appeal constitutes
“collateral review.”4 First, as the Arkansas Supreme Court has clarified, a belated-
appeal motion falls outside the direct appeal process. Dodson v. Norris, 288 S.W.3d
662, 665 (Ark. 2008) (holding that “a motion for belated appeal is not part of the
ordinary appellate review process”). The State thus does not appear to dispute that it
4 Both a motion to reopen an appeal—which is necessarily filed after a
judgment has become final—and a motion for postconviction relief predicated on
the denial of a direct appeal are filed “outside of the direct review process.” And the
remedy for both is the same: to reinstate the direct appeal. The two motions, in both
posture and remedy, appear to be materially indistinguishable, and we see no
principled reason that the latter would be “collateral” and the former “direct.”

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is at least “collateral” within Wall’s meaning. See Wall, 562 U.S. at 553 (noting that
“collateral” proceedings are those “separate from the direct review process”).5
Second, we conclude that a belated-appeal motion invites “review” under
§ 2244(d)(2). When the Arkansas Supreme Court determines that good cause exists
for a defendant’s failure to perfect an appeal, the Court reopens the appeal. See
Mangiapane v. State, 862 S.W.2d 258, 259 (Ark. 1993) (“The motion for belated
appeal is granted. The Clerk of the Supreme Court is directed to reinstate the appeal
for a determination on the merits.”); see also Brown v. State, 644 S.W.3d 247, 249
(Ark. 2022) (same). The only result of a defendant’s successfully moving for a
belated appeal is to pursue one, and a belated-appeal motion reinstates a state court’s
jurisdiction to hear it, “provid[ing] . . . [it] with authority to order relief from a
judgment.” Wall, 562 U.S. at 556 n.4. Because a meritorious motion requires a state
court to entertain the defendant’s attack on his judgment, a request for a belated
direct appeal is a “direct request[] for judicial review of a judgment” and thus
constitutes “collateral review.” Id.; see also Kares v. Morrison, 77 F.4th 411, 421
(6th Cir. 2023) (holding motion for postconviction DNA testing was “collateral
review” under Wall because, despite being “sequential in nature,” it “provides a
mechanism for review of the underlying judgment by setting forth the procedures
that a court must follow after receiving the results of postconviction DNA testing”);
Hutson v. Quarterman, 508 F.3d 236, 239 (5th Cir. 2007) (drawing same conclusion,
noting “the motion for post-conviction DNA proceedings is seeking to challenge that
judgment by potentially requiring that the trial court hold a hearing to determine
5 We recognize that unlike the motion to reopen postconviction proceedings
we considered in Streu, which was “designed to further the ultimate goal of gaining
collateral relief from the judgment of conviction,” 557 F.3d at 965 (emphasis
added), the aim of a motion for belated direct appeal is to reinstate direct review.
But this does not affect the collateral nature of the latter motion. It is collateral
because it necessarily occurs outside of the direct review process, not because the
relief it seeks involves reinstatement of an appeal. See, e.g., Koenig v. North Dakota,
755 F.3d 636, 642 (8th Cir. 2014) (granting collateral relief under § 2254 for denial
of right to counseled direct appeal, and remanding for either new appeal or, “[i]f
such an appeal is not granted” to the petitioner, for the judgment to be vacated).

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whether it was reasonably probable that the convicted person would have been
acquitted given the DNA results” (emphasis added)). This mandatory result from a
successful belated-appeal motion—the requirement that the court reconsider the
underlying conviction by entertaining the movant’s contemplated appeal—further
distinguishes it from a typical motion for discovery or counsel. See Streu, 557 F.3d
at 965 (finding that Streu’s motion was “collateral review” because it “would have
led to new post-conviction proceedings in the circuit court . . . to further the ultimate
goal of gaining collateral relief from the judgment of conviction” (emphasis added)).
The State argues, in line with the Eleventh Circuit, that a belated-appeal
motion is not “collateral review” because it does not provide the court with authority
to “immediately bring about” relief from the defendant’s underlying judgment and
does not entail review of the merits of the underlying conviction. See Espinosa, 804
F.3d at 1141 (“The appellate court considering the petition [for belated
postconviction appeal] does not reexamine the underlying judgment or claim, and a
ruling on the petition cannot make ‘amendment[s] or improvement[s]’ to the terms
of custody.” (quoting Wall, 562 U.S. at 553)); Danny, 811 F.3d at 1304 (noting
“petition for a belated appeal does not qualify as an application for collateral review
because, under Florida law, it ‘does not reach the merits of the anticipated appeal’”
(quoting Espinosa, 804 F.3d at 1141)).6 The State’s argument finds support in the
dicta in Wall’s footnote distinguishing a sentence-reduction motion from motions
6 Notably, it appears that Arkansas courts, at least in some cases, do address
the underlying merits of a contemplated appeal when denying belated-appeal
motions. See Bryant v. State, 575 S.W.3d 547, 549 (Ark. 2019) (noting that in
adjudicating a motion for belated appeal under Rule 2(e), “this court need not
consider the reasons for the petitioner’s failure to file a timely notice of appeal when
it is clear from the record that the postconviction petition denied was wholly without
merit”); Latham v. State, 2018 Ark. 44, 2018 WL 897481, at *1 (2018) (refusing to
consider petitioner’s “reasons for not filing a timely notice of appeal because it is
clear from the record that [his] petition was wholly without merit,” and claiming that
“an appeal from an order that denied a petition for postconviction relief . . . will not
be permitted to go forward when it is clear that there would be no merit to the
appeal”). Because the Arkansas court provided no explanation for its denial of
Garrett’s belated-appeal motion, we cannot say whether it reasoned similarly here.

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for appointment of counsel or discovery because the latter two “generally are not
direct requests for judicial review of a judgment and do not provide a state court with
authority to order relief from a judgment.” 562 U.S. at 556 n.4.
We do not read Wall so narrowly. Wall did not hold that to constitute
“collateral review,” a motion must place the state court in a position to immediately
order relief from a judgment. Rather, Wall described “collateral review” as the
“reexamination of a judgment or claim,” “with a view to amendment or
improvement.” Id. at 553 (emphasis added) (quotation omitted). Indeed, Wall
stressed a broad definition of “review,” noting that “[j]ust because the phrase
‘collateral review’ encompasses proceedings that challenge the lawfulness of a prior
judgment, it does not follow that other proceedings may not also be described as
involving ‘collateral review.’” Id. at 557–58; see also Hardin v. Genovese, No. 21-
5867, 2023 WL 1992036, at *7 (6th Cir. Feb. 14, 2023) (Kethledge, J., dissenting)
(noting that Wall “broadly defined the term ‘review’ as used in § 2244(d)(2)”).
Our reading of Wall also comports with the principles of comity underlying
§ 2244(d)(2). We have noted that “the purpose of § 2244(d)(2) . . . is to ‘encourage
petitioners to seek relief from state courts in the first instance,’ thereby giving ‘an
opportunity to the state courts to correct a constitutional violation.’” Polson v.
Bowersox, 595 F.3d 873, 875 (8th Cir. 2010) (citation modified) (quoting Streu, 557
F.3d at 963–64); see also Rivers v. Guerrero, 145 S. Ct. 1634, 1645 (2025) (noting
that “[t]he 1-year deadline for filing a § 2254 petition . . . promotes exhaustion of
claims and respects state-court processes”). Arkansas’ belated-appeal procedure is a
mechanism to ensure the court can correct any errors underlying a judgment, and it
only applies in situations where the defendant would have pursued one but for some
failure of the court or counsel to file an appeal notice in time. See McDonald, 146
S.W.3d at 888–89.
And while Wall counseled against “complicat[ing] the work of federal habeas
courts” through hinging a definition of “collateral review” on individualized
inquiries, see Wall, 562 U.S. at 558–59 (rejecting interpretation of § 2244(d)(2) that

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would require making “difficult distinctions” in individual cases as to whether
motion for sentence reduction “challenge[d] a sentence on legal grounds” or “merely
ask[ed] for leniency”), we note our decision is especially appropriate in Garrett’s
case. Thirty days from the entry of judgment in his case, Garrett lost the ability to
appeal, see Ark. Code Ann. § 16-91-105(a)(1), after the trial court and Garrett’s
lawyer allegedly failed to secure him that right. Garrett’s belated-appeal motion
asked the Arkansas Supreme Court to reconsider that failure; it was plainly a “direct
request[] for judicial review” of the only claim he has brought in federal habeas
proceedings—that he was denied a direct appeal due to both counsel and court
error—and it “provide[d] a state court with authority to order [immediate] relief” in
the form of a new appeal. See Wall, 562 U.S. at 556 n.4; see also Collins v. Ercole,
667 F.3d 247, 251 (2d Cir. 2012) (“Read straightforwardly, this passage [in Wall]
says that ‘review’ occurs when a reviewing court reconsiders the work of the original
court to correct any error or infelicity committed by that original court—or rather,
submits that original court’s work to examination for potential revision.”). Indeed,
both § 2244(d)(2) and Wall reference “collateral review with respect to the pertinent
judgment or claim.” 28 U.S.C. § 2244(d)(2) (emphasis added); see also Wall, 562
U.S. at 553 (“Viewed as a whole, then, ‘collateral review’ of a judgment or claim
means a judicial reexamination of a judgment or claim in a proceeding outside of
the direct review process.” (emphasis added)). Garrett’s motion gave Arkansas the
opportunity to correct in its entirety the constitutional violation he now alleges in
federal court. Put differently, in Garrett’s case, “the need for federal habeas review
[would have] be[en] . . . obviated,” “further[ing] principles of ‘comity, finality, and
federalism.’” Wall, 562 U.S. at 558 (quoting Williams v. Taylor, 529 U.S. 420, 436
(2000)).7
7 The State argues that comity concerns do not support Garrett’s argument,
because he “could have exhausted his denial of direct appeal and denial of counsel
claims in a properly filed petition under” Rule 37, “before, or contemporaneously
with, the filing of his motion for a belated direct appeal.” Indeed, Arkansas has held
that, to preserve state postconviction relief, an “appellant should have filed [a] Rule
37 petition within ninety days of his judgment of conviction despite the possibility
that a motion for belated appeal might be filed.” Shoemate v. State, 5 S.W.3d 446,
448 (Ark. 1999). But the State does not suggest that Garrett was prohibited from

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Wall’s definition of “collateral review” encompasses statutory tolling for a
motion for belated appeal. If meritorious, such a motion mandates review of the
underlying conviction. And for Garrett, whose federal habeas claim is predicated
exclusively on the denial of his right to take a direct appeal, the motion plainly
sought a judicial review of the “pertinent judgment or claim.” 28 U.S.C.
§ 2244(d)(2).
We reverse the judgment of the district court and remand Garrett’s case for
further proceedings.
STRAS, Circuit Judge, dissenting.
When an Arkansas prisoner files his direct appeal late and asks the court to
consider it anyway, is the request an “application for . . . collateral review”? 28
U.S.C. § 2244(d)(2). The answer, as the question would suggest, is no.
I.
Harl Garrett had to file his federal habeas petition within one year of “the date
on which the [state] judgment became final by . . . the expiration of the time for
seeking [direct] review.” Id. § 2244(d)(1)(A). Certain events can pause the clock,
like a timeout in sports. Garrett claims that he called one when he filed a motion for
belated appeal. See Ark. R. App. P.–Crim. 2(e) (2019). The question for us is
whether the motion triggers “direct review,” the end of which starts the one-year
clock, or “collateral review,” which pauses it after it starts. 28 U.S.C.
§ 2244(d)(1)(A), (2). Only the latter would allow Garrett to beat the deadline by a
few days.
filing only a belated-appeal motion or filing one before a postconviction petition;
nor does the State contest that under Arkansas law, Garrett’s belated-appeal
motion—whether or not accompanied by a Rule 37 petition—provided the state
courts with authority to provide the relief Garrett now seeks in federal court.

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II.
The text provides the answer. See Jimenez v. Quarterman, 555 U.S. 113, 118
(2009). One way to pause the clock—what courts call tolling—is to file an
“application for State post-conviction” relief. 28 U.S.C. § 2244(d)(2). Arkansas has
a procedure for filing one, see Ark. R. Crim. P. 37.1(a), but the court and I agree that
a belated-appeal motion is not it.
We part ways on the second possibility, whether it is an “application for . . .
other collateral review.” 28 U.S.C. § 2244(d)(2). “[C]ollateral review” consists of
a “judicial reexamination of a judgment or claim in a proceeding outside of the direct
review process.” Wall v. Kholi, 562 U.S. 545, 553 (2011) (emphasis added). For
the court, the exception squeaks Garrett’s petition across the line before the buzzer.
In my view, it confirms that it had already sounded.
Any state-court judge knows that direct and collateral review provide different
tracks. The typical order is that a trial and direct appeal come first, then collateral
review. As the Supreme Court has explained, “something that is ‘collateral’ is
‘indirect,’” separate “from the main review” process. Id. at 551–52 (citation
omitted); see id. at 552 (comparing “collateral review” to “collateral attack,” defined
as an “attack on a judgment in a proceeding other than a direct appeal” (citation
omitted)). We do not have to look far for an example: habeas corpus is itself a form
of collateral review. See id. (noting that “[w]e have used the terms habeas corpus
and ‘collateral review’ interchangeably”); Teague v. Lane, 489 U.S. 288, 306 (1989)
(plurality opinion) (“Habeas corpus always has been a collateral remedy, providing
an avenue for upsetting judgments that have become otherwise final.” (citation
omitted)).
The catch-all phrase, “other collateral review,” 28 U.S.C. § 2244(d)(2), must
refer to other forms of postconviction review that share the same basic
characteristics. Otherwise, it would “ascrib[e] to [the] word[s] a meaning so broad
that [they are] inconsistent with [their] accompanying words.” Yates v. United

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States, 574 U.S. 528, 543 (2015) (plurality opinion) (citation omitted) (discussing
the canon noscitur a sociis, “a word is known by the company it keeps”). To keep
from “giving unintended breadth to” the words Congress used,8 it must capture
procedures that function the same way but go by a different name. Id. (citation
omitted). Just like Arkansas’s Rule 37 proceedings. See Ark. R. Crim. P. 37. Or
perhaps coram nobis in states like Arkansas, Nebraska, and South Dakota. See
Howard v. State, 403 S.W.3d 38, 42–43 (Ark. 2012) (explaining the requirements
for seeking a writ of error coram nobis); State v. El-Tabech, 610 N.W.2d 737, 747–
48 (Neb. 2000) (same); Garcia v. State, 843 N.W.2d 345, 348 (S.D. 2014) (same).
Kholi confirms this understanding. After the conclusion of direct review, the
defendant there asked the court to “reconsider” the possibility of running his
sentences concurrently rather than consecutively. Kholi, 562 U.S. at 548–49. The
question was whether the Rhode Island-specific motion he used was an
“application . . . for ‘collateral review.’” Id. at 554–56 (discussing R.I. Super. Ct.
R. Crim. Proc. 35). The answer was yes. It was collateral because consideration of
the motion occurred “outside of the direct review process.” Id. at 553. And it was
8 Getting the distinction right has implications beyond this case. Littered
within the federal habeas statutes are references to both direct and collateral review,
often in the same or adjoining provisions, so not blurring the line between the two is
critical to their operation. See 28 U.S.C. § 2244(b)(2)(A) (requiring dismissal of a
second-or-successive habeas claim unless it relies on “a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court” (emphasis
added)); id. §§ 2244(d)(1)(A), (C), 2255(f)(3) (recognizing that the limitation period
runs from the latest of when the judgment becomes “final by the conclusion of direct
review,” or the Supreme Court makes a new rule “retroactively applicable to cases
on collateral review” (emphasis added)); id. §§ 2254(e)(2)(A)(i), 2255(h)(2)
(referencing a “new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court” (emphasis added)); id. § 2255(a), (b)
(referring to a “collateral attack” (emphasis added)); id. § 2263(a) (requiring
petitioners to seek habeas corpus review no later than 180 days after the “final State
court affirmance of the conviction and sentence on direct review” (emphasis
added)); id. § 2263(b)(1)–(2) (tolling the limitation period for petitions for certiorari
filed to challenge a “final State court decision on direct review” and petitions for
“post-conviction review or other collateral relief” (emphasis added)).

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a review because it called for “a judicial reexamination . . . with a view to
amendment or improvement” through “correct[ion]” or “reduc[tion]” of his
sentence. Id. at 553–54 (citations omitted).
III.
This procedure looks nothing like that one. At most, a motion for a belated
appeal is an “application” for reinstatement of “direct review,” which is what Garrett
would have received if it had been successful. Id. at 551–52 (emphasis added).
Indeed, when the Supreme Court confronted a nearly identical Texas procedure for
authorizing an “out-of-time appeal,” it concluded that it “restore[d] the pendency of
the direct appeal,” rather than started “collateral review.” Jimenez, 555 U.S. at 120–
21 (alteration in original) (citation omitted). It “reset” the clock from the beginning,
as opposed to stopping it. Id. at 120. Given that what is direct cannot be collateral,
the same motion cannot do both. See Kholi, 562 U.S. at 552 (noting that collateral
review stands “aside from” direct review (citation omitted)).
Even if it could, Garrett’s belated-appeal motion still would not qualify as a
“review” of a “pertinent judgment or claim.” 28 U.S.C. § 2244(d)(2). Unlike the
sentence-reduction motion in Kholi, which could result in a “correct[ion]” or
“reduc[tion]” of the defendant’s sentence, granting a belated-appeal motion does not
“order relief from a judgment.” 562 U.S. at 554, 556 n.4 (emphasis added) (citation
omitted). It is a step in that direction, kind of like requesting instant-replay review.
See Danny v. Sec’y, Fla. Dep’t of Corr., 811 F.3d 1301, 1304 (11th Cir. 2016). But
just as a coach must follow the proper procedures and have challenges left to get it,
see, e.g., 2025 NFL Rulebook, NFL Football Operations, Rule 15, § 1, art. 1,
https://operations.nfl.com/the-rules/nfl-rulebook/#rule15, so must a belated-appeal
applicant follow Arkansas’s procedures and show good reason for the delay before
the actual review can begin, see McDonald v. State, 146 S.W.3d 883, 888–89 (Ark.
2004).

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Habeas is not horseshoes. Close doesn’t count. If it did, then the hypothetical
postconviction discovery and appointed-counsel motions in Kholi should have
qualified too. See Kholi, 562 U.S. at 556 n.4 (explaining that neither would); see
also Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1216 (8th
Cir. 2023) (explaining that “we are bound by the Supreme Court’s considered dicta
almost as firmly as by the Court’s outright holdings” (citation omitted)). After all,
both are a step toward getting review, with the latter motion inviting the same type
of cursory look at the merits that Garrett’s belated-appeal motion purportedly does.
But cf. Blue v. Medeiros, 913 F.3d 1, 7 (1st Cir. 2016) (explaining that “[e]ven [if] a
judge must take a peek at the underlying claim to see if the merits are hopeless,”
there is no collateral review without “authority to either alter the judgment or change
the sentence”). But none of these motions, neither the ones identified there nor
Garrett’s, is a “direct request[] for judicial review of a judgment” or “provide[s] a
state court with authority to order relief from” one. Kholi, 562 U.S. at 556 n.4. It
may get him closer, but it still falls short.
What little Arkansas courts have said about belated-appeal motions supports
my view. Dodson v. Norris, upon which the court relies, says that filing one is “not
part of the ordinary appellate review process” for exhausting state remedies before
federal habeas review. 288 S.W.3d 662, 665 (Ark. 2008) (emphasis added); see
O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999) (explaining that exhaustion
requires “one complete round of the State’s established appellate review process,”
but “state prisoners do not have to invoke extraordinary remedies”). Rather, it is
what happens when a party “fail[s] to follow” it. Dodson, 288 S.W.3d at 665.
Failing to follow the direct-review process, however, does not somehow transform
a motion to reinstate it into an “application for . . . collateral review.” 28 U.S.C.
§ 2244(d)(2). If anything, the discussion in Dodson strongly suggests that a belated-
appeal motion is neither “collateral” nor a “review,” exactly the conclusions I would
reach today.9 Id.
9 The court’s concerns about comity are puzzling. After all, it is hard to see
how comity favors cutting Garrett more slack for his federal habeas petition than he
would have received in state court, where Rule 37 petitions must be filed “within

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IV.
Without a pause in the one-year clock, Garrett’s habeas petition was untimely
the moment he filed it. For that reason, the district court made the right call by
dismissing it.
______________________________
ninety days of [a] judgment of conviction despite the possibility [of] a motion for
belated appeal.” Shoemate v. State, 5 S.W.3d 446, 448 (Ark. 1999) (emphasis
added). Besides, although “comity, finality, and federalism” are no doubt important
in the habeas context, Williams v. Taylor, 529 U.S. 420, 436 (2000), they cannot
“trump the best interpretation of the statutory text,” Patel v. Garland, 596 U.S. 328,
346 (2022). See Jimenez, 555 U.S. at 118 (recognizing that we enforce “plain”
statutory text “according to its terms”).

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