ALLEN, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS v. SIEBERT

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3 OCTOBER TERM, 2007
Syllabus
ALLEN, COMMISSIONER, ALABAMA DEPARTMENT
OF CORRECTIONS v. SIEBERT
on petition for writ of certiorari to the united
states court of appeals for the eleventh circuit
No. 06–1680. Decided November 5, 2007
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) tolls
its 1-year statute of limitations for filing a federal habeas petition while
“a properly filed application for State post-conviction or other collateral
review . . . is pending.” 28 U. S. C. § 2244(d)(2). Here, the District
Court dismissed respondent Siebert’s petition as untimely, reasoning
that, because his state postconviction relief petition had been rejected
on statute-of-limitations grounds, the state petition was not “properly
filed” for AEDPA tolling purposes. The Eleventh Circuit reversed and
remanded, holding that the state petition was “properly filed” because
the state time bar was not jurisdictional. The District Court again dis
missed the petition as untimely, relying on the holding in Pace v. DiGug
lielmo, 544 U. S. 408, that a state postconviction petition rejected as
untimely is not “properly filed” under AEDPA. Reversing, the Elev
enth Circuit found that the state procedural rule here, unlike the juris
dictional time bar in Pace, operates as an affirmative defense.
Held: Because Siebert’s state petition was untimely, it was not properly
filed under AEDPA, and his federal petition was not entitled to tolling.
The Eleventh Circuit’s carveout of time limits operating as affirmative
defenses is inconsistent with Pace, which was based not upon the juris
dictional nature of the time limit, but rather upon the distinction be
tween petitions rejected based on filing conditions, which are not prop
erly filed, and those rejected based on procedural bars that go to the
ability to obtain relief, which are. Whether a time limit is jurisdic
tional, an affirmative defense, or something in between, it is a “condition
to filing.” Artuz v. Bennett, 531 U. S. 4, 9. Excluding from Pace’s
scope those time limits that operate as affirmative defenses would leave
a gaping hole in what was meant to be a general rule, as statutes of
limitations are often affirmative defenses. What is more, whether a
time limit is jurisdictional or an affirmative defense is often a disputed
question. Pace precludes an approach that would have federal habeas
courts delving into the intricacies of state procedural law in deciding
whether a postconviction petition rejected by the state courts as un
timely was nonetheless “properly filed” under AEDPA.
Certiorari granted; 480 F. 3d 1089, reversed and remanded.

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4 ALLEN v. SIEBERT
Per Curiam
Per Curiam.
Daniel Siebert was convicted and sentenced to death in
the State of Alabama for the murder of Linda Jarman.
Siebert’s conviction and sentence were affirmed on direct ap
peal, and the certificate of judgment issued on May 22, 1990.
This Court denied certiorari on November 5, 1990. Siebert
v. Alabama, 498 U. S. 963. On August 25, 1992, Siebert filed
a petition for postconviction relief in Alabama state court.
The state courts denied the petition as untimely, however,
because it was filed approximately three months after the
expiration of the then-applicable 2-year statute of limita
tions, Ala. Rule Crim. Proc. 32.2(c) (2000–2001), which began
to run from the date the certificate of judgment issued.*
The Alabama Supreme Court denied certiorari on Septem
ber 15, 2000. Siebert did not seek review in this Court. On
September 14, 2001, Siebert filed a petition for a federal writ
of habeas corpus, see 28 U. S. C. § 2254, in the District Court
for the Northern District of Alabama.
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) established a 1-year statute of limitations for
filing a federal habeas petition. § 2244(d)(1). The limita
tions period is tolled, however, while “a properly filed appli
cation for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending.”
§ 2244(d)(2). Because Siebert’s direct appeal became final
before AEDPA became effective, the 1-year limitations pe
riod began to run from April 24, 1996, AEDPA’s effective
date. See Carey v. Saffold, 536 U. S. 214, 217 (2002). Thus,
*At the time Siebert’s petition was before the Alabama courts, Rule
32.2(c) provided that “the court shall not entertain any petition,” with
certain exceptions not applicable here, “unless the petition is filed . . .
within two (2) years after the issuance of the certificate of judgment by
the Court of Criminal Appeals.” The Rule has since been amended to
provide for a 1-year limitations period, but is otherwise unchanged. See
Ala. Rule Crim. Proc. 32.2(c) (2007–2008).

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Cite as: 552 U. S. 3 (2007) 5
Per Curiam
absent tolling, Siebert’s federal habeas petition would be un
timely by over four years.
The District Court dismissed Siebert’s habeas petition as
untimely, reasoning that an application for state postconvic
tion relief is not “properly filed” if it was rejected by the
state court on statute-of-limitations grounds. The Court of
Appeals reversed, however, holding that Siebert’s state post
conviction petition was “properly filed” within the meaning
of § 2244(d)(2), because the state time bar was not jurisdic
tional and the Alabama courts therefore had discretion in
enforcing it. See Siebert v. Campbell, 334 F. 3d 1018, 1030
(CA11 2003) (per curiam). The Court of Appeals accord
ingly remanded to the District Court to consider the merits
of Siebert’s petition.
While Siebert’s habeas petition was pending on remand in
the District Court, we decided Pace v. DiGuglielmo, 544
U. S. 408 (2005). In Pace, we held that a state postconvic
tion petition rejected by the state court as untimely is not
“properly filed” within the meaning of § 2244(d)(2). Id., at
414, 417. Relying on Pace, the District Court again found
that Siebert’s state postconviction petition was not “properly
filed,” and dismissed his federal habeas petition as untimely.
The Court of Appeals, however, reversed and remanded. In
a one-paragraph opinion, the court distinguished Pace on the
ground that Rule 32.2(c), unlike the statute of limitations at
issue in Pace, “operate[s] as an affirmative defense.” 480
F. 3d 1089, 1090 (CA11 2007). Thus, the court found its prior
holding—that Siebert’s state postconviction petition was
“properly filed” because the state court rejected it on a non
jurisdictional ground—stood as the law of the case. Ibid.
The Court of Appeals’ carveout of time limits that operate
as affirmative defenses is inconsistent with our holding in
Pace. Although the Pennsylvania statute of limitations at
issue in Pace happens to have been a jurisdictional time bar
under state law, see Commonwealth v. Banks, 556 Pa. 1, 5–6,

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6 ALLEN v. SIEBERT
Per Curiam
726 A. 2d 374, 376 (1999), the jurisdictional nature of the time
limit was not the basis for our decision. Rather, we built
upon a distinction that we had earlier articulated in Artuz v.
Bennett, 531 U. S. 4 (2000), between postconviction petitions
rejected on the basis of “ ‘filing’ conditions,” which are not
“properly filed” under § 2244(d)(2), and those rejected on the
basis of “procedural bars [that] go to the ability to obtain
relief,” which are. Pace, supra, at 417 (citing Artuz, supra,
at 10–11). We found that statutes of limitations are “filing”
conditions because they “go to the very initiation of a peti
tion and a court’s ability to consider that petition.” Pace,
544 U. S., at 417. Thus, we held “that time limits, no matter
their form, are ‘filing’ conditions,” and that a state post
conviction petition is therefore not “properly filed” if it was
rejected by the state court as untimely. Ibid. (emphasis
added).
In short, our holding in Pace turned not on the nature of
the particular time limit relied upon by the state court, but
rather on the fact that time limits generally establish “condi
tions to filing” a petition for state postconviction relief.
Whether a time limit is jurisdictional, an affirmative defense,
or something in between, it is a “condition to filing,” Artuz,
supra, at 9—it places a limit on how long a prisoner can
wait before filing a postconviction petition. The fact that
Alabama’s Rule 32.2(c) is an affirmative defense that can be
waived (or is subject to equitable tolling) renders it no less
a “filing” requirement than a jurisdictional time bar would
be; it only makes it a less stringent one. Indeed, in Pace we
cited the very statute at issue in this case as an example of
such a “filing” requirement. See 544 U. S., at 417, n. 7 (cit
ing Ala. Rule Crim. Proc. 32.2(c) (2004–2005)).
Excluding from Pace’s scope those time limits that operate
as affirmative defenses would leave a gaping hole in what we
plainly meant to be a general rule, as statutes of limitations
are often affirmative defenses. See, e. g., Fed. Rule Civ.

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Cite as: 552 U. S. 3 (2007) 7
Per Curiam
Proc. 8(c); Kirkland v. State, 143 Idaho 544, 546, 149 P. 3d
819, 821 (2006) (“The statute of limitations for petitions for
post-conviction relief is not jurisdictional. It ‘is an affirma
tive defense that may be waived if it is not pleaded by the
defendant’ ” (quoting Cole v. State, 135 Idaho 107, 110, 15
P. 3d 820, 823 (2000); citation omitted)); People v. Boclair,
202 Ill. 2d 89, 101, 789 N. E. 2d 734, 742 (2002) (holding that
time bar for filing postconviction petition is “an affirmative
defense and can be raised, waived, or forfeited, by the
State”). What is more, whether a time limit is jurisdictional
or an affirmative defense is often a disputed question, as the
interpretive history of Rule 32.2(c) itself illustrates, see
Ex parte Ward, 46 So. 3d 888, 894 (2007) (noting confusion
in the Alabama lower courts over whether Rule 32.2(c) is
jurisdictional). Under the Court of Appeals’ approach, fed
eral habeas courts would have to delve into the intricacies of
state procedural law in deciding whether a postconviction
petition rejected by the state courts as untimely was none
theless “properly filed” under § 2244(d)(2). Our decision in
Pace precludes such an approach.
We therefore reiterate now what we held in Pace: “When
a postconviction petition is untimely under state law, ‘that
[is] the end of the matter’ for purposes of § 2244(d)(2).” 544
U. S., at 414 (quoting Carey, 536 U. S., at 226; alteration in
original). Because Siebert’s petition for state postconvic
tion relief was rejected as untimely by the Alabama courts,
it was not “properly filed” under § 2244(d)(2). Accordingly,
he was not entitled to tolling of AEDPA’s 1-year statute of
limitations.
The petition for certiorari is granted. The judgment of
the Court of Appeals is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.

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8 ALLEN v. SIEBERT
Stevens, J., dissenting
Justice Stevens, with whom Justice Ginsburg joins,
dissenting.
There is an obvious distinction between time limits that
go to the very initiation of a petition, and time limits that
create an affirmative defense that can be waived. Compare
the majority and dissenting opinions in John R. Sand &
Gravel Co. v. United States, 457 F. 3d 1345 (CA Fed. 2006),
cert. granted, 550 U. S. 968 (2007). The time limit under
consideration in Pace v. DiGuglielmo, 544 U. S. 408 (2005),
was of the former kind—as the Court’s opinion expressly
noted. See id., at 417 (discussing “time limits, which go to
the very initiation of a petition and a court’s ability to con
sider that petition”). The time limit at issue in this case is
of the latter, distinguishable kind—as the Court of Appeals
correctly stated. 480 F. 3d 1089, 1090 (CA11 2007) (holding
that Pace did not address statutory tolling for “a statute of
limitations that operated as an affirmative defense”).
It is true that there is language in the majority opinion in
Pace that is broad enough to cover both kinds of limitations
provisions, but only the former (those that do not operate as
affirmative defenses) can even arguably provide a reasonable
basis for concluding that an untimely petition has not been
“properly filed” within the meaning of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.
1214.* I therefore respectfully dissent.
*I continue to believe, as stated in my dissent in Pace, 544 U. S., at 427,
that state timeliness bars that operate like procedural bars (for example,
those that require the courts to consider enumerated exceptions) should
not determine whether a state postconviction petition is “properly filed”
under AEDPA. Even accepting Pace, however, this case is distinguish
able and should not be summarily reversed.