Dаniel Siebert appeals from the dismissal of his petitions for habeas corpus under 28 U.S.C. § 2254. Although his case reaches us some eleven years after he first sought collateral review of his convictions and sentences of death, the courts have to date determined only that he is subject to procedural bars and therefore have never *1020 allowed the merits of his claims to control. 1 The district courts dismissed Siebert’s petitions on the ground that they were untimely under the one year statute of limitations established by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), now codified at 28 U.S.C. § 2244(d)(1). Siebert had argued that the one-year deadline did not bar his petitions because a separate AEDPA provision, 28 U.S.C. § 2244(d)(2), tolled the limitations period for the time during which his “properly filed” applications for post-conviction relief were pending in the Alabama courts.
Because state courts had held in these proсeedings that Siebert had missed the expiration of Alabama’s own post-conviction statute of limitations, the district courts concluded that Siebert’s state petitions were not “properly filed” and that AEDPA’s tolling provision thus did not apply. The question before us is therefore whether Siebert’s Alabama petitions, which were accepted by the courts but ultimately found to have been filed late, should be considered “properly filed” within the meaning of AEDPA’s tolling provision and the Supreme Court’s interpretation of that term in
Artuz v. Bennett,
BACKGROUND
Siebert was tried in two separate prosecutions, one in Talladega County (for the murder of Linda Jarman) and one in Lee County (for the murder of Sherri Weathers and her two minor sons). He was found guilty of all charges, and at the end of each of his trials he was sentenced to death, twice. Siebert appealed his two convictions and sentences to the Alabama Court of Criminal Appeals, which issued separate decisions addressing different challenges Siebert had raised in each case. The Alabama Supreme Court subsequently denied relief, publishing its own analysis of many of Siebert’s claims in the Lee County case,
Ex parte Siebert,
In 1992 Siebert filed the two petitions that are relevant here, challenging his Lee County and Talladega County convictions and sentences separately in each county’s circuit court under Rule 32 of the Alabama Rules of Criminal Procedure. The state responded with separate answers in the months following each of Siebert’s petitions, сonceding that Siebert was entitled to an evidentiary hearing on his claim that counsel had provided ineffective assistance. The petitions were consolidated for an evidentiary hearing in the Lee County Circuit Court. After Siebert filed amendments to both petitions on March 29, 1995, the trial court commenced hearing evidence on April 3, 1995.
The next day, the state asserted for the first time that Siebert’s applications were barred because he had failed to meet the two-year statute of limitations then generally applicable to most post-conviction *1021 claims in Alabama. 2 After continuing to take evidence on April 4 and 5, as well as on September. 26, 1996 and January 21, 1997, the circuit court adopted the state’s proposed, 87-page memorandum opinion as its final judgment, denying Siebert relief on a variety of substantive and procedural grounds. Among the many findings of the cirсuit court was its determination that relief was precluded by Rule 32’s statute of limitations.
The Court of Criminal Appeals affirmed, finding no merit in Siebert’s argument that the two-year statute of limitations set forth in Ala. R.Crim. P. 32.2(c) must be raised as an affirmative defense in the state’s first responsive pleading.
Siebert v. State,
On September 14, 2001, Siebert filed two different federal habeas petitions, one in the Middle and one in the Northern District of Alabama. Both district courts held his petitions untimely under AEDPA because they were not filed within a year of that statute’s effective date. The district court decisions, although accepting the premise that a state time bar must be firmly established and regularly followed to render a late petition improperly filed, nonetheless rejected Siebert’s claim that the Alabama statute of limitations failed to meet this standard. The district court decisions also declined to apply the doctrine of equitable tolling on Siebert’s behalf. Both district courts thereafter granted Siebert certificates of appealability. 3
DISCUSSION
Under 28 U.S.C. § 2244(d)(1), persons in custody pursuant to a judgment of a state court may file petitions for habeas corpus within one year of any of four dates specified by the statute.
4
Because Siebert’s convictions became final prior to the effective date of AEDPA, he had until April 23, 1997 to file a federal habeas petition.
Wilcox v. Florida Dept. of Corrs.,
*1022 The 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 shall not be counted toward any period, of limitation under this subsection.
28 U.S.C. § 2244(d)(2). Siebert’s entitlement to have the limitations period tolled thus depends on whether his applications for state post-conviction review under Ala. R.Crim. P. 32 were “properly filed.” If they were, his federal habeas petitions are not untimely because the federal limitations period would have been tolled from April 24, 1996 until September 15, 2000, the date on which the Alabama Supreme Court denied review. Since Siebеrt filed on September 14, 2001, he will have met the one-year deadline.
I. “Properly Filed” Inquiry Under AEDPA’s Tolling Provision
The first round of jurisprudence construing the meaning of “properly filed” produced a circuit split. A majority of circuits determined that an application for post-conviction relief could be “properly filed” even if claims asserted therein were procedurally barred or otherwise meritless.
Habteselassie v. Novak,
Two other circuits, however, held that applications containing claims barred under state procedural rules are not “properly filed,” regardless of whether a procedural bar constituted a filing requirement
per se. Dictado v. Ducharme,
In
Artuz v. Bennett,
The Court approvingly cited decisions from the courts of appeals distinguishing between the “properly filed” inquiry and a state court’s determination that claims were procedurally barred.
Id.
at 8,
Neither the Supreme Court’s
Artuz
decision nor our own
Weekley
decisions directly addressed non-compliance with a state post-conviction statute of limitations. Prior to
Artuz,
however, we had held that an application must meet state filing deadlines in order to toll the AEDPA statute of limitations.
Webster v. Moore,
*1024 Our inquiry in Webster lacked the guidance provided by the Supreme Court’s discussion in Artuz of the meaning of “laws and rules governing filings.” The Court gave some content to this phrase by discussing several qualifying examples and then setting forth a broad distinction:
[Such rules] usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. In some jurisdictions, the filing requirements also include, for example, preconditions imposed on particular abusive filers, or on all filers generally, cf. 28 U.S.C. § 2253(c) (1994 ed., Supp. IV) (conditioning the taking of an appeal on the issuance of a “certificate of appealability”). But in common usаge, the question whether an application is “properly filed” is quite separate from the question whether the claims contained, in the application are meritorious and free of procedural bar.
Id.
at 8-9,
In a footnote, the Court added that it would “express no view on the question whether the existence of certain exceptions to a timely filing requirement can prevent a late application from being considered improperly filed.”
Id.
at 9 n. 2,
We note that the context in which Artuz refers to “time limits upon [a petition’s] delivery” — alongside references to the form of a document, the proper court and office for filing, and fees — addresses a narrow category of rules setting forth prerequisites to the commencement of suit. Compliance with a statute of limitations is not generally treated as a precondition to a suit’s commencement, but rather as a condition that must be satisfied to win relief on a particular claim (or all claims). By tying the term “time limits” to “delivery,” Artuz might be read to refer to deadlines governing service upon an opposing party, which, unlike timeliness, is ordinarily a prerequisite to the formal commencement of suit. The Court’s discussion of time limits on “delivery” might also suggest a concern with requirements that papers be submitted within the hours of business maintained by a clerk’s office.
The
Artuz
Court did not further amplify the meaning of its references to “time limits upon ... delivery” and “timely filing requirement^].” Nor need we presently decide whether the Supreme Court’s language refers only to rules addressing the mechanics of delivery, such as deadlines for service or hours for lodging papers. Because issues “pertaining to the timeliness of a prisoner’s application for state
*1025
post-conviction relief are not homogenous,”
Habteselassie,
II. Discretionary Application of Alabama’s Post-Conviction Time Bar
The state argues that the Rule 32 statute of limitations is a jurisdictional bar that may be noticed at any stage of proceedings and always requires dismissal. This contention appears to be an accurate statement of Alabama law as it now stands. Under
Williams v. State,
For the purpose of applying AEDPA’s tolling provision, however, our point of reference is not Alabama law as it now exists. Under the judicially developed doctrine of procedural default,
see Coleman v. Thompson,
We first note that the only case cited by the state in arguing that the Alabama statute of limitations is jurisdictional is
Williams,
which itself cited as positive authority only one decision construing the Rule 32 time bar: Siebert’s own case.
8
The other precedents cited by
*1026
Williams
were four cases discussing statutes of limitation in the context of the state’s prosecution of an accused.
Williams,
Second, we note that
Williams
expressly manifests the appeals court’s awareness that it was announcing a new rule. In characterizing a failure to file within the two-year limitations period as a jurisdictional defect, the court stated that “[a]ny previous holdings to the contrаry are hereby expressly overruled,”
Williams,
Finally, our conclusion that the jurisdictional character of the time bar was not firmly established at the time of Siebert’s Rule 32 proceedings draws support from the opinions denying relief on his petitions. First, neither the circuit nor the appeals court “dismissed” the’petitions, as would be the proper disposition upon a determination that no jurisdiction exists,
see, e.g., Williams,
For these reasons, we believe that although the time bar may now be of jurisdictional import under Williams, this was not the case at the time of Siebert’s Rule 32 proceedings.
Alabama law made clear instead that noncompliance with the Rule 32 time bar did not divest courts of discretion to entertain late petitions should they choose to do so, at least in the absence of an appropriate pleading by the state of a limitations defense. This wаs particularly clear with respect to courts’ power to rule on the merits of a late-filing petitioner’s claims as an alternative ground for denying relief. In
Jackson v. State,
The Alabama courts’ former discretion to entertain late petitions also encompassed the power to grant relief. In
Howard v. State,
In decisions prior to and contemporaneous with Siebert’s proceedings, the legal analyses set forth by the Court of Criminal Appeals likewise implied the courts’ power to vacate convictions or reduce sentences on the basis of claims raised in untimely petitions. In
Howard,
by remanding for further proceedings, the appeals court contemplated the possibility that the circuit court would vacate the petitioner’s conviction or permit him to take an out-of-time appeal. In
Callahan v. State,
Although the court granted relief in neither Callahan nor Jones, its extensive and manifold analysis of the petitioners’ ineffective assistance claims makes clear that relief would have been proper if compelled by the substantive law addressing the Sixth Amendment right to counsel. The state contends that Jones and Callahan do not show that Alabama courts were authorized to dispense with the statute of limitations, but merely demonstrate that the court failed to notice the limitations period’s expiration in these particular cases. The possibility that the court neglected in these cases to confirm the petitions’ timeliness, however, actually demonstrates the very point we find most relevant in our “properly filed” inquiry: untimeliness did not mandate a petition’s dismissal, but rather was a matter within the court’s discretion to ignore. We note that the lengthy opinions published by the Court of Criminal Appeals in Jones and Callahan set forth comprehensive legal analyses. This approach does not suggest a decisional process in which the court simply seized upon a ground other than the statute of limitations as the most efficient means to dispose of the claims before it. We instead discern in these cases a resolve on the appeals court’s part to address the procedural and substantive aspects of the petitioners’ cases in full. The comprehensive analyses set forth reflect, if not necessarily a deliberate decision to permit untimely filing, at least an awareness that untimeliness, were it shown, would not compel the court to refrain from a sustained treatment of the merits. It thus can no more be said that the court failed to notice the running of the statute than that it chose to disregard it.
In this case, the issue of timeliness first arose some three years after Siebert filed his petitions. The circuit court rejected Siebert’s argument that the state had waived the statute of limitations defense by failing to plead it sooner. Under the “relation back” doctrine, it held, the state should be allowed to raise the time bar since Siebert had been allowed to amend his own petitions. The Alabama Court of Criminal Appeals upheld this ruling, but it did so on the basis of the circuit court’s
*1029
discretionary authority to allow amendments to pleadings, without determining whether the state was entitled as a matter of law to the benefit of a statute-of-limitаtions defense. Although the court rejected Siebert’s argument that the state waived the defense by not raising it in its “first responsive pleading,” the court treated waiver as a question of Siebert’s right to timely notice rather than of any state entitlement.
Siebert,
Because of the role of judicial discretion in the limitations period’s application in this case, we need not presently decide what effect untimeliness would have on the “properly filed” inquiry were the state to have pled the limitations period in a manner clearly recognized by Alabama’s courts to secure its entitlement to rely on this defense. Here, the time bar’s application was not a matter of state entitlement but of court discretion, and the same discretion relied upon to impose the time bar could also have afforded a basis to reach the merits of Siebert’s claims, as Howard, Jackson, Callahan, and Jones make clear. It cannot be said that Alabama law required the courts to refrain from adjudicating the merits of the claims raised in Siebert’s untimely petitions. We turn then to the question of what bearing a time bar within a court’s discretion to impose has on the question of proper filing under Artuz.
III. Discretionary Time Bars as “Conditions to Obtaining Relief’
We are unable to locate any authority addressing the intersection between AED-PA’s tolling provision and statutes of limitation
permitting
courts, in their discretion, to examine the merits of claims raised in late petitions. Cases applying the tolling provision in other circuits have predominantly addressed state rules
requiring
courts to determine whether an
*1030
exception to a limitations period applies. Two of three circuits to have addressed this issue have held that failure to meet a filing deadline will not prevent a petition from tolling AEDPA’s limitations period if the state time bar provides exceptions that cannot be applied without at least a limited merits assessment.
Dictado v. Ducharme,
The Seventh Circuit has criticized this approach in holding that Illinois’ statute of limitations, by permitting late filings on the part of petitioners able to satisfy what the Seventh Circuit characterized as a “miscarriage of justice” standard, does not render all untimely petitions “properly filed.”
Brooks v. Walls,
In this case, we believe the discretion left to Aabama courts to enforce the time bar compels the conclusion that timeliness was not a prerequisite to filing
per se.
Since the courts’ discretion meant a petition might be entertained even when filed late, the two-year deadline did not create a “timely
filing requirement.” Artuz,
Our approach is consistent with the Fifth Circuit’s in
Smith.
As with the Louisiana law considered in that case, timeliness under Ala. R.Crim. P. 32.2(c) was not a “prerequisite[ ]” that had to be sаtisfied before Aabama courts would “allow a petition to be filed and accorded
some level
of judicial review.”
Smith,
The same must be said of Alabama courts’ one-time discretion to entertain untimely petitions. The entertainment of late petitions in
Howard, Jackson,
Jones, and
Callahan
provided prisoners with “some level of judicial review.”
Smith,
Our treatment of Alabama’s formerly discretionary time bar is also consistent with the Seventh Circuit’s application of AEDPA’s tolling provision in
Brooks.
In an opinion affirming the
Brooks
decision on rehearing, the Seventh Circuit panel revisited a hypothetical set forth in its first decision, whereby state law might provide that “any meritorious filing” would be deemed timely.
Brooks v. Walls,
We need go no further in addressing the doctrine of adequate and independent state grounds discussed in
Brooks.
As the Seventh Circuit explained, this doctrine has been applied in eases assessing whether a federal habeas petitioner’s procedural default of state remedies precludes collateral federal review absent a showing of “cause” and “prejudice.”
Brooks,
In light of this instruction that controlling force be given to the literal meaning of the phrase “properly filed,” we find it dispositive that the exercise of discretion to enforce or not enforce a post-conviction time bar itself constitutes a sufficient quantum of judicial review to effectively ratify the form and manner of a petition’s filing. When a petition has thus empowered a court to act directly upon the claims it raises, we believe it must be regarded as “properly filed.” Accordingly, we hold that Siebert’s non-compliance with Rule 32’s time bar, since it was treated by the Alabama courts as immaterial to their own authority to act upon his claims, did not render his post-conviction applications “[imjproperly filed.”
Since timeliness is the only issue raised by the state in arguing that Siebert failed to comply with the laws and rules governing filings under Rule 32, we conclude that his petitions were “properly filed” within the meaning of § 2244(d)(2). An application for post-conviction relief, once properly filed, remains “pending” for the purpose of tolling the onе-year federal limitations period until the final disposition of any appeals to higher state courts.
Carey v. Saffold,
CONCLUSION
For the foregoing reasons, we VACATE the district court orders dismissing Siеbert’s petitions and REMAND for further proceedings consistent with this opinion.
VACATED AND REMANDED.
Notes
. Alabama’s courts commented on the merits of Siebert's claims, but only as an alternative ground of decisions that also held his petitions untimely.
See Siebert v. State,
. The statute of limitations — -which is actually codified not by statute but by an Alabama Supreme Court rule — was later shortened to one year by an order effective August 1, 2002.
. The certificate of appealability granted by the Middle District of Alabama followed its denial of Siebert's motion under Fed.R.Civ.P. 59(e) to alter or amend the judgment denying habeas relief, as wеll as a subsequent grant of Siebert's motion to reopen the time for taking an appeal. The state argues on appeal that only the denial of Siebert’s Rule 59 motion, not the underlying dismissal of his habeas petition, is before this Court. We reject this argument in light of the procedural history recounted by the district court in its order reopening the time for taking an appeal, as well as its grant of a certificate of appealability as to both its Rule 59 order and the underlying habeas dismissal.
.In addition, equitable tolling of the limitations period is in some instances appropriate under circumstances not encompassed by the statutory exceptions to the time bar.
See Drew v. Department of Corrs.,
. The United States Reports misspell petitioner Jeffrey Weekley’s name in captioning the Supreme Court order vacating our opinion.
. In the third court of appeals case requiring рetitioners’ applications to be free of procedural bar, the Ninth Circuit had held its mandate pending the Supreme Court’s decision in
Artuz. See Dictado v. Ducharme,
.In Webster, we presumed the limitations period established by Fla. R.Crim. P. 3.850 to be mandatory unless a prisoner met one of several narrow and specifically described exceptions enumerated by the rule. For reasons discussed infra, we believe the limitations period established by Ala. R.Crim. P. 32.2 was not mandatory in this sense when it was applied in Siebert's case.
. Despite the reliance placed on it by
Williams,
the decision denying Siebert relief did not discuss whether the Rule 32 statute of limitations was a jurisdictional bar. Rather,
*1026
Siebert himself argued that Rule 32.2(c) was
not
jurisdictional, but the appeals court refused to address this contention because he had not addressеd it to the trial court.
Siebert v. State,
. The Court of Criminal Appeals noted that the record showed the district attorney requesting at the conclusion of the evidentiary hearing to "renew” the state’s motion to dismiss the petition as time-barred.
Jackson,
. In
Siebert,
the court also cited a rule providing that "[l]eave to amend shall be freely granted." Ala. R.Crim. P. 32.7(d). The appeals court appears to have been referring, however, to the leave granted Siebert to amend his own petitions shortly before the evidentiary hearing convened some three years after his original filing. The next sentence of its decision reads: "The granting or denial of a motion to amend a Rule 32
petition
is within the sound discretion of the trial court, whose ruling on such a motion will be reversed only for an abuse of discretion.”
Siebert,
. The Fifth Circuit also noted that it could find no case in which the Texas courts had held the statutory bar to prohibit the filing of a motion for reconsideration.
Emerson,