Fielder v. Varner

• Court: Court of Appeals for the Third Circuit
• Decided: August 9, 2004
• Docket: 01-1463
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

8-9-2004

Fielder v. Varner Precedential or Non-Precedential: Precedential

Docket No. 01-1463

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Recommended Citation "Fielder v. Varner" (2004). 2004 Decisions. Paper 376. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/376

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL J. Scott O’Keefe (argued) Suite 1100 UNITED STATES COURT OF 1500 Walnut Street APPEALS Philadelphia, PA 19102 FOR THE THIRD CIRCUIT Attorney for Appellant

David C. Glebe (argued) No. 01-1463 Thomas W. Dolgenos Robert M. Falin Office of the District Attorney ANTHONY FIELDER, 1421 Arch Street Philadelphia, PA 19102 Appellant Attorney for Appellee

v.

BENJAMIN VARNER; OPINION OF THE COURT THE DISTRICT ATTORNEY OF COUNTY OF PHILADELPHIA; ATTORNEY GENERAL OF THE ALITO, Circuit Judge: STATE OF PENNSYLVANIA Anthony Fielder, a state prisoner serving a life sentence, appeals the dismissal of his application for a writ of ON APPEAL FROM THE UNITED habeas corpus. The District Court STATES DISTRICT COURT FOR THE approved and adopted the report and EASTERN DISTRICT OF recommendation of a Magistrate Judge PENNSYLVANIA who concluded that Fielder’s petition in its entirety was untimely under 28 U.S.C. § (Dist. Court No. 00-cv-02599) 2244(d)(1). We hold that one of Fielder’s District Court Judge: Honorable Louis claims (his claim of prosecutorial Charles Bechtle misconduct) was untimely and that his other claim (which sought a new trial based on newly discovered evidence) is Argued: January 12, 2004 not cognizable under the federal habeas statute. We therefore affirm the order of Before: ALITO, CHERTOFF, and the District Court, albeit in part on BECKER, Circuit Judges. different grounds.

(Opinion Filed: August 9, 2004)

1 I. the prosecutor had committed acts of misconduct during the trial. However, the In 1990, Fielder was arrested and Superior Court affirmed, and the state charged with murdering Jack Fauntleroy supre m e c o u r t d e n ie d a lloca tu r. outside a bar at 52nd and Market Streets in Commonwealth v. Fielder, 612 A.2d 1028 Philadelphia in September 1989. As (Pa. Super. 1992), allocatur denied, 621 summarized by the trial judge, the A.2d 577 (Pa. 1993) (table). evidence showed the following. Shortly before Fauntleroy was killed, he became Fielder initiated a proceeding under involved in an argument with a man Pennsylvania’s Post Conviction Relief Act named Stefan. Stefan then went into the (PCRA) in which claims of ineffective bar and emerged with Fielder, who began assistance of counsel and after-discovered to argue with Fauntleroy. Several minutes evidence were raised. Fielder’s after- later, Antonio Goldsmith, a friend of discovered evidence claim was based on Fauntleroy, entered into the argument as the discovery of an alleged eyewitness to well. After the parties came to blows, the shooting, Daran Brown, who stated Fielder reentered the bar and returned to that a man whom he knew by the name of the street with a .38 caliber handgun. As Nike was the one who actually shot Fauntleroy was fleeing, Fielder shot and Fauntleroy. According to Brown, Fielder fatally wounded him. and Fauntleroy were walking down Market Street when “Nike came running down the Two witnesses gave testimony that street” behind them and “started shooting tended to show that Fielder was the one in their direction.” He continued: who shot Fauntleroy. Latonia Shawyer, who was waiting for a bus and did not T his is whe n Za rk previously know either Fauntleroy or [Fauntleroy] was shot and Fielder, testified that she saw Fielder shoot fell down in the middle of Fauntleroy. Goldsmith testified that he ran Market Street. After Zark from the scene when Fielder came out of got shot another guy who I the bar with a gun. Goldsmith stated that, didn’t know chased Nike up while running, he heard two shots and that the street with a gun. At when he turned around, he saw that Fielder this point I left the scene. was chasing him with the gun in his hand. App. 16. The jury found Fielder guilty of Brown stated that he did not come first-degree murder and possession of an forward with this information at the time instrument of crime, and he was sentenced of the shooting because he did want to get to imprisonment for life on the murder involved and because on the street “the conviction and to a lesser concurrent term general feeling is that it is best if you mind for the weapons conviction. Fielder your own business.” App. 16. According appealed, claiming among other things that to Brown, he did not learn that Fielder had

2 been convicted for the shooting until Eastern District of Pennsylvania. Fielder October 1997. Id. argued, first, that the Pennsylvania courts erred when they rejected his claim of The PCRA court denied the newly-discovered evidence and, second, petition, and Fielder appealed and that the prosecutor engaged in misconduct advanced two arguments. First, he at trial. The Magistrate Judge to whom the contended that the PCRA court should petition was referred concluded that the have conducted an evidentiary hearing entire petition was untimely. The regarding the after-discovered evidence. Magistrate Judge began by noting that Second, he argued that the attorney who Fielder’s conviction had become final represented him in the trial court during before April 24, 1996, the effective date of the PCRA proceeding was ineffective for the Antiterrorism and Effective Death failing to contact Brown. The Superior Penalty Act of 1996 (AEDPA), which Court rejected both arguments. The Court imposed the present statute of limitations held that it was not likely that Brown’s for federal habeas petitions, 28 U.S.C. § testimony would have compelled a 2244(d)(1). As a consequence, the different result if it had been offered at Magistrate Judge stated, Fielder’s time to trial and that therefore the standard under file his petition began to run one year Pennsylvania law for granting a new trial thereafter, on April 24, 1997. See Burns v. based on after-discovered evidence was Morton, 134 F.3d 109, 110 (3d Cir. 1998). not met. The Court then concluded that The Magistrate Judge concluded that the because the underlying after-discovered one-year period for filing the petition was evidence claim lacked merit, Fielder’s tolled under 28 U.S.C. §2244(d)(2) from lawyer could not be deemed ineffective the date when Fielder filed his PCRA “for failing in his efforts to find Daran petition (January 14, 1997) until the date Brown.” when the Superior Court affirmed the The Superior Court’s decision was dismissal of that petition (June 10, 1999). issued on June 10, 1999, and Fielder failed When the time again began to run after to file a timely allocatur petition with in this period, the M agistrate Judge the Pennsylvania Supreme Court. Instead, calculated, approximately three and one- after the expiration of the time for filing an half months of the one-year period allocatur petition, he submitted a request remained, and therefore Fielder had until for permission to seek allocatur on a nunc “the end of October 1999” to file the pro tunc basis. The state supreme court federal petition. Because he did not file dismissed that request in an order dated until May 2000, the Magistrate held, the October 25, 1999. petition was time-barred. On May 17, 2000, Fielder filed an The District Court approved and application for a writ of habeas corpus in adopted the report and recommendation the United States District Court for the without elaboration and therefore

3 dismissed the application. The District (A) the date on which Court also denied a certificate of the judgment became final appealability, but a motions panel of our by the conclusion of direct Court granted a certificate and set out review or the expiration of issues to be addressed in the briefs. The the time for seeking such order of the motions panel stated: review; The parties shall address (B) the date on which whether appellant’s § 2254 the impediment to filing an petition was timely filed. application created by State Specifically, the parties shall action in violation of the address (1) whether the Constitution or laws of the cognizability of Fielder’s United States is removed, if claim of newly discovered the applicant was prevented evidence affects the from filing by such State application of § action; 2244(d )(1)(D), and (2) (C) the date on which whether § 2244(d)(1)(D) the constitutional right applies to the entire petition a s s e r te d wa s initially if the time period under § recognized by the Supreme 2244(d)(1)(A) for trial Court, if the right has been claims had not expired at the newly recognized by the time of the discovery of the Supreme Court and made factual predicate of the retroactively applicable to claim of new evidence. cases on collateral review; App. at 10. or II. (D) the date on which the factual predicate of the A. claim or claims presented The timeliness of Fielder’s federal could have been discovered habeas petition turns on the meaning of 28 through the exercise of due U.S.C.. § 2244(d)(1) and thus presents a diligence. question of law subject to plenary review. 28 U.S.C. § 2244(d)(1). See Merritt v. Blaine, 326 F.3d 157, 161 (3d. Cir. 2003). Under 28 U.S.C. § Subsection (A) specifies the date 2244(d)(1), the one-year period for filing when the one-year period for filing a a federal habeas application runs from the federal habeas petition begins in most latest of the four dates set out in cases (at the end of the direct appeals). subsections (A) through (D). These are: Subsection (B) provides a later starting

4 date when a state has unlawfully prevented was filed within one year after the date on the petitioner from filing, and subsections which the factual predicate for the after- (C) and (D) provide later filing dates in discovered evidence claim could have two circumstances in which claims could been discovered, i.e., the date of Daran not have been litigated within one year Brown’s affidavit, April 25, 1998. Thus, after the end of direct review, i.e., where on Fielder’s reading of 28 U.S.C. the claim is based on a new, retroactive §2244(d)(1), both his after-discovered rule of constitutional law subsequently evidence claim and his prosecutorial recognized by the Supreme Court and misconduct were timely even though the where the factual predicate of the claim latter claim, if asserted alone, would have did not arise or was not discoverable until been time-barred. after the conclusion of the direct review An argument very similar to period. Fielder’s was adopted by the Eleventh B. Circuit in Walker v. Crosby, 341 F.3d 1240 (11th Cir. 2003). 2 There, the Court Fielder argues that we should apply held that “[t]he statute of limitations in § these provisions to the present case in the 2244(d)(1) applies to the application as a following manner. He begins by noting whole; individual claims within an that “an application for a writ of habeas application cannot be reviewed separately corpus” by a person in state custody must for timeliness.” Id. at 1245. In reaching be filed within one year after “the latest this conclusion, the Court relied primarily of” the four dates set out in subsections on the language of 28 U.S.C. § 2244(d)(1). (A) through (D). 28 U.S.C. § 2244(d)(1) The Court wrote: (emphasis added). He then points to subsection (D), which refers to “the date The statute directs the court on which the factual predicate of the claim to look at whether the or claims presented could have been “application” is timely, not discovered through the exercise of due whether the individual diligence.” Fielder then argues that his “claims” w ithin the entire application was timely because (taking into account the tolling rule set out in 28 U.S.C. § 2244(d)(2)) 1 his application proceeding tolled the statute until the PCRA litigation ended on July 10, 1999. Fielder argues that since the federal habeas petition was filed within one year 1 On the date of Brown’s affidavit, thereafter, in May 2000, it was timely. and, indeed, on the date when Brown 2 claims he first became aware of Fielder’s See also Shuckra v. Armstrong, predicament, Fielder’s PCRA petition was No. 3:02cv583(JBA), 2003 U.S. Dist. pending, and under 28 U.S.C. § LEXIS 4408, 2003 WL 1562097 (D. 2244(d)(2), the pendency of that Conn. M arch 2003).

5 application are timely. The interpretation advanced by Fielder and the statute provides a single Walker Court. Although Fielder and the statute of limitations, with a Walker Court claim that this interpretation single filing date, to be is dictated by the language of 28 U.S.C. § applied to the application as 2244(d)(1), their interpretation (which, for a whole. convenience, we will simply call the Walker interpretation) actually disregards Id. at 1243. the language used in the portion of § The Court added that its 2244(d)(1) that is most critical for present interpretation of § 2244(d)(1) was “guided purposes, i.e., subsection (D). Subsection by the distinction between an application (D), as noted, refers to “the date on which and claims within an application, and by the factual predicate of the claim or claims the presumption that Congress understood presented could have been discovered the difference when drafting AEDPA.” Id. through the exercise of due diligence.” 28 at 1243-44. The Court continued: U.S.C. § 2244(d)(1)(D) (emphasis added). Applying this language in a case in which Section 2244(d)(1) states the multiple claims are presented poses a limitation period shall apply problem, as Fielder’s case illustrates. to “an application for a writ of habeas corpus.” Contrast Fielder’s application, as noted, the language in § 2244(d) presented two claims, a prosecutorial creating a statute of misconduct claim and an after-discovered limitations with the evidence claim. The factual predicate of language in § 2244(b) the prosecutorial misconduct claim was requiring dism issal o f presumably known to Fielder at the time of certain claims presented in a trial, but the factual predicate of the after- s e c o n d o r s u ccess iv e discovered evidence claim was not application. The former reasonably discoverable until years later. speaks only to the timeliness So which of these two dates should of the “application,” while control? the latter allows for the If § 2244(d)(1) is applied, as we dismissal of “claims” within believe it must be, on a claim-by-claim a second or successive basis, there is no problem, but if, as the application if they were or Walker interpretation prescribes, the could have been presented claim-by-claim approach is rejected, there in a prior application. is nothing in § 2244(d)(1) that provides a Id. ground for picking one date over the other. The Walker interpretation implicitly reads III. subsection (D) as if it refers to “the latest We do not agree with the date on which the factual predicate of any

6 claim presented could have been IV. discovered through the exercise of due If we look beyond the words of the diligence.” But that is not what subsection statute, as we believe we must in this case, (D) says. we see two strong reasons for concluding Although neither Fielder nor the that the statute of limitations set out in § Walker Court explains the ground for their 2244(d)(1) should be applied on a claim- implicit conclusion that subsection (D) by-claim basis. requires a court to pick the latest date A. when the factual predicate of a claim was reasonably discoverable, it is possible that First, this is the way that statutes of their analysis is based on the statement in limitations are generally applied, and there § 2244(d)(1) that the application runs from is no reason to suppose that Congress “the latest of” the four dates specified in intended to make a radical departure from subsections (A) through (D). However, this approach in § 2244(d)(1). In both this reference to “the latest” date does not civil and criminal cases, statutes of appear in subsection (D) and it does not limitations are applied on a claim-by-claim pertain to the issue at hand. The reference or count-by-count basis. When a statute of to “the latest” date in § 2244(d)(1) tells a limitations defense is raised in a case with court how to choose from among the four a multi-claim civil complaint or a multi- dates specified in subsections (A) through count criminal indictment, the court (D) once those dates are identified. This determines the date on which the statute language does not tell a court how to began to run for each of the claims or identify the date specified in subsection counts at issue, not just the latest date on (D) in a case in which the application which the statute began to run for any of contains multiple claims. Accordingly, the claims or counts. See, e.g., King v. there is nothing in § 2244(d) that suggests Otasco, Inc., 861 F.2d 438, 441 (5th Cir. that a court should follow the Walker 1988) (“When a suit alleges several interpretation and select the latest date on distinct causes of action, even if they arise which the factual predicate of any claim from a single event, the applicable presented in a multi-claim application limitations period must be determined by could have reasonably been discovered. It analyzing each cause of ac tion would be just as consistent with the separately.”); Home Indem. Co. v. Ball-Co statutory language to pick the earliest date. Contractors, Inc., 819 F.2d 1053, 1054 (11th Cir. 1987) (holding that the District For these reasons, we believe that Court had erred in dismissing the the Walker interpretation fails on its own appellant’s separate but related claim on terms. It purports to be based on the statute of limitations grounds because it language of § 2244(d)(1) but actually was in fact governed by a different statute neglects to pay close attention to the of limitations); Barnebey v. E.F. Hutton & statutory language.

7 Co., 715 F. Supp. 1512, 1525 (M.D. Fla. § 2244(d)(1) forecloses a claim-by-claim 1989) (establishing different statute of approach because it refers to the period limitations for the different civil claims within which “an application,” rather than against the defendant); Weeks v. a “claim,” must be filed. But there is Remington Arms Co., 733 F.2d 1485, nothing unusual about the wording of § 1486 (11th Cir. 1984) (affirming the 2244(d)(1). It is common for statute of District Court’s dism issal of the limitations provisions to be framed using appellant’s strict liability claims but the model of a single-claim case. For reversing the District Court’s directed example, the general statute of limitations verdict on the appellant’s negligence for federal claims, 28 U.S.C. § 1658, claims); Contract Buyers League v. F & F prescribes the date by which “a civil Inv., 300 F. Supp. 210, 221 (N.D. Ill. action” must be commenced. State 1969) (applying antitrust statute of statutes often use similar wording. The limitations to the antitrust counts but New Jersey statutes speak of the time determining what limitation applied to the within “an action of law” must be other Civil Rights counts); United States v. commenced. N.J.S.A. § 2A:14-1 et seq. Spector, 1994 U.S. Dist. LEXIS 12500, The Pennsylvania statutes generally refer 1994 WL 470554 (D.N.H. Aug. 31, 1994) to the time within which an “action” or (dismissing several counts of a multiple- “proceeding” must be begun. See 42 Pa. count indictment as time-barred but Cons. Stat. Ann. §§ 5501, 5522 et seq. sustaining other counts of the indictment); Although these provisions are People v. Kelly, 299 Ill. App. 3d 222, 225 framed on the model of the one-claim (Ill. App. Ct. 1998) (describing the seven- complaint, it is understood that they must count information under which the be applied separately to each claim when defendant was charged and the fact that more than one is asserted. To take 28 the defendant’s motion to dismiss three U.S.C. § 1658 as an example, one could counts because they charged crimes whose say of the wording of that provision statutes of limitations had run was precisely what the Walker Court said of granted); State v. Stansberry, 2001 Ohio the wording of 28 U.S.C. § 2244(d)(1): App. LEXIS 3014, 2001 WL 755898 (Ohio Ct. App. July 5, 2001) (denying The statute directs the court defendant’s argument that his felony to look at whether the [“civil murder conviction should have been action”] is timely, not barred by the statute of limitations because wh ether the individual the underlying felony, aggravated robbery, “claims” within the was time-barred). [complaint] are timely. The statute provides a single statute of limitations, with a The Walker interpreta tion, single filing date, to be recounted above, holds that the wording of applied to the [“civil

8 action”] as a whole. retroactively applicable constitutional Walker, 341 F.3d at 1243 (bracketed right regarding the conduct of police material added). Yet no one, we assume, interrogations, and it appears that this would argue that, in a civil case with right might have been violated in Doe’s multiple federal claims, the statute of case. Doe unsuccessfully pursues limitations must begin on the same date for collateral review in state court, but he does every claim. Rather, each claim must be not file a federal habeas petition, and analyzed separately. We believe that § another five years pass. At this point, ten 2244(d)(1) was not intended to be applied years after the conclusion of the direct in a similar fashion. review process, both the self-incrimination and unlawful interrogation claims are B. time-barred by 28 U.S.C. § 2244(d)(1). Second, we believe that a claim-by- Suppose, however, that a short time later claim approach is necessary in order to Doe discovers the factual predicate for an avoid results that we are confident entirely different federal constitutional Congress did not want to produce. issue, namely, that the prosecution may Specifically, the Walker interpretation has have violated Brady v. Maryland, 373 U.S. the strange effect of permitting a late- 83 (1963), because it had in its possession accruing federal habeas claim to open the at the time of trial, but did not disclose, door for the assertion of other claims that certain arguably exculpatory evidence. had become time-barred years earlier. Doe promptly attempts to exhaust state An example illustrates this point. remedies with respect to this new claim, Suppose that on direct appeal a criminal and as soon as those efforts prove defendant in a state case (Doe) raises only unfruitful, he files a federal habeas one federal constitutional claim, say, that petition asserting both the Brady claim and his Fifth Amendment right to be free from the previously barred self-incrimination compelled self-incrimination was violated and unlawful interrogation claims. Under when the prosecutor made statements in the Walker interpretation of 28 U.S.C. § summation that Doe interprets as 2244(d)(1), the one-year statute begins to commenting on his failure to take the run on the date of the discovery of the stand. Doe is unsuccessful on direct factual predicate of the Brady claim, and appeal and chooses not to pursue state the fo rmerly barred claims are collateral relief. Doe then has one year miraculously revived. from the conclusion of direct review to We cannot think of any reason why file a federal habeas petition asserting this Congress would have wanted to produce claim, but he elects not to file a federal such a result. It makes sense to give Doe habeas petition, and five years pass. At time to petition for habeas review of the the end of that five-year period, the new Brady claim, but why should he be Supreme Court of the United States hands allowed to raise the self-incrimination down a decision that recognizes a new, claim, which had been time-barred for the

9 past nine years? Why should he be permitted to raise the unlawful interrogation claim, which had been time- in effect, the prisoner certainly should not barred for the past four years? Why wait before filing a petition raising the should the late discovery of the Brady direct review claims. Without knowing claim revive these unrelated, previously that he should subsequently have a ground barred claims? Neither Fielder nor the for the late accruing claim, he will file a Walker Court has explained why Congress petition raising the direct review claims might have wanted to produce such before the end of the one-year period and results, and we cannot think of any should later file a second petition under 28 plausible explanation.3 U.S.C. § 2244(b)(2) raising the late accruing claim. In the second situation, the prisoner 3 A treatise argues that the Walker learns that he has a basis for the late interpretation of 28 U.S.C. § 2244(d)(1) accruing claim during the one-year period avoids unwarranted “piecemeal” habeas after the end of direct review, and he also litigation, 1 RANDY HERTZ & JAMES S. begins a state collateral proceeding raising LIEBMAN, FEDERAL HABEAS CORPUS the late accruing claim during this period. PRACTICE AND PROCEDURE § 5.2b at 266- In this situation, the prisoner’s options will 67 & n.70 (4th ed. 2001), but we find this be the same no matter whether our argument unconvincing because the interpretation or the Walker interpretation circumstances in which the Walker of § 2244(d)(1) is in effect. In either interpretation would lead to fewer event, the prisoner will have two choices. successive petitions are quite limited. He will be able to file an initial federal The category of cases that must be petition raising the direct review claims considered are those in which a state and then seek to file a second petition prisoner exhausts some federal claims on raising the late accruing claim under 28 direct review (“the direct review claims”) U.S.C. § 2244(b)(2). He will also have the and discovers another federal claim (“the option of waiting until the end of the state late accruing claim”) that cannot be raised collateral proceeding (which tolls the time on direct review and that falls within § for filing a federal petition raising the 2244(d)(1)(C) or (D). Within this category direct review claims) and then filing a of cases, there are three relevant single petition raising both the direct subcategories. review claims and the late accruing claim. In the first, the prisoner does not learn that he has any basis for asserting the In the third situation, the prisoner late accruing claim until more than one learns that he has a basis for the late year after the conclusion of direct review. accruing claim during the one-year period In this situation, no matter which after the end of direct review but he does interpretation of 28 U.S.C. § 2244(d)(1) is not begin a state collateral proceeding

10 C. That interpretation of § 2244(d)(2) In support of his interpretation of obviously does not require us in this case 28 U.S.C. § 2244(d )(1), Fielder to adopt the Walker interpretation of 28 understandably relies on language in U.S.C. § 2244(d)(1). Sweger v. Chesney, 294 F.3d 506 (3d Cir. Nor is there any logical 2002), but we are not persuaded by this inconsistency between the holding in argument. We note, first, that Sweger did Sweger and our holding here. The heart of not concern the issue presented here. our reasoning in Sweger was as follows: Sweger did not decide when the habeas Section 2244(d)(2) states, statute of limitations begins to run under “the time during which a 28 U.S.C. § 2244(d)(1). Instead, Sweger properly filed application concerned the interpretation of 28 U.S.C. for State post-conviction or § 2244(d)(2), which provides for the other collateral review with tolling of the statute of limitations while a respect to the pertinent state post-conviction proceeding is judgment or claim is pending. The question in Sweger was pending shall not be counted whether under § 2244(d)(2) a state toward any period of proceeding tolls the statute with respect to l i m i ta t i o n u n d e r t h i s just the claims at issue in the state subsection.” 28 U.S.C. § proceeding or with respect to all the claims 2244(d)(2) (emphasis included in a subsequently filed federal added). Reading this petition. We held that the statute is tolled language to require that the for all of the claims in the federal petition. state post-conv iction proceeding raise the claims contained in the habeas during this period. In this situation, the petition ignores the use of choice between the Walker interpretation the word “judgment” in the and ours would make a difference, but we statute. See Carter [v. believe that very few cases will fall into Litscher, 275 F.3d 663, 665 this category. As a result, we do not think (7th Cir. 2001)] (“Austin [v. that our interpretation will lead to any Mitchell, 200 F.3d 391 (6th significant increase in the number of Cir. 1999)] reads the word successive federal habeas applications. In ‘ju dgm ent’ out o f § addition, the mild impact on judicial 2244(d)(2) and tolls the time economy of a few successive federal only while a particular habeas applications would be far less than ‘claim’ . . . is before the the impact on state courts of a rule that state court. That is just not allows all claims of error to be resuscitated what the statute says. Any through the happenstance of reviving a properly filed collateral single claim under Subsection (c) or (d).

11 challenge to the judgment Fielder filed his federal petition long after tolls the time to seek federal the date specified under subsection (A). c o l l at e r a l rev iew .”) Accordingly, Fielder’s claim of (emphasis in original). prosecutorial conduct is time-barred, and 294 F.3d at 516-17 (bracketed material it was properly dismissed by the District added ). We thus relied on a Court. straightforward applic ation o f the By contrast, Fielder’s after- particular language of 28 U.S.C. § discovered evidence claim is timely under 2244(d)(2), and there is no tension § 2244(d)(1)(D). Nevertheless, we can b e tw e e n t h i s an a l ys i s a n d o ur affirm the decision of the District Court on interpretation in this case of 28 U.S.C. § the alternative ground that this claim is not 2244(d)(1). cognizable under the federal habeas statute As Fielder stresses, however, our because it rests on state, rather than opinion in Sweger does contain statements federal, law. It has long been recognized concerning 28 U.S.C. § 2244(d)(1) that that “[c]laims of actual innocence based on support his position here. In particular, newly discovered evidence” are never Sweger stated that the 28 U.S.C. § grounds for “federal habeas relief absent 2244(d)(1) must be applied to a habeas an independent constitutional violation.” petition as a whole and not on a claim-by- Herrera v. Collins, 506 U.S. 390, 400 claim basis. 294 F.3d at 514-15, 517. The (1993). Therefore, Fielder’s after- Sweger Court used this interpretation of 28 discovered evidence claim was properly U.S.C. § 2244(d)(1) as non-claim-specific dismissed by the District Court. to bolster its interpretation of 28 U.S.C. § IV. 2244(d)(2) as likewise non-claim-specific. For the reasons set out above, we Because these statements were dicta, affirm the District Court’s order. however, they do not bind us, and for the reasons explained above, we conclude that 28 U.S.C. § 2244(d)(1), like other statute of limitations provisions, must be applied on a claim-by-claim basis. V. Applying our interpretation of § 2244(d)(1) to the present case, it is clear that Fielder’s prosecutorial misconduct claim was not filed on time. Subsection (D) does not save this claim because the factual basis for the prosecutorial misconduct claim was known many years earlier. Thus, subsection (A) governs. Even with tolling, there is no dispute that