Steven W. Collier v. Bob Bayer

408 F.3d 1279, 2005 U.S. App. LEXIS 10165, 2005 WL 1313518

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 3, 2005
• Docket: 04-15017
• Status: Published

Opinions

BETTY B. FLETCHER, Circuit Judge.

Petitioner-Appellant Stephen Wayne Collier appeals from the decision of the United States District Court for the District of Nevada, which denied his petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied Collier’s habeas petition for failing to comply with the State of Nevada’s time limits for pursuing habeas relief. Collier challenges the adequacy of Nevada’s time limit for filing habeas corpus appeals and the tolling provisions provided therein. Further, he argues cause and prejudice to excuse his purported procedural default.

We have jurisdiction pursuant to 28 U.S.C. § 2253. We reverse the district court’s decision and hold that the particular application of Nevada’s time limits and tolling provisions in Collier’s ease was not adequately established prior to his appeal. Because we reverse on this ground, we do not reach the question of whether Collier had cause or suffered prejudice.

Standard of Review

Federal district court decisions denying 28 U.S.C. § 2254 habeas petitions for procedural default are reviewed de novo. Fields v. Calderon, 125 F.3d 757, 759-60 (9th Cir.1997). Factual findings underlying the decision are reviewed for clear error. Luna v. Cambra, 306 F.3d 954, 959 (9th Cir.2002). Mixed questions of law and fact involving constitutional issues are reviewed de novo. Tomlin v. Myers, 30 F.3d 1235, 1241 (9th Cir.1994).

Factual Background

Collier pursues this habeas appeal from a judgment based on a plea and sentence of forty-five years for trafficking in controlled substances. Collier and co-defendant, Christopher Glen Hammond, pled guilty to selling methamphetamine to a government informant, Gary McConnell. Collier and Hammond sold drugs to McConnell on March 12, 1994, while McConnell was working with Nevada’s Consolidated Narcotics Unit (“CNU”). McConnell worked with the CNU as part of a plea bargain for trafficking charges pending against him. During the transaction Collier gave drugs to Hammond, who then gave them to McConnell. McConnell paid for the drugs with money given him by the CNU. McConnell testified against Collier and Hammond at their preliminary hearing on June 9,1994.

Collier faced a several count information. He was able to negotiate a- plea bargain. He pled guilty to one count of drug trafficking and he agreed to a forty-five-year prison sentence. The additional chargés against Collier were dropped. Collier’s co-defendant pled guilty to a similar charge and he agreed to a ten-year prison sentence.-

Five days before Collier was sentenced, a new Nevada law went into effect reducing the minimum and maximum prison sentences for several criminal offenses. The sentence for the offense to which Collier pled guilty was dramatically reduced. The minimum was reduced from ten years to two years. The maximum was reduced from life to fifteen years.¹ This statute went into effect July 1, 1995. The revised statute does not apply to any offense committed before- the effective ' date. 1995 Nev. Stat. cb. 443 § 393. Attempts by Collier to challenge his sentence based on the amended statute have failed.

Collier was originally Represented by attorney Sferrazzk Sferrazza withdrew as counsel in early 1995 because he took a job in the public sector. The court appointed the county public defender’s office to represent Collier. Three different attorneys from the public defender’s office represented Collier during his preliminary hearing, plea negotiations, and sentencing. The final attorney to represent Collier was attorney Mitchell. Mitchell appeared with Collier at his July 5, 1995 sentencing. Mitchell had previously represented McConnell, the government’s informant, and had helped McConnell negotiate a plea against several drug trafficking charges in early 1994. As part of the plea bargain, McConnell pled guilty to one count of drug trafficking. The plea resulted in several charges being dropped and the suspension of a five year prison sentence and $50,000 fine. McConnell was placed on probation for three years. The transcript of the sentencing proceedings is sealed. Shortly after accepting this plea deal, McConnell was involved with the CNU operation that resulted in Collier’s arrest.

Procedural History

A. Proceedings in state court

Collier did not file an immediate direct appeal after entry of the final judgment against him. He did, however, file a motion to correct an illegal sentence on March 21, 199? under Nev.Rev.Stat. 176.555 (2004).² He challenged his judgment of conviction for failing to list the statute under which he was sentenced and he challenged his, sentence as exceeding the maximum statutory limit for convictions under Nevada’s revised sentencing statute, Nev.Rev.Stat. 453.3385(2). The Nevada state district court issued an amended judgment of conviction, listing the proper statute, on March 26, 1997. The amended judgment did not change the sentence. A few months later, Collier filed a second motion to correct an illegal sentence reviving the challenge to his sentence as exceeding the maximum statutory limit. The state district court considered the merits of this motion and held the amended law did not apply to Collier. He appealed. Two years later, the Nevada Supreme Court denied Collier’s appeal on the merits, affirming the state district court.³ The remittitur issued on June 9, 1999.

After the Nevada Supreme Court denied Collier’s motion but before the remittitur issued, he filed a state habeas petition on May 28, 1999. The state district court dismissed the habeas petition as untimely; saying the petition violated the one-year time limit for filing habeas appeals.' See Nev.Rev.Stat. 34:726(1). Collier appealed to the Nevada Supreme Court. The Nevada Supreme Court affirmed.

B. Proceedings in federal court

Collier filed a federal habeas petition in the Nevada federal district court on June 30, 2000. The district court dismissed the petition as mixed (including both exhausted and unexhausted claims), but gave Collier an opportunity to amend his petition. He abandoned the unexhausted claims and pursued only those claims the district court deemed exhausted. The district court denied Collier’s habeas petition as barred by Nevada’s procedural rule that habeas petitions must be filed within one year of the judgment of conviction or within one year of the Nevada Supreme Court’s remittitur from an appeal from judgment. See Nev.Rev.Stat. 34.726(1). The district court found Nevada’s rule was adequate and independent and that Collier failed to show cause and prejudice for the default. Collier then petitioned for and received a certificate of appealability. The district court found Collier .had “raised a valid showing of the denial of a constitutional right” for ineffective assistance of counsel. The district court also found the adequacy of Nevada’s procedural rule “could be debatable among jurists of reason.”

Analysis

The State of Nevada requires habeas petitions to be filed within one year of the state supreme court’s remittitur in an appeal taken from judgment. Nev.Rev.Stat. 34.726(1). In this case, the trial court amended Collier’s ' final judgment on March 26, 1997. After the amendment, Collier continued to pursue relief through a properly filed motion to correct an illegal sentence. The motion was denied and Collier appealed to the Nevada Supreme Court. The Nevada Supreme Court denied Collier’s appeal on the merits on May 13, 1999. Immediately thereafter, on May 28, 1999, Collier filed a state habeas petition. The remittitur from the Nevada Supreme Court’s order issued on June 9, 1999.

On the face of Nevada’s statute limiting the time to file for habeas -corpus relief, Collier’s state habeas petition conforms with the state’s one year time limit. See Nev.Rev.Stat. 34.726(1). Collier filed his habeas petition within one year of the state supreme court’s remittitur on his appeal. The Nevada Supreme Court, however, -interpreted the law differently in Collier’s case. The Nevada Supreme Court said Collier’s state habeas- petition was not timely filed under Nev.Rev.Stat. 34.726(1), thus denying Collier’s habeas petition on state procedural grounds.⁴ Collier argues .this procedural rule was not adequately established prior to his appeal. He argues the rule cannot bar his pursuit of federal habeas relief. The Respondent disagrees. . .

We conclude that the rule was not adequately established prior to Collier’s appeal. We find nothing in either the plain language of Nev.Rev.Stat. 34.726 or the Nevada courts’ interpretation of that statute to suggest that an amended judgment would not entitle Collier to a new one year time period to pursue habeas relief. Furthermore, there is no established rule that motions to correct an illegal sentence do not qualify as ah appeal from judgment, thus tolling the period for filing a habeas petition.

A. Adequate and independent state . grounds

For a state procedural rule to prevent federal review of federal claims, the state’s rule must be both adequate and independent. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The Supreme Court has held in the habeas context that “this Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.”' Id. The Court explained, “The doctrine applies to bar federal habeas when a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement.” Id. at 729-30, 111 S.Ct. 2546.

In order for a state procedural rule to preclude federal review, the rule must be “firmly established and regularly followed.” Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). The Ninth Circuit has elaborated that “a state rule must be clear, consistently applied, and well-established at the time of the petitioner’s purported default.” Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir.1996) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir.1994)).⁵ If a state procedural rule is not well-established before a petitioner supposedly breaks the rule, then the rule cannot prevent federal review of the petitioner’s federal claims. Although the state is not required “to articulate every permutation of every rule,” Bargas v. Burns, 179 F.3d 1207, 1213 (9th Cir.1999), a rule held generally adequate can be deemed inadequate as applied to particular unique circumstances, Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002). Once a petitioner has demonstrated the inadequacy of a rule, the state bears the ultimate burden of proving the rule bars federal review. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir.2003).⁶

This standard for determining the adequacy of state procedural bars is well-established in federal habeas law. The dissent accuses the majority of creating “a radical new rule of law which shifts the burden of proof from the prisoner to the State.” Dissent at 1289. The dissent confuses a disagreement over the interpretation of Nevada state law with a conflict over the federal habeas standard. In this opinion we hold that Collier met his burden by establishing that no state rule was adequately established to bar his state ha-beas petition. Only then do we shift the burden to the state, as the standard demands. This is merely an application of the federal habeas standard as it stands today. This holding makes no new habeas law.

State procedural rules must also be independent to preclude federal review. As Collier challenges only the adequacy of Nevada’s procedural rule, not its independence, we do not address the independence prong.

The Nevada procedural rule at issue is a one-year time limit for filing a habeas corpus petition. The relevant law states:

Unless there is good cause shown for delay, a petition that challenges the validity of a judgment of sentence must be filed within 1 year after entry of the judgment of conviction oí, if an appeal has been taken from the judgment, within 1 year after the supreme court issues its remittitur. For the purposes Of his subsection, good cause for delay exists if the petitioner demonstrates to the satisfaction of the court:

(a) That the delay is not the fault of the petitioner; and

(b) That dismissal of the petition as untimely will unduly prejudice the petitioner.

Nev.Rev.Stat. 34.726(1). This court previously found that the Nevada Supreme Court generally applies this time limit consistently to habeas petitions. See, e.g., Loveland v. Hatcher, 231 F.3d 640, 643 (9th Cir.2000); Moran v. McDaniel, 80 F.3d 1261, 1268-70 (9th Cir.1996). The adequacy of this general time bar, however, is not at issue here. The issues for review are specific to the application of this rule in Collier’s case. First, was it clear and well-established in Nevada law that the original judgment, not the amended judgment of conviction starts the one-year time limit? Second, was it clear and well-established in Nevada law that a motion to correct an illegal sentence does not toll the one-year time limit?

B. Amended judgments

The plain language of Nev.Rev.Stat. 34.726(1) does ‘ not distinguish between original judgments of conviction and amended judgments of conviction. Until recently, there was little in Nevada statutory or case law to offer guidance on this issue.⁷ Then, on September 3, 2004, the Nevada Supreme Court published an opinion holding that amended judgments of conviction do not automatically re-start the timé’ clock under Nev.Rev.Stat. 34.726(1). Sullivan v. Nevada, 96 P.3d 761, 764 (Nev.2004). Instead, an amended judgment of conviction may, if proved, qualify as “good cause” under Nev.Rev. Stat. § 34.726(l)(a), thus allowing for additional appeals. Id. The Nevada Supreme Court said:

We emphasize, however, that the entry of an amended judgment may in and of itself provide the good cause required by that statute to present appropriate post-conviction claims relating to the amendment at issue. In other words, if the claims presented in a petition filed within one year of the entry of the amended judgment challenge the proceedings leading to a substantive amendment of the judgment and could not have been raised in prior proceedings, there may be no delay attributable to the “fault of the petitioner.”

Id. As Sullivan was decided only recently, such a rule cannot be held clearly and well-established at the time Collier filed his motion to correct an illegal sentence in 1997. Notably, the Nevada Supreme Court does not cite a single statute, rule, or case standing for the proposition that amended judgments of conviction do not automatically re-start the one-year time clock under Nev.Rev.Stat. 34.726(1). The two cases noted in the discussion. Dickerson v. State, 114 Nev. 1084, 967 P.2d 1132 (1998) and Pellegrini v. State, 117 Nev. 860, 34 P.3d 519 (2001), are cited only to illustrate the legislature’s general intent in enacting Nev.Rev.Stat. 34.726(1). Sullivan, 96 P.3d at 764 nn. 7 & 10-11. There is scant evidence that amended judgments of conviction did not re-start the one-year clock at the time of Collier’s default.

The dissent would give substantial weight to Morrell v. Edwards, 98 Nev. 91, 640 P.2d 1322 (1982). In that case, the Nevada Supreme Court created a rule governing when the time for an appeal in the civil context may start anew -after an amended judgment. The court stated that whether “an appeal is properly taken from an amended judgment rather than the judgment originally entered depends upon whether the amendment disturbed or revised legal rights and obligations which the' prior judgment had plainly and properly settled with finality.” Id. at 1324. The Nevada Supreme Court has never applied this standard in a criminal case. The standard for criminal cases, as established in 2004, is whether the issues presented in the appeal relate to a substantive change in the amended judgment. Sullivan, 96 P.3d at 764. Rules for civil appeals do not dictate procedure for criminal habeas appeals. The Nevada Supreme Court has specifically said, “this court has consistently and repeatedly held that rules of civil appellate procedure are not applicable to appeals from statutory post-conviction ha-beas corpus proceedings.” Klein v. Warden, 118 Nev. 305, 43 P.3d 1029, 1033 (2002). The rule establishing when amended judgments allow a new period to file habeas appeals was decided by the Nevada Supreme Court’s holding in Sullivan in 2004.⁸ Because this rule was not adequately established, if at all, prior to 2004, it cannot bar federal habeas review in Collier’s case.⁹

C. Motions to correct an illegal sentence

The second procedural rule at issue is whether a motion to correct an illegal sentence tolls the one-year clock under Nev.Rev.Stat. 34,726(1). The question is whether a motion to correct an illegal sentence is an “appeal ... from the judgment” as stated in Nev.Rev.Stat. 34.726(1). Collier’s motions to correct an illegal sentence were properly filed under Nevada state law. The state district court considered Collier’s first motion and amended his judgment of conviction. Both the Nevada district court and the Nevada Supreme Court considered his second motion and denied it on the merits. Collier filed his federal habeas petition after the Nevada Supreme Court’s remittitur on his state habeas petition. When Collier filed his motion to correct an illegal sentence, there was little in Nevada’s state law to guide the courts’ understanding of whether these motions are an appeal from judgment, thus tolling the period for filing a habeas petition under Nev.Rev.Stat. 34.726(1). Then, after Collier filed his motion to correct an illegal sentence, the Nevada Supreme Court gave form to these words in Dickerson v. State, 967 P.2d at 1133-34. There the court held only timely direct appeals qualified as appeals tolling the one-year time limit.¹⁰ Id. The Court held:

We now construe [Nev.Rev.Stat.] 34.726(1) to mean' that the one-year period for filing a post-conviction habeas corpus petition begins to run from the issuance of the remittitur from a timely direct appeal to this court from the judgment of conviction or from the entry of the judgment of conviction if no direct appeal is taken. A timely direct appeal is one in which the notice of appeal is filed with the district court within the. time period prescribed by statute.

Id. Dickerson was decided in 1998 and Collier-filed his motion to correct an illegal sentence in -1997.¹¹ Collier cannot be held accountable for rules established after his purported breach. See Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); Petrocelli v. Angelone, 248 F.3d 877,-885 (9th Cir.2001).

The government coricedés it was in Dickerson where the tolling'provisions in Nev.Rev.Stat. 34.726(1) were narrowed to apply - Only to a “timely direct appeal.” Dickerson, 967 P.2d at 1133. Nonetheless, the government argues such a rule “necessarily follows” from a prior Nevada Supreme Court decision in Edwards v. State, 112 Nev. 704, 918 P.2d 321 (1996). In Edwards, the Nevada Supreme Court explained that motions to correct an illegal sentence are special because they attack a sentence that is “either facially illegal or is the result of a mistaken assumption regarding a criminal defendant’s record, time constraints and procedural defaults necessarily 'do not apply.” Id. at 324. The Nevada Supreme Court’s- discussion of motions to correct an illegal sentence (and like -appeals) in Edwards emphasizes that these motions are free from the various constraints and time limits restricting access to other appeals. In particular these motions are exempted from the limitations on habeas petitions. Id.; Nev.Rev.Stat. 34.724(2)(a). Suggesting it “necessarily follows” from the discussion in Edwards that motions to correct an illegal sentence (and similar motions) limit an individual’s ability .to pursue habeas relief completely miseharacterizes the Edwards opinion. The Nevada Supreme Court’s emphasis in Edwards is on narrowly- defining this type of appeal while emphasizing broad access to it. Petitioners suffering under the errors challenged by motions to correct an illegal sentence are free of the procedural hurdles placed on other types of appeals. It is disingenuous to suggest Edwards interpreted the phrase “an appeal has been taken from the judgment” in Nev.Rev.Stat. 34.726(1) to exclude motions to correct an illegal sentence. The Nevada Supreme Court considered no such question. Twisting the court’s words to create such a meaning does not establish a clear, consistently applied, and well-established rule.

Today, because of the Dickerson decision, the confusion present during Collier’s appeal does not exist.¹² Defendant-Appellants know they may pursue habeas relief only within one year “from the issuance of the remittitur from a timely direct appeal to this court from the judgment of conviction or from the entry of the judgment .of conviction if no direct appeal is taken-.” Dickerson, 967 P.2d at 1133-34..

Conclusion

The Nevada procedural rules applied by the Nevada state courts to bar Collier’s habeas petition are not adequate to preclude federal review of his habeas petition. The rules applying Nev.Rev.Stat. 34.726(1) were not clear, consistently applied, and well-established at the time of Collier’s purported default. When Collier filed his motion to correct an illegal sentence in 1997 and subsequent habeas petitions, it appeared under state law a habeas petition could follow a remittitur from such an appeal and amended judgment. The district court’s opinion is revérsed and the appeal is remanded for consideration on the merits.

REVERSED AND REMANDED.

1 . The amended statute says: "[I]f the quantity involved ... [i]s 14 grams or more, but less than 28 grams, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years and by a fine of not more than $100,000.” Nev. Rev.Stat. 453.3385(2) (1995). Previously, the statute read: "If the quantity involved ... is 14 grams or more, but less than 28 grams, by imprisonment in the state prison for life or for a definite term of not less .than 10 years and by a fine of not less than $100,000.” Nev.Rev.Stat. Ann. 453.3385(2) (Michie 1993).

2 . In Nevada motions to correct an illegal sentence are a post-conviction remedy available to correct a facially illegal sentence. See Pangallo v. State, 112 Nev. 1533, 930 P.2d 100, 102 n. 2 (1996); Edwards v. State, 112 Nev. 704, 918 P.2d 321, 323-24 (1996). Motions to correct an illegal sentence (and similar appeals) occur after a conviction and sentencing but they are not collateral attacks. Pas-sanisi v. State, 108 Nev. 318, 831 P.2d 1371, 1373 (1992).

Motions to correct an illegal sentence are not subject to the time bars and procedural hurdles limiting other types of appeals. The Nevada Supreme Court said, "Because of the very nature of the remedy sought in a motion for relief from a sentence that is either facially illegal or is the result of a mistaken assumption regarding a criminal defendant's record, time constraints and procedural defaults necessarily do not apply.” Edwards, 918 P.2d at 324. Collier's motions to correct an illegal sentence were properly filed and were considered on the merits by the Nevada state courts.

3 . During this same time, Collier filed a belated direct appeal. This appeal was dismissed by the Nevada Supreme Court for lack of jurisdiction due to timeliness.

4 . Federal courts of appeal may not review state courts’ interpretations of state law. The Supreme Court said, "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Thus, we defer to the state court's interpretation of state law.

5 . The dissent argues that the petitioner must cite cases in which a procedural bar is applied inconsistently. Dissent at 6245. Inconsistency is only one aspect of the principle that a state’s procedural bar must be ade-. quate. This court has repeatedly said the state’s rule must be clear, consistently applied, and well-established. See e.g., Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir.2004); Melendez v. Warden, 288 F.3d 1120, 1122 (9th Cir.2002); Jackson v. Calderon, 211 F.3d 1148, 1153 (9th Cir.2000). The emphasis in the case before us is whether the rule was well-established. We, obviously, do not require a habeas petitioner to show inconsistency in application when the problem with the rule is that the rule is not clear or well-established and has never been applied to the unique circumstances of his case.

6 . .The Ninth Circuit explained the state’s burden for proving the adequacy of a state rule, saying:

Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's.

Powell v. Lambert, 357 F.3d 871, 875 (9th Cir.2004) (quoting Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir.2003)).

7 . In 1888, the Nevada Supreme Court denied a motion for a new trial in a civil case where the trial court's clerk had entered the wrong name on the judgment. Burbank v. Rivers, 20 Nev. 159, 18 P. 753 (1888). The Nevada Supreme Court found the clerical error did not extend the time for filing an appeal. Id. at 755. The court said that to prevail on such a basis, the petitioner must "affirmatively show, to the satisfaction of this court, that he was deceived or misled by the entry as made.” Id. Burbank is not instructive in the case before us. First, the amendment to Collier’s judgment was not a clerical error. The trial court failed to include the basis for the judgment: the statute under which Collier was sentenced. Second, the Burbank case is not cited by the state courts as grounds for the state courts' opinions in this case. The Burbank rule (if such a rule exists) is not at issue here. Finally, the Burbank case has not been cited by a Nevada state court since 1921. See Bottini v. Mongolo, 45 Nev. 245, 197 P. 702, 704 (1921). Nowhere is it cited in the State’s briefing materials. The dissent’s shaking the dust off a century old rule, not used by the state courts in eighty years, does not establish the rule as adequate under federal habeas law. We do not reject .the rule because it is old, we reject it because it is not well-established.

8 . The first footnote of the Nevada Supreme Court’s opinion states that the court had previously disposed of the case in an unpublished disposition on March 5, 2004. The government then filed a motion seeking publication of the decision. "Cause appearing, [the Court granted] the State's motion to publish.” Sullivan, 96 P,3d at 762- n. 1. The cause for publication is not mentioned. Given the lack of guidance on this issue in prior opinions, the need for publication is consistent with the need to establish the rule.

9 . The dissent suggests that because Collier cannot show cases illustrating an inconsistent application of such a rule Collier’s claim fails. Dissent at 1292. The dissent completely ignores the well-established prong of the standard for determining adequacy. See supra at 1294-95. Collier has shown this state procedural rule- did not exist prior to 2004 and the government has failed its burden to show it was adequately established.

10 . Because the Dickerson case was decided after Collier filed his motion to correct an illegal sentence, it is not determinative in this case. Thus we need not explore whether under Nevada state law motions to correct an illegal sentence are direct appeals.

11 . The dissent relies heavily on Dickerson, 114 Nev. 1084, 967 P.2d 1132, and the NRAP 4(b). Dissent at 1298-99. Neither is controlling here. Dickerson was decided after Collier's purported breach. NRAP 4(b) .established tolling mechanisms for direct appeals, not habeas appeals. It is inapplicable to the question of whether a motion to correct an illegal sentence tolls the time period for filing a habeas appeal. Furthermore, NRAP 4(b) does not govern motions to correct, an illegal sentence. Such motions, as the Respondent and the dissent concede, need not be filed within thirty days of judgment as NRAP 4(b) requires. Collier's motions to correct an illegal sentence were timely and were addressed on the merits by the Nevada courts.

12 . The dissent suggests that every prisoner in Nevada convicted prior to September 3, 2004 will ■ be able to file a meritless motion to correct an illegal sentence en route to filing a state habeas petition. Dissent at 1289-90. This assertion is unwarranted. In this case, the petitioner’s motion to correct an illegal sentence was granted and he filed his second motion to correct an illegal sentence within the one-year period for filing an appeal. His motions were properly filed and considered on the merits by the Nevada state courts. If a person were able to replicate this unlikely pattern and they were convicted prior to the Nevada Supreme Court's opinion in Dickerson v. Nevada, 114 Nev. 1084, 967 P.2d 1132 (1998) (holding motions to correct an illegal sentence are not an appeal from a judgment) then they could and should be able to file their habeas appeal. No state rule was established to the contrary prior to the Dickerson opinion.