Habeas corpus; One-year window to file a habeas petition; 28 USC § 2244(d)(1)(A); Equitable tolling; Dismissal under Rule 4 of the Rules Governing § 2254 Cases; Whether petitioner’s arguments as to equitable tolling were “sufficiently weighty” to warrant a response from the state; Whether petitioner should have filed a “protective” petition before the limitations period expired; “Extraordinary circumstances”

[This appeal was from the WD-MI.] Concluding it was not “plainly apparent” from petitioner-Millis’s petition that he was not entitled to equitable tolling of the time limit within which to file for habeas relief, the court reversed and remanded for further proceedings. Millis was convicted of state crimes in Michigan. He moved for state post-conviction relief, arguing that he would have accepted the government’s plea deal had his lawyer explained it. The trial court denied the motion and the Court of Appeals denied his appeal. The Michigan Supreme Court sent him conflicting letters about the status of his application for leave to appeal. By the time he learned that his application had been administratively dismissed as untimely, his “time to file his federal habeas petition had expired.” He filed a pro se petition within two weeks of receiving the dismissal letter from the Michigan Supreme Court. The district court ruled that he was not entitled to equitable tolling because he failed to “diligently” pursue his rights by not contacting the Michigan Supreme Court about the conflicting letters. It “dismissed Millis’s petition under Rule 4, which is appropriate only where a petition is ‘so plainly meritless that a court need not consider a state response, the state record, or any other evidence.’” The primary question on appeal concerned the point at which Millis should have known that his Michigan Supreme Court application was dismissed, and that the habeas clock had started. He had received conflicting letters from the clerk’s office, the last of which had informed him—albeit incorrectly—that “his appeal had been ‘accepted for filing’ and was ‘complete.’” The court found that this could have led to a reasonable conclusion that the prior rejection had been “extinguished.” The sequence of letters could have convinced Millis that “the last-in-time letter he received was the operative one[.]” The court rejected the government’s argument that he should have filed a “protective petition before his limitations period expired[,]” noting that such a petition is one way to show diligence but there is no case law requiring it. The court further concluded that “the Michigan Supreme Court’s confusing communications could arguably amount to extraordinary circumstances beyond Millis’s control.”