062542P.pdf   04/08/2008  Donald Riddle  v.  Michael Kemna
   U.S. Court of Appeals Case No:  06-2542
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Benton, Author, for the Court En Banc.]
   Prisoner case - habeas. Because a Missouri court of appeals is not a
   court of last resort, the Supreme Court of the United States would not
   have jurisdiction to consider a petition for a writ of certiorari after the
   court of appeals affirmed Riddle's conviction; since the Supreme Court
   of the United States could not have reviewed Riddle's direct appeal, the
   expiration of time for seeking direct review set out in 28 U.S.C. Sec.
   2244(d)(1)(A) does not include the 90-day period for filing a certiorari
   petition; that portion of Nichols v. Bowersox, 172 D.3d 1068 (8th Cir.
   1999) (en banc) which includes the 90-day time period for filing
   certiorari in all tolling calculations under the statute is vacated; in this
   case, the district court properly began the statute of limitations the day
   after the direct-appeal mandate was issued by the Missouri Court of
   Appeals, properly tolled it while the post-conviction proceedings were
   pending and did not err in refusing to include the 90-day period for filing
   of certiorari; as a result, the court did not err in determining Riddle's
   habeas petition was untimely; however, Riddle may be able to establish
   that he is entitled to equitable tolling if he pursued his rights diligently
   and was lulled into inaction by this court's decision in Nichols, and the
   matter is remanded for further proceedings.