by David M. Reutter

The United States Court of Appeals for the Sixth Circuit held that when a state prisoner’s belated appeal fits within an established state-law exception to an otherwise applicable appeal deadline, the prisoner’s properly filed application for post-conviction relief remains “pending” under 28 U.S.C. § 2244(d)(2), and the one-year federal habeas limitations period is tolled during the ensuing state appellate proceedings. The Court reversed the U.S. District Court for the Eastern District of Kentucky’s dismissal of Ricky Lee Welch’s habeas petition as untimely, instructing that courts must examine how a state timeliness rule functions rather than rely on the label attached to the procedure. The Court explained that a belated appeal may toll AEDPA’s clock, but it cannot revive a limitations period that has already expired.

Background

In 2017, a Kentucky jury convicted Welch of robbery, kidnapping, burglary, and being a persistent felony offender. He received a 50-year prison sentence. After his direct appeal was unsuccessful, Welch pursued state post-conviction relief in June 2019, arguing ineffective assistance of trial counsel. The trial court denied his motion in May 2020.

Kentucky law ordinarily requires litigants to file an appeal within 30 days of an adverse ruling. Welch’s court-appointed post-conviction counsel failed to meet this deadline, later attributing her neglect to the COVID-19 pandemic. On July 27, 2020, six weeks after the deadline expired, Welch filed a motion seeking a belated appeal under a Kentucky procedure that excuses late filings when delay results from deficient counsel. The state court granted the motion and addressed Welch’s claims on the merits, ultimately affirming the denial of post-conviction relief. The Kentucky Supreme Court declined review in June 2023.

Welch filed his federal habeas petition on July 28, 2023. The U.S. District Court for the Eastern District of Kentucky dismissed the petition as untimely, concluding that the federal tolling provision did not apply during the period Welch pursued his state appeal because his notice of appeal was facially late.

Analysis

The Court began by examining AEDPA’s tolling framework. The statute pauses the one-year limitations period during any interval when “a properly filed application for State post-conviction or other collateral review” is “pending.” 28 U.S.C. § 2244(d)(2). The Court observed that while an appeal does not constitute an “application” for relief, the Supreme Court has recognized that a post-conviction application remains “pending” during an appeal to a state appellate court. Lawrence v. Florida, 549 U.S. 327 (2007).

However, the Court noted an important qualification. A state post-conviction application ceases to be “pending” if the petitioner appeals “in an untimely way,” as the Supreme Court explained in Carey v. Saffold, 536 U.S. 214 (2002). The Court stated that determining timeliness under state law requires examining whether the petitioner’s appeal satisfies any recognized exception to state deadlines. The Court cited Pace v. DiGuglielmo, 544 U.S. 408 (2005), for the principle that when an otherwise untimely appeal “fit[s] within any exception[]” to a state time limit, the application remains “pending” and the federal habeas clock stays paused.

Turning to Kentucky law, the Court explained that although Kentucky generally imposes a 30-day appeal deadline, its appellate rules expressly preserve exceptions “recognized by case law.” Ky. RAP 3(D). One such exception originated in Commonwealth v. Wine, 694 S.W.2d 689 (Ky. 1985), which required Kentucky courts to allow belated direct appeals when counsel’s ineffectiveness caused the untimely filing. Moore v. Commonwealth, 199 S.W.3d 132 (Ky. 2006), extended that exception to post-conviction proceedings in light of Kentucky’s state-law right to counsel in those proceedings. The Court further noted that Kentucky treats the timely filing of a notice of appeal as jurisdictional and “subject only to well-defined exceptions.” See: Bruenger v. Miller, 706 S.W.3d 247 (Ky. 2024); Long v. Dep’t of Revenue, 718 S.W.3d 868 (Ky. 2025). For that reason, the Kentucky courts’ decision to entertain Welch’s belated appeal confirmed that his appeal satisfied Kentucky’s timeliness rules through a recognized exception, which meant his post-conviction application remained “pending” under § 2244(d)(2), the Court determined.

The Court found additional support in the jurisdictional nature of Kentucky’s appeal deadlines. Because Kentucky appellate courts lack authority to consider appeals filed without timely notice, their decision to hear Welch’s appeal necessarily demonstrated compliance with the state’s timing requirements through the belated-appeal exception.

The Court noted the Sixth Circuit’s prior decisions involving Ohio’s analogous belated-appeal procedure. In DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006), and Board v. Bradshaw, 805 F.3d 769 (6th Cir. 2015), the Sixth Circuit held that Ohio’s delayed-appeal mechanism tolls the federal habeas clock while the motion is pending and, if granted, during the subsequent appeal. The Court observed that several sister circuits have reached similar conclusions regarding comparable state procedures. See Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80 (3d Cir. 2013); Streu v. Dormire, 557 F.3d 960 (8th Cir. 2009); Gibson v. Klinger, 232 F.3d 799 (10th Cir. 2000).

The Court noted an important limitation. Belated-appeal motions toll but cannot resuscitate an expired limitations period. It stated that “[o]nce the one-year clock has run, a belated appeal cannot save it.”

Applying these principles, the Court calculated that only 190 days of the 365-day period had elapsed when Welch filed his federal petition, rendering it timely.

The Court rejected the Commonwealth’s argument that treating belated appeals as exceptions undermines AEDPA’s finality goals, reasoning that the approach honors the statutory text, respects Supreme Court precedent, and maintains the outer 12-month limit. The Court also declined to credit the Commonwealth’s characterization of belated appeals as “untimely,” explaining that courts must examine “how a state procedure functions, rather than the particular name that it bears.” Saffold.

Conclusion

Accordingly, the Court reversed the District Court’s dismissal. See: Welch v. Plappert, 169 F.4th 707 (6th Cir. 2026).  

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