Sixth Circuit Holds Kentucky Deficient-Counsel Belated-Appeal Procedure Tolls Federal Habeas One-Year Limitations Period
by David M. Reutter
The United States Court of Appeals for the Sixth Circuit held that a properly filed Kentucky post-conviction application remains “pending” under 28 U.S.C. § 2244(d)(2) during a belated appeal authorized by Kentucky’s deficient-counsel exception. The petitioner requested relief before the one-year period expired, so his motion and ensuing appeal tolled it. The Court reversed the dismissal.
Background
Ricky Lee Welch’s conviction reached finality on March 13, 2019. He filed a motion to vacate on June 18, after 96 days had elapsed. The trial court rejected the motion. Appointed counsel then missed the June 12, 2020, appeal deadline. On July 27, Welch requested belated-appeal relief. The appellate court permitted the appeal and upheld the denial. The Kentucky Supreme Court denied review on June 7, 2023. Fifty days later, Welch filed a 28 U.S.C. § 2254 petition. The U.S. District Court for the Eastern District of Kentucky dismissed it as untimely. On appeal, the Sixth Circuit addressed whether the belated appeal preserved § 2244(d)(2) tolling.
Analysis
The Court reviewed § 2244, which generally allows one year after finality and pauses that period while a “properly filed” state collateral application remains “pending.” §§ 2244(d)(1), (2). An appeal is not a new application; its timeliness instead determines whether the application remains pending through appellate review. Carey v. Saffold, 536 U.S. 214 (2002); Evans v. Chavis, 546 U.S. 189 (2006). An otherwise late appeal preserves pendency if it satisfies a state-law exception. Pace v. DiGuglielmo, 544 U.S. 408 (2005).
Kentucky’s appellate rules permit case-law exceptions to the ordinary deadline. Ky. RAP 3(D). Kentucky requires a belated direct appeal when deficient counsel caused the default and extends that remedy to post-conviction proceedings. Commonwealth v. Wine, 694 S.W.2d 689 (Ky. 1985); Moore v. Commonwealth, 199 S.W.3d 132 (Ky. 2006). Welch cited Moore, and the state court granted his motion. Because Kentucky treats the timely filing of a notice of appeal as jurisdictional under Ky. RAP 2(A)(2), the Court reasoned that the state appellate court’s decision to hear Welch’s appeal further established that the case-law exception applied.
The Court rejected the Commonwealth’s labeling argument. Federal tolling is based on the procedure’s operation, according to the Court. Kentucky’s mechanism excuses the filing deadline. Saffold.
Sixth Circuit precedent similarly tolls Ohio delayed-appeal motions and ensuing appeals, the Court observed. DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006); Board v. Bradshaw, 805 F.3d 769 (6th Cir. 2015). Additionally, the Court noted that four other circuits recognize tolling under comparable procedures. 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); Williams v. Crist, 230 F. App’x 861 (11th Cir. 2006). A belated appeal “may toll” an unexpired clock but “may not resuscitate it,” the Court stated.
Only 140 days had elapsed when Welch sought a belated appeal, i.e., 96 before his collateral filing and 44 after the ordinary appeal deadline. State review tolled the period. Fifty more days elapsed before the federal filing. Thus, 190 of 365 days had run, making Welch’s petition timely, the Court held.
Conclusion
Accordingly, the Court reversed the District Court’s judgment. See: Welch v. Plappert, 169 F.4th 707 (6th Cir. 2026).
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