01-2628 Carter v. Litscher

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“[Austin v. Mitchell, 200 F.3d 391 (6th Cir. 1999)] concluded that tolling occurs under sec.2244(d)(2) only if a prisoner includes in his state collateral attack at least one of the issues raised in the federal challenge. The court reasoned: ‘Otherwise, the purpose of tolling, which is to provide the state courts with the first opportunity to resolve the prisoner’s federal claim, is not implicated.’ 200 F.3d at 395. This is not correct; it confuses tolling with exhaustion. A state court must be given the first opportunity to address the federal issue, see 28 U.S.C. sec.2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838 (1999); but this exhaustion requirement can be satisfied on direct appeal as well as on collateral attack. Usually it is preferable to raise the federal question as soon as possible, which means at trial and on direct appeal. Cf. Wainwright v. Sykes, 433 U.S. 72 (1977). This does not imply, however, that state prisoners must proceed immediately from their direct appeals to federal collateral attacks. A state collateral proceeding based solely on state-law issues may avoid the need for federal relief, and a tolling rule permits prisoners to pursue such theories in state court without jeopardizing their ability to raise the federal constitutional issues later in federal court, if that proves to be necessary.”

Reversed and remanded.

Appeal from the United States District Court for the Eastern District of Wisconsin, Gorence, Mag. J., Easterbrook, J.