Ricky Lee Welch was convicted in Kentucky state court in 2017 of robbery, kidnapping, burglary, and being a persistent felony offender, receiving a 50-year sentence. After his direct appeal failed, he filed a motion to vacate his conviction in state court in 2019, alleging ineffective assistance of trial counsel. The state trial court denied this motion in 2020. Under Kentucky law, appeals from such decisions must generally be filed within 30 days. However, Welch's appointed counsel failed to file a timely notice of appeal, citing the pandemic. Consequently, Welch filed a motion for a belated appeal six weeks after the deadline, invoking a Kentucky common-law exception that allows courts to hear appeals when the delay is caused by deficient counsel. The state appellate court granted the motion and heard the case, eventually affirming the denial of relief. The Kentucky Supreme Court declined review in 2023. Welch then filed a federal habeas petition in July 2023. The district court dismissed the petition as untimely, reasoning that the appeal was untimely under state law and therefore did not toll the federal statute of limitations. The Sixth Circuit granted a certificate of appealability to review whether the belated appeal qualified for tolling.
The court analyzed the Antiterrorism and Effective Death Penalty Act (AEDPA), which imposes a one-year statute of limitations on federal habeas petitions but pauses that clock while a 'properly filed application for State post-conviction or other collateral review' is 'pending.' The central issue was whether Welch's belated appeal counted as a pending application. The Supreme Court has established that an application is pending until the ordinary state collateral review process is complete. While an untimely appeal generally ends the pendency of a petition, the Court has also held that if a petitioner's tardy appeal fits within an exception to state timeliness rules, the application remains pending. The Sixth Circuit found that Kentucky law provides a well-established exception to the 30-day appeal deadline for cases where the failure to file on time results from the lack of effective assistance of counsel. This exception, recognized in Kentucky case law and incorporated into the state's rules of appellate procedure, allows courts to hear appeals that would otherwise be time-barred. Because Welch's motion for a belated appeal fell squarely within this exception, the state appellate court's decision to hear his case demonstrated that the appeal was timely under Kentucky law. Therefore, the petition remained pending during the pendency of the state appeal. The court noted that this interpretation aligns with Sixth Circuit precedent regarding similar Ohio procedures. The court clarified that while such motions toll the federal clock, they do not restart it if the one-year period had already expired before the motion was filed. In Welch's case, the federal clock had not run out when he filed his motion for a belated appeal, so the tolling applied, rendering his subsequent federal petition timely.
The decision clarifies that prisoners in Kentucky (and potentially other circuits with similar state rules) can rely on motions for belated appeals based on ineffective assistance of counsel to toll the federal habeas statute of limitations. This ensures that the time spent litigating these state motions does not count against the one-year federal deadline. However, the ruling reinforces a critical limit: if the one-year federal clock has already expired before a prisoner files a motion for a belated appeal, the motion cannot revive the time-barred claim. The case is remanded to the district court to proceed with the merits of Welch's habeas petition.
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