See § 10.73.100(1). He also complied with the procedural requirements for filing a petition based on newly discovered evi dence: he filed the petition “with due diligence” after discovering the new evidence. Id. Dictado obtained the affidavit he claims is new evidence in February 1997 and he filed his petition the same month. Therefore, Dictado’s petition must be deemed “properly filed” even if it lacked merit. See Lovasz, 134 F.3d at 149 (“[W]e reject the notion that a meritless [state] petition cannot constitute ‘a properly filed application’ under § 2244(d)(2).”). The majority does not dispute the Third Circuit’s analysis in Lovasz. Rather, it claims this panel is bound by the Washington Supreme Court’s ultimate conclusion that Dictado’s petition was time-barred (W.D.Tex.1998) (<HOLDING>); Ellis v. Johnson, 11 F.Supp.2d 695, 697, 698
holding that seventh application for postconviction relief which was rejected because evidence on which it was based was not properly authenticated was properly filed holding that third state petition for postconviction relief that was dismissed as an abuse of the writ was properly filed holding that petition was properly filed even though the state court denied it as procedurally barred because the petition was delivered to and accepted by the state court holding that second state petition for postconviction relief that was dismissed as frivolous and patently without merit was properly filed holding that a second or subsequent state petition for postconviction relief filed according to the procedural rules of the state constitutes a properly filed application  without regard to the merits of the petition