Jose Osvaldo Arteaga v. Kathleen Allison

MEMORANDUM

Jose Osvaldo Arteaga appeals the denial of his petition for a writ of habeas corpus as untimely under the 1-year limitations period set forth in 28 U.S.C. § 2244 (d)(1)(A). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2258(a), and reverse and remand in part and affirm in part.

While acknowledging that his federal ha-beas petition was filed after the 1-year limitations period had elapsed, Arteaga argues that AEDPA’s tolling provision, 28 U.S.C. § 2244 (d)(2), renders it timely. That provision states that: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” In addition, the gaps between state court denials of habeas petitions and the filing of subsequent state habeas petitions are subject to tolling as well, if the petitions were timely filed; and, in California, where there are no fixed deadlines, the petitions must simply be filed within a “reasonable time.” Evans v. Chavis, 546 U.S. 189, 192-93 , 126 S.Ct. 846 , 163 L.Ed.2d 684 (2006) (quoting In re Harris, 5 Cal.4th 813…