Kenneth Clark v. Matthew Cate

MEMORANDUM

Kenneth Clark (“Clark”), a state prisoner, appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition challenging his jury conviction of second-degree murder. Because the facts and procedural history are familiar to the parties, we do not recite them here except as necessary to explain our disposition. We have jurisdiction under 28 U.S.C. §§ 2253 (a) and 1291. We vacate the district court’s dismissal of Clark’s habeas petition and remand.

1. We agree with the district court’s conclusion that Clark’s federal habeas petition was untimely filed. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner generally must file a federal habeas petition within one year of the date his conviction became final. 28 U.S.C. § 2244 (d)(1). (Clark’s conviction became final on September 12, 2006.) Statutory tolling, however, applies throughout the “time during which a properly filed application for State post-conviction or other collateral review ... is pending.” § 2244(d)(2). California has no set deadline for filing state habeas petitions, so long as they are “filed within a reasonable time.” Banjo v. Ayers, 614 F.3d 964, 968…