Saffold

Opinion by Judge CANBY; Dissent by Judge O’SCANNLAIN.

Tony Eugene Saffold is a state prisoner appealing the district court’s dismissal of his federal petition for habeas corpus. The district court concluded that Saffold had failed to satisfy the one-year statute of limitations for a state prisoner filing a federal habeas petition. See 28 U.S.C. § 2244 (d)(1). Whether or not Saffold’s petition is barred by the statute of limitations turns in part on a calculation of the period during which the federal statute was tolled while Saffold’s petitions for state habeas relief were “pending” in the California courts. See 28 U.S.C. § 2244 (d)(2). After the district court issued its order, we decided in another case how the tolling period for exhaustion of state remedies is to be determined. See Nino v. Galaza, 183 F.3d 1003 (9th Cir.1999), ce rt. denied, — U.S. -, 120 S.Ct. 1846 , 146 L.Ed.2d 787 (2000). We now apply Nino and conclude that the district court- erred by failing to toll the federal statute of limitations for the entire period during which Saffold pursued state habeas relief.

We also conclude that the “mailbox” rule for pro se prisoners applies to Saffold’s petitions to the…

dissenting:

Because I disagree with the majority’s interpretation of Nino v. Galaza, 183 F.3d 1003 (9th Cir.1999), I must respectfully dissent from its application of the federal statute of limitations to state habeas relief and the court’s judgment that the district court erred in denying the federal petition.

I

Even if we assume that the majority’s newly announced adoption of the “mailbox” rule is appropriate, many additional difficulties persist in its interpretation of Nino . Saffold contends, and the majority agrees, that the statute of limitations should be deemed tolled for the entire process of state collateral challenge. I cannot agree. In a case involving such dilatory behavior as this, the tripartite process cannot be treated as one solid block of tolled time; rather, the clock must continue to ran in *1092 the periods of excessive delay between the three separate habeas petitions.

In Nino , this court held that “the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner’s final collateral challenge.” Id. at 1006 . While at a superficial level, this statement may appear to…