Roberts

MEMORANDUM ***

As Appellee acknowledges, the Ninth Circuit has interpreted the term “pending” in 28 U.S.C. § 2244 (d)(2) to include not merely the time a filing is before a court, but the time in between a court’s decision and the filing of an appeal. 1 Thus, the reason for dismissing the petition given by the district court must be rejected.

Appellee asserts that the district court’s decision should be affirmed on another ground. However, the argument advanced by Appellee was recently rejected by the Supreme Court.

In Artuz v. Bennett, 2 the Supreme Court defined the term “properly filed” for purposes of 28 U.S.C. § 2244 (d)(2), the statute in question here. The Supreme Court explained its interpretation as follows:

Thus, the Supreme Court made it clear that the tolling provision of § 2244(d)(2) applies whether a petition is proeedurally flawed or not, so long as the petition was properly filed. Accordingly, the Appellee’s argument must be rejected. No ground for affirming exists, and the district court’s decision must be reversed.

REVERSED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as…