Terhune

MEMORANDUM **

Melvin David Smith, a California state prisoner, appeals pro se the district court’s denial as untimely under 28 U.S.C. § 2244 (d)(1) his petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we vacate and remand.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year statute of limitations on habeas corpus petitions filed by state prisoners in federal court. 28 U.S.C. § 2244 (d)(1). State prisoners, like Smith, whose convictions became final prior to the AEDPA’s enactment on April 24, 1996, have a one-year grace period in which to file their petitions. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999) (recognizing that AEDPA’s limitations period does not run against any state prisoner before the date of AEDPA’s enactment). The grace period, however, is tolled by statute any time during which a properly filed application for post-conviction relief is pending before the state court. See Nino v. Galaza, 183 F.3d 1003, 1005-06 (9th Cir.1999), cert. denied, 529 U.S. 1104 , 120 S.Ct. 1846 , 146 L.Ed.2d 787 (2000).

After the district court rendered its decision in this case, we applied…