Bailey

MEMORANDUM **

California state prisoner Johnel M. Bai *662 ley appeals from the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely under 28 U.S.C. § 2254 (d). We have jurisdiction pursuant to 28 U.S.C. § 2253 . We review de novo a district court’s dismissal of a habeas petition on statute of limitations grounds, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we vacate and remand.

Bailey contends that the district court erred by dismissing his habeas petition as untimely because the statute of limitations should have been tolled during the gaps between his successive petitions. We disagree.

The AEDPA’s one-year statute of limitation period is tolled during that pendency of a properly filed application for state post-conviction relief. See 28 U.S.C. § 2244 (d)(2). In Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.1999), we concluded that the statute of limitations is tolled where a petitioner is properly pursuing post-conviction relief, and that the period is tolled during the intervals between one state court’s disposition of a habeas petition and the filing of a habeas petition at the next level of the state court system. See also…