Millsap
Millsap v. Small
Opinion
Lead Opinion
MEMORANDUM **
Paul S. Millsap appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as time-barred. See 28 U.S.C. § 2244 (d)(1). We reverse and remand.
Millsap was entitled to statutory tolling while his first state habeas petition was pending. See Carey v. Saffold, — U.S. -, 122 S.Ct. 2134, 2137-41 , — L.Ed.2d- (2002). Tolling also applied while his second set of petitions was pending in the state courts. See Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002). Further, it is apparent that the approximate thirty-day delays between the trial-appellate and appellate-Supreme court filings during the second set of state habeas petitions were not unreasonable. Cf. Carey, — U.S. at-, 122 S.Ct. at 2139-42 (remanding to Ninth Circuit for consideration of whether four and one-half month delay in filing for habeas relief in the California Supreme Court was unreasonable). Because with tolling, less than one year elapsed from the date that Mill-sap’s conviction became final to the date when he ultimately filed his federal habeas petition, the district court erred by dismissing it as untimely.