Yokely
Yokely v. Ayers
Opinion
Lead Opinion
MEMORANDUM **
Shon Yokely appeals the dismissal of his habeas corpus petition for failure to file within the one-year limitations period prescribed by 28 U.S.C. § 2244 (d)(1). We reverse.
The parties do not dispute that absent some form of tolling, Yokel/s petition was due by April 24, 1997. Calderon v. U.S. Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir.1997), overruled on other *443 grounds by 163 F.3d 530 , 540 (9th Cir. 1998) (en bance) (establishing deadline for federal habeas petitions involving convictions that became final before enactment of AEDPA’s one-year limitations period). Nor do they dispute that Yokely is entitled to statutory tolling during the 228 days that his habeas petitions before the state courts were under review. See 28 U.S.C. § 2244 (d)(2). The state argues however that Yokely is not entitled to statutory tolling for the 513-day gap between the denial of his petition by the superior court and the filing of his subsequent petition before the state supreme court. We disagree.
An application for post-conviction relief in state courts is “pending” within the meaning of § 2244(d)(2) during the “intervals between a lower court decision and a fifing of a…