Donyel v. Brown v. Ernie Roe, Warden

Petitioner Donyel V. Brown appeals the district court’s dismissal of his petition for writ of habeas corpus as untimely, arguing that he is entitled to equitable tolling of the statute of limitations. The state counters that because Brown made his claim of equitable tolling for the first time in his objection to the magistrate judge’s findings and recommendation, the district court’s refusal to consider the claim must be upheld under United States v. Howell, 231 F.3d 615 (9th Cir.2000). We reverse and remand for consideration of Brown’s claim of equitable tolling.

I

Brown is serving a sentence of thirty-four years to life in California state prison. Proceeding pro se and in forma pauperis, he filed a petition for writ of habeas corpus in federal district court on November 24, 1999. The .Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires a state prisoner to file a federal habeas petition within one year after his state conviction becomes final, or one year after the effective date of AEDPA, whichever is later. See 28 U.S.C. § 2244 (d); Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir.2001). Although Brown’s conviction became final prior to the…