Anthony (Tony) Gaston v. Anna Ramirez Palmer

ORDER GRANTING PETITION FOR REHEARING AND AMENDING OPINION

ORDER

In light of the Supreme Court’s opinion in Evans v. Chavis, — U.S. -, 126 S.Ct. 846 , 163 L.Ed.2d 684 (2006), we grant the petition for panel rehearing.

In Gaston v. Palmer, 417 F.3d 1030 (9th Cir.2005), we held that habeas petitioner Anthony Gaston had timely filed in federal district court. In so holding, we concluded that he was entitled to “gap” or “interval” tolling for the periods between his applications for habeas corpus in state court, and that he therefore filed within the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act (“AED-PA”) (2000). 28 U.S.C. § 2244 (d)(1). The gaps between Gaston’s relevant filings in state court were as follows:

(1)Gaston’s first application for habeas corpus was filed in the California Court of Appeal. That application was denied on February 27, 1996. AEDPA’s effective date is April 24, 1996. Absent some kind of tolling, the one-year statute of limitations began running on that date. Ga-ston’s second application was filed in Superior Court on June 9, 1997. The gap between the denial of his first application and the filing of his second was…