Brown

MEMORANDUM **

Tommy Ray Brown appeals from the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. We reverse and remand.

The district court determined that Brown’s habeas petition was untimely under the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) one-year limitations period, having been filed 40 days 2 after the period had expired. As a preliminary matter, it is important to examine the district court’s calculation of Brown’s limitations period because decisions rendered by this court after the district court’s decision in this case require that the statutory tolling period under 28 U.S.C. § 2244 (d)(2) be recalculated. The district court tolled the limitations period while Brown’s final habeas petition was filed with the California Supreme Court. That petition was denied in an order dated May 28, 1997. The district court ended the tolling period on that date. We have subsequently held that a dismissal of a habeas petition by the California Supreme Court is not final for the purposes of § 2244(d)(2) until 30 days after the denial is filed. Lott v. Mueller, 304 F.3d 918, 921 (9th Cir.2002) (citing Bunney v. Mitchell, 262 F.3d 973, 974 (9th…

I agree that the district court’s denial of Brown’s habeas petition should be reversed and this case remanded for further *582 proceedings. As noted by the majority, decisions rendered by this court after the district court had denied Brown’s petition have altered the tolling calculation and may provide a basis for Brown to avoid the limitations bar.

I write separately, however, to express my disagreement with the majority’s specific conclusion that “the district court clearly erred in basing its finding [that Brown had access to the AEDPA on September 5, 1996,] on the Curtis declaration” because that “declaration based on guesswork was not sufficiently reliable to support the district court’s factual finding.” Memorandum at 3-4. The Curtis declaration was admissible and relevant under Fed.R.Evid. 406 as “[e]vidence ... of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, ... to prove that the conduct of the ... organization on a particular occasion was in conformity with the habit or routine practice.” Its admission by the district court cannot properly be deemed to be plain error or an abuse of discretion. At…