Russell

MEMORANDUM **

Arizona state prisoner Depree Devine Russell appeals the district court’s judgment dismissing with prejudice his 28 U.S.C. § 2254 petition for writ of habeas corpus as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we remand for further proceedings.

Key to the question of whether Russell’s federal habeas petition is timely is how long his final state application for post-conviction relief was “pending” for tolling purposes under 28 U.S.C. § 2244 (d)(2). See Biggs v. Duncan, 339 F.3d 1045 (9th Cir.2003) (holding that petitioner is not entitled to tolling for the time between successive rounds of state post-conviction relief proceedings). Russell contends that he filed the petition on May 8, 2000, the date on which he delivered it to prison authorities, whereas the state contends that the correct filing date is November 8, 2000, the date on which Russell’s petition is noted on the Maricopa County Superior Court docket.

Contrary to the state’s assertion, Russell did not waive this argument in district court. Russell listed May 8, 2000 as the date on which he filed his last state petition in both the original and amended federal petitions filed in…