Small

*345 MEMORANDUM **

California state prisoner Shelley Lamont Small appeals the district court’s dismissal as untimely of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253 . Reviewing de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), we vacate and remand.

The district court correctly found that, as of the filing of Small’s state habeas petition in the California Court of Appeal, 273 days had elapsed on his AEDPA one year statute of limitations. Small therefore had 92 days remaining in which to file a § 2254 habeas petition in federal court.

Small contends that he is entitled to statutory tolling from the date he filed his first state habeas petition (December 20, 2000) to the date of the California Supreme Court’s denial of that petition (December 19, 2001). The statute of limitations is tolled under 28 U.S.C. § 2254 (d)(2) during the time state post-conviction proceedings are “pending,” and that tolling applies “from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner’s final collateral challenge,” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.1999). However, a California…