Lima

MEMORANDUM *

James Lima appeals the district court’s denial of his petition for habeas corpus as untimely filed under the Antiterrorism and Effective Death Penalty Act’s one-year statute of limitations. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse and remand.

Because the parties are familiar with the facts and procedural history of the case, we need not repeat them here. Lima is entitled to statutory tolling of the one-year statute of limitations while his state habeas petitions were pending before the California Superior Court (March 21, 2005-May 13, 2005) and the California Supreme Court (November 22, 2005-August 23, 2006). In addition, Lima is entitled to statutory tolling for the period between these two petitions, because his state petitions were pending during this period. See Carey v. Saffold, 536 U.S. 214, 222-23 , 122 S.Ct. 2134 , 153 L.Ed.2d 260 (2002).

California’s unique system of collateral review (a petitioner files a new “original” petition in a higher court) means that a subsequent habeas petition in a higher state court is “pending” if it is part of the same “one full round” of review. Id. at 221-22 , 122 S.Ct. 2134 ; see also King v. Roe,…

dissenting:

I believe that it is incorrect to view Lima’s two state habeas petitions as part of “one full round” of state review, in light of the intervening federal habeas corpus petition filing and the dismissal for exhaustion. Lima did not argue on appeal to us that his state petitions were part of one round, and I would not take that position sua sponte. If, as I believe, the gap between Lima’s state filings is not tolled by statute, then timeliness turns on the issue of equitable tolling. As I see that issue, Lima showed insufficient diligence for equitable tolling. Accordingly, I respectfully dissent.