Christopher Smith v. Larry Small

MEMORANDUM

Christopher Dale Smith appeals the district court’s dismissal of his petition for habeas corpus as untimely filed under the Antiterrorism and Effective Death Penalty Act’s (AEDPA) one-year statute of limitations. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand.

The State concedes that Smith is entitled to statutory tolling for the periods during which his petitions were pending before the California Superior Court and the California Court of Appeal and for the interval between those petitions. See 28 U.S.C. § 2244 (d)(2). At issue is the 85-day delay between the California Court of Appeal’s denial of Smith’s petition and his subsequent filing of a petition in the California Supreme Court. The district court concluded that this delay was unreason able, and as a result denied Smith statutory tolling for those 85-days, making Smith’s federal petition untimely.

We conclude to the contrary that Smith’s petition to the California Supreme Court was filed within a “reasonable time.” See Evans v. Chavis, 546 U.S. 189, 198 , 126 S.Ct. 846 , 163 L.Ed.2d 684 (2006) (holding that if the state supreme court’s disposition does not state whether the…