Neuschmid

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCOIS P. GIVENS, No. 2:17-cv-0328 KJM CKD P 12 Plaintiff, ORDER 13 v. 14 ROBERT NEUSCHMID, 15 Defendant. 16 17 18 This matter is before the court on the assigned Magistrate Judge’s recommendation to 19 deny the state’s motion to dismiss. See Mot., ECF No. 17; F&Rs, ECF No. 35; Objections, ECF 20 No. 36; Reply, ECF No. 39. As explained below, the court declines to adopt the magistrate 21 judge’s recommendation. 22 Each claim in a state prisoner’s federal habeas corpus petition must be filed within a one- 23 year statute of limitations period. See 28 U.S.C. § 2244(d)(1); Mardesich v. Cate, 668 F.3d 1164, 24 1171 (9th Cir. 2012). That limitations period is tolled while “a properly filed application for State 25 post-conviction or other collateral review . . . is pending.” Id. § 2244(d)(2). An application is 26 “pending” not only while a state court considers a filed petition or appeal, but also during the 27 interval “between a lower state court’s decision and the…