Micklus v. Stewart

107 F. App'x 107

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 18, 2004
• Docket: No. 04-15067
• Status: Published

Opinion

MEMORANDUM

**

Arizona state prisoner Gregory Bernard Micklus appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition, challenging his conviction for arson of an occupied structure. The district court dismissed based on its finding that the petition was untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)’s one year statute of limitations.

Micklus contends that his federal habeas petition was timely filed within the AED-PA’s one-year statute of limitations period because: after the Arizona Supreme Court denied review on direct appeal, the limitations period did not begin to run until the ninety-day period for filing a petition for certiorari with the United States Supreme Court had expired; before the ninety days passed, Miklus filed for state post-conviction relief and statutory tolling started; and Miklus filed his federal petition less than one year after state relief was denied and statutory tolling ended. Respondent concedes that the federal habeas petition was timely filed, and that the district court erred in dismissing the petition as untimely. Our examination of the record supports the parties’ conclusion that the habeas petition was timely filed, and we vacate the district court’s dismissal. See 28 U.S.C. § 2244(d)(2); Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir.1999). We remand to the district court for further proceedings.

VACATED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.