Turley v. Estep

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 18, 2005
• Docket: 04-1297
• Status: Published

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 26, 2005 TENTH CIRCUIT Clerk of Court

DAVID TURLEY,

Petitioner-Appellant, v. Nos. 04-1297 & 04-1300 AL ESTEP, Warden, Limon (D.C. Nos. 04-Z-789 & 04-Z-790) Correctional Facility, and THE (D.Colo.) ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents-Appellees.

ORDER

Before BRISCOE, LUCERO, and MURPHY , Circuit Judges.

Petitioner David Turley has filed a petition for panel rehearing. The

respondents have provided a response. Our Order and Judgment filed in these

cases on August 18, 2005, affirmed the district court’s judgment dismissing

Turley’s petition for a writ of habeas corpus as untimely filed. In support of that

ruling, we concluded Turley was not entitled to the equitable tolling of the one-year

statute of limitations because he had not availed himself of the “stay-and-abeyance”

procedure. In consideration of the additional pleadings provided to the court by the

parties with their rehearing briefs, we conclude Turley has sufficiently complied

with the “stay-and-abeyance” procedure to carry his burden of demonstrating that

equitable tolling should apply. Accordingly, we GRANT Turley’s petition for

rehearing, VACATE the Order and Judgment filed in these cases on August 18,

2005, REVERSE the district court’s order dismissing Turley’s petition for a writ of

habeas corpus, and REMAND these cases for further proceedings. All remaining

motions, including Turley’s request for appointment of counsel, are DENIED.

Entered for the Court

Mary Beck Briscoe Circuit Judge