176 F3d 1043 Al-Din v. Bowersox

176 F.3d 1043

Mufid AL-DIN, also known as Charles A. Parker, Appellee,
v.
Michael BOWERSOX, et al., Appellants.

No. 97-3598.

United States Court of Appeals,
Eighth Circuit.

Submitted Sept. 23, 1998.
Filed April 13, 1999.

Appeal from the United States District Court for the Western District of Missouri; Howard F. Sachs, Judge.

Cassandra K. Dolgin, Asst. Atty. Gen., Jefferson City, MO, argued (Frank A. Jung, Asst. Atty. Gen., Jefferson City, MO, on the brief), for Appellants.

Daniel L. Ringwald, Arnold, MO, argued, for Appellee.

Before: BOWMAN, Chief Judge, and McMILLIAN, RICHARD S. ARNOLD, FAGG, WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, MURPHY and KELLY,1 Circuit Judges, En Banc.

McMILLIAN, Circuit Judge.


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1

Respondent Michael Bowersox appeals from an order entered in the United States District Court2 for the Western District of Missouri denying his motion to dismiss Mufid Al-Din's petition for writ of habeas corpus as untimely filed under 28 U.S.C. § 2244(d)(1). Parker v. Bowersox, 975 F.Supp. 1251 (W.D.Mo.1997) (order denying respondent's motion to dismiss and granting respondent's motion for an interlocutory appeal). Jurisdiction in the district court was based upon 28 U.S.C. §§ 1331, 2254. Jurisdiction in this court is based upon 28 U.S.C. § 1292(b). In an earlier proceeding, a divided panel of this court affirmed. We subsequently vacated the panel opinion and granted respondent's suggestion for rehearing en banc. Now, in accordance with our en banc opinion filed on this date in the consolidated cases under the title Nichols v. Bowersox, 172 F.3d 1068 (8th Cir.1999) (en banc), we affirm the order of the district court denying respondent's motion to dismiss. See 8th Cir.R. 47B.

2

BEAM, Circuit Judge, dissenting.

3

I respectfully dissent for the reasons I advance in Nichols v. Bowersox, 172 F.3d 1068 and Crane v. Dormire, 172 F.3d 1068. Accordingly, I would either dismiss this case or remand it to the district court with directions to grant appellants' motion to dismiss.

1

The Honorable John D. Kelly passed away on October 21, 1998. This opinion is consistent with his vote at the en banc conference following oral argument on September 23, 1998

2

The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri