295 F3d 1046 Allen v. Lewis

295 F.3d 1046

James Darryl ALLEN, Petitioner-Appellant,
v.
Gail LEWIS, Warden, Respondent-Appellee.

No. 01-15503.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 18, 2002.

Filed July 15, 2002.

David M. Porter, Assistant Federal Public Defender, Sacramento, CA, for the petitioner-appellant.

Peggy S. Ruffra, Supervising Deputy Attorney General, and Dane R. Gillette, Senior Assistant Attorney General, San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California, Ronald M. Whyte, District Judge, Presiding. D.C. No. CV-99-20054-RMW.

Before SCHROEDER, Chief Judge, REINHARDT, KOZINSKI, O'SCANNLAIN, TROTT, RYMER, KLEINFELD, THOMAS, McKEOWN, TALLMAN and RAWLINSON, Circuit Judges.

ORDER


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1

The district court held that Allen's petition for a writ of habeas corpus under 28 U.S.C. § 2254 was filed sixteen days after the AEDPA one-year statute of limitations had expired. See 28 U.S.C. § 2244(d). After the panel opinion affirmed the district court, we decided Bunney v. Mitchell, 262 F.3d 973 (9th Cir.2001), where we held that the California Supreme Court's denial of a petition for collateral relief does not become final until thirty days after the denial is issued. Id. at 974 (citing Rule 24 of the California Rules of Court). We so held after the California Supreme Court had declined to answer our certified question on this point. Id. (citing Bunney v. Mitchell, 249 F.3d 1188, 1188-89 (9th Cir. 2001)). Under Bunney, which we now reaffirm, the petition in this case was timely. The judgment of the district court is therefore REVERSED and the matter REMANDED for consideration of the petition for habeas corpus.