"Pending" under AEDPA
October 28, 2004
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1), a prisoner has only one year after entry of a final judgment in his case to file a petition for a writ of habeas corpus. However, the one-year limitation is tolled when the prisoner has a state habeas petition pending. What does "pending" mean?
Judge Fletcher, writing for a 2-1 panel, held:
“Pending,” in this context, includes the intervals between the dismissal of one state application and the filing of the next one. Because Gaston is allowed tolling for the time his state court applications were pending, his federal habeas petition is timely.
Gatson v. Palmer, No. 01-56367, (9th Cir., Oct. 28, 2004).