Brown v. Carey , 75 F. App'x 642 ( 2003 )

MEMORANDUM^**

California state prisoner, Roy Lee Brown, Jr., appeals pro se the dismissal of his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we vacate and remand.

Brown contends that his § 2254 petition was timely filed because his state habeas petitions statutorilly tolled the Antiterrorism and Effective Death Penalty Act’s (AEDPA) one-year statute of limitations. We agree.

Brown is entitled to tolling during the time he was seeking one full round of collateral review by the California courts. See 28 U.S.C. § 2244(d); Delhomme v. Ramirez, No. 00-56148, 2003 WL 21947183, at *3 (9th Cir. Aug. 15, 2003) (per curiam) (holding that overlapping state habeas petitions begin a separate round of review and do not disturb the pendency of petitioner’s first round of review); Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (reiterating that exhaustion requires one full round of review by the state courts, during which time, the statute of limitations is tolled because petitioners’ applications are pending).

Given that the statute of limitations did not begin to run until September 26, 1997, see Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir.2001), Brown’s federal petition was timely.¹

VACATED AND REMANDED for further proceedings.

** 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.

1 . Brown's motion for appointment of counsel is denied as unnecessary.