## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-1334

___________ Randal R. Steen, *
* Appellant, * * Appeal from the United States v. * District Court for the * District of North Dakota. Timothy Schuetzle, * * [UNPUBLISHED] Appellee. *

___________ Submitted: April 17, 2009 Filed: May 7, 2009

___________ Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

___________ PER CURIAM. North Dakota prisoner Randal R. Steen appeals the district court’s order denying his 28 U.S.C. § 2254 habeas petition as untimely. We conclude Steen’s petition was timely filed and re verse the district court’s order dismissing the petition.

Steen was convicted of manufacturing methamphetamine, possessing methamphetamine, and possessing drug paraphernalia under North Dakota law. Steen’s convictions were affirmed on direct appeal and his first application for state postconviction relief was denied. State v. Steen , 690 N.W.2d 239, 241 (N.D. 2004). The Supreme Court denied certiorari on Oc tober 3, 2005. Steen v. North Dakota , 546 U.S. 853 (2005). On July 20, 2006, Steen prope rly filed a second application for state-2- postconviction relief. Relief was denied, Steen timely appealed, and the denial was affirmed on July 25, 2007. Steen v. State , 736 N.W.2d 457, 459 (N.D. 2007). Steen then filed a petition for rehearing of the denial, after receiving extensions on the deadline. The North Dakota Supreme Court denied rehearing on October 16, and issued its mandate concluding the s econd postconviction action on October 29.

On December 5, 2007, Steen placed his federal habeas petition in the prison mail. The district court denied the pe tition as filed beyond the one-year statute of limitations in the Antiterrorism and Effec tive Death Penalty Act (AEDPA). See28 U.S.C. § 2244(d)(1). The district court correctly determined that the limitations period started to run when Steen’s convicti on became final by the denial of certiorari, and that the date of the denial should not be counted towards the limitations period. See Kreutzer v. Bowersox , 231 F.3d 460, 461-62 (8th Cir. 2000) (petitioner’s state judgment became final, and thus statute of limitations began running, when his petition for writ of certiorari wa s denied); Wright v. Norris , 299 F.3d 926, 927 n.2 (8th Cir. 2002) (Fed. R. Civ. P. 6(a) governs calculation of AEDPA time limits); Fed. R. Civ. P. 6(a) (excluding day of event beginning time period from calculation). The limitations period thus ran for 290 days, fro m October 3, 2005 to July 20, 2006, when Steen properly filed his s econd application for state postconviction relief. See 28 U.S.C. § 2244(d)(2) (limitations period tolled while properly filed state postconviction action is pending); Painter v. Iowa , 247 F.3d 1255, 1256 (8th Cir. 2001) (time between end of direct revi ew and filing of postconvicti on motion is counted towards one-year limitations period).

Without considering the pe tition for rehearing, the district court decided the limitations period started running again when the denial of Steen’s second postconviction application was affirmed on July 25, 2007. Th e limitations period stopped running when Steen mailed his federal habeas petition on December 5. Thus, the district court concluded Steen’s fe deral habeas petition was untimely (290 + 133 = 423 days). Steen appealed, and this c ourt granted a certificate of appealability on-3- the timeliness issue. According to Steen, his petition was timely because the limitations period should have been tolle d while his petition for rehearing was pending. We agree.

This court reviews de novo the district court’s d ecision to dismiss a § 2254 habeas petition as untimely. SeeBoston v. Weber , 525 F.3d 622, 624 (8th Cir. 2008). There is a one-year limitations period applicable to habeas petitions filed by state prisoners. 28 U.S.C. § 2244(d)(1). The limita tions period is tolled while a “properly filed application for State post-conviction or other collateral revi ew . . . is pending.” Id. § 2244(d)(2). A state postconviction ac tion “remains pending” for the purpose of federal tolling “until the app lication has achieved final resolution through the State’s postconviction procedures.” Carey v. Saffold , 536 U.S. 214, 220 (2002). “State review ends when the state courts have finally resolved an application for state postconviction relief.” Lawrence v. Florida , 549 U.S. 327, 332 (2007). “After the State’s highest court has issued its mandateor denied review, no other state avenues for relief remain open.” Id.

Whether Steen’s state application fo r postconviction relief was pending for federal habeas purposes is governedby federal law. Payne v. Kemna , 441 F.3d 570, 571 (8th Cir. 2006). The governing federa l law requires an examination of the particular state’s procedures to decide when the process has reached completion or final resolution. Id. at 572. A state postconviction action remains pending during the appeal period. See Williams v. Bruton , 299 F.3d 981, 983 (8th Cir. 2002); see also Faulks v. Weber , 459 F.3d 871, 873-74 (8th Cir. 2006) (federal limitations period not tolled under § 2244(d)(2) during time for filing petition for rehearing of appeal, where state habeas petitioner had not timely appeal ed and thus could not seek rehearing under South Dakota law); Serrano v. Williams , 383 F.3d 1181, 1185 (10th Cir. 2004) (time allowed for appeals, including time for filing petition for rehearing, tolls AEDPA limitations period). Because the Mi ssouri Court of Appeals has held an appeal is not complete or final until the mandate is issued, rather than when the-4- opinion is issued, this court has conclude d a Missouri petitioner’s state postconviction relief proceedings remain pending for purpos es of § 2244(d)(2) until issuance of the mandate following affirmance of the denial of relief. Payne , 441 F.3d at 571 (citing Nyland v. Moore , 216 F.3d 1264, 1267 (11th Cir. 2000) (per curiam) (under Florida law, state postconviction motion is pending until mandate issues; federal limitations period tolled until appellate court issuedmandate after denying rehearing of its opinion affirming denial of postconviction relief)).

Like the Missouri courts, the North Dakot a Supreme Court has stated an action is “not finally determined, or comp leted” until the mandate issues. See Finch v. Backes , 491 N.W.2d 705, 707 (N.D. 1992) (holding statute of limitations on legal malpractice action should have been to lled until appellate mandate issued in underlying lawsuit, because lawsuit wa s not completed until then); see also N.D. Cent. Code § 28-05-10 (2006) (civil action deemed pending from time of commencement until final determination on app eal). Consequently, under Payne , 441 F.3d at 572, Steen’s second state postconviction action remained pending for the purpose of federal tolling until the North Dakota Suprem e Court issued its mandate concluding Steen’s postconviction appeal on October 29, 2007. On that date, the limitations period started to run again, and did so for 37 days until Steen mailed his federal habeas petition on December 5. Thus, St een’s habeas petition was timely (290 + 37 = 327 days).

Accordingly, we reverse and remand for further proceedings.

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