* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### April 7, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

WILLIAM RAY PRATT,

Petitioner-Appellant,

v. MIKE MULLIN, Warden,

Respondent-Appellee. No. 05-6008 (D.C. No. 04-CV-1070-F) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , BRISCOE , andLUCERO , Circuit Judges.

Petitioner-appellant William Ray Pratt, a prisoner of the State of Oklahoma, appeals from the dismissal of his petition for a wr it of habeas corpus filed under 28 U.S.C. § 2254 as untimely under the Antiterroris m and Effective Death Penalty-2-

Act of 1996 (AEDPA). See 28 U.S.C. § 2244(d)(1). We have jurisdiction unde r 28 U.S.C. §§ 1291 and 2253, and we reverse and remand for further proceedings.
I. Background An Oklahoma state jury convicted petitioner of six counts of first degree rape by instrumentation and one count of sexual abu se of a child. On October 15, 2002, the Oklahoma Court of Criminal Appeals (OCCA) affirmed petitioner’s convictions with the exception of one count of rape , which the court reversed and remanded with instructions to dismiss. Petitioner did not seek a writ of certiorari from the United States Supreme Court to appeal his convictions. Rather, on November 10, 2003, petitioner filed a pro se applic ation for post-conviction relief in the state district court, which ordered the appl ication stricken on November 14, 2003, because it exceeded the page limit establishe d by a local court rule. R., Doc. 7, Ex. 3. On November 25, 2003, petitione r filed a motion in the state district court for permission to exceed the establi shed page limit. While that motion was pending, petitioner mailed a second peti tion for post-conviction relief to the state district court, which was file-stampedJanuary 5, 2004. On January 8, 2004, the state district court denied petitioner’s motion to exceed the established page limit with respect to the first state petition . The court denied the second petition on June 29, 2004, and the OCCA affirmed th at denial on August 10,-3-

2004. Petitioner received notice of the OCCA decis ion via the prison mail system on August 19, 2004. On August 20, 2004, petitioner, still acting pro se , signed and delivered his federal habeas petition to prison officials. In th e petition, petitioner sought relief based on alleged violations of due process and inef fective assistance of trial and appellate counsel. The petition was filed in the d istrict court on August 30, 2004, and assigned to a magistrate judge for consideratio n. See 28 U.S.C. § 636. The magistrate judge did not reach the merits of the pe tition, however, finding it was filed one day late. The magistrate judge reviewed the law that governs the application of AEDPA’s one-year limitations period. R., Doc. 14, at 3-4. Because petitioner did not seek review in the Supreme Court, the magistrat e judge determined that the one-year period for petitioner to file his federal habeas petition began on January 14, 2003, one day after the ninety-day peri od for seeking certiorari expired. Id. at 3. Therefore, absent either statutory or equit able tolling, petitioner had until January 14, 2004, to file his federal habeas petition. Id. at 4. The magistrate judge determined that the time durin g which petitioner’s second application for state post-conviction relief was pe nding should be tolled under 28 U.S.C. § 2244(d)(2). That period ran from the d ate of the filing of the application on January 5, 2004, through the date of the OCCA’s order affirming-4-

the denial of relief, August 10, 2004. See id. at 5. The magistrate judge did not toll the time for petitioner’s first application, h owever, because it was not properly filed within the meaning of § 2244(d)(2). Based on the statutory period tolled, the magistrate judge determined that petiti oner had until August 19, 2004, to file his federal petition. In light of the fede ral prison mailbox rule, see Houston v. Lack , 487 U.S. 266, 270 (1988), the magistrate judge fo und that petitioner filed his habeas petition when he presented it for mailing on August 20, 2004, but that it was one day late. The magistrate judge declined to apply the doctrine of equitable tolling to excuse petitioner’ s untimely filing. The district court adopted the magistrate judge’s r ecommendation and dismissed petitioner’s habeas petition as untimely. R., Doc. 16. The district court granted petitioner a certificate of appealability ( COA), however, based on the magistrate judge’s observation that we have not add ressed the extent to which a petitioner’s delay in seeking state post-convictionrelief should affect the application of equitable tolling. Id. , Doc. 23, at 2. We appointed counsel for petitioner, who filed a brief on his behalf.
II. Analysis We review de novo the district court’s dismissal of a habeas petition as time-barred under AEDPA. Serrano v. Williams , 383 F.3d 1181, 1184 (10th Cir. 2004). We now determine that it is unnecessary to consider the issue of equitable-5-

tolling or petitioner’s specific arguments on appea l, and enlarge the COA to include the issue of statutory tolling, as it appea rs that the magistrate judge miscalculated the number of days within the properl y tolled period and petitioner’s habeas petition was therefore timely f iled. “The AEDPA provides that ‘[t]he time during which aproperly filed application for State post-conviction or other coll ateral review . . . is pending shall not be counted toward any period of limitatio n” under the AEDPA. Id. (quoting § 2244(d)(2)). We have “construed the pen dency of a state post-conviction application as ‘encompass[ing] all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies.’” Id. (quoting Barnett v. Lemaster , 167 F.3d 1321, 1323 (10th Cir. 1999)). We count 219 days during the tolled period from January 5 through August 10, 2004–2004 was a leap y ear, and thus February had 29 days instead of 28 and resulted in an additional day tolled. Adding this time to the initial deadline of January 14, 2004, see Rhine v. Boone , 182 F.3d 1153, 1155 (10th Cir. 1999), we calculate a revised deadline o f August 20, 2004–the day petitioner gave his habeas petition to prison offic ials for mailing. Under the prison mailbox rule, the petition was timely and th e district court should not have dismissed it.-6-

The certificate of appealability is enlarged to inc lude the issue of statutory tolling. The judgment of the district court is REV ERSED, and the case is REMANDED for additional proceedings.

Entered for the Court

Mary Beck Briscoe Circuit Judge