                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                        July 5, 2007
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court

 TOD D D EAL,

       Petitioner-A ppellant,
                                                         No. 07-3007
 v.
                                                   (D.C. No. 5:06-cv-3053)
                                                          (D . Kan.)
 DA VID M CK UN E; ATTO RN EY
 GEN ERAL O F KANSAS,

       Respondents-Appellees.



                                      OR DER


Before BR ISC OE, EBEL and M CCO NNELL, Circuit Judges.


      Petitioner Todd Deal, a pro se petitioner w ho is incarcerated at Ellsworth

Correctional Facility in Kansas on a 1999 Kansas conviction for first-degree

murder, recently sought to appeal a decision by the U.S. District Court for the

District of Kansas denying his petition for federal habeas relief under 28 U.S.C. §

2254. However, after he filed his request for a certificate of appealability

(“COA”) w ith this Court, a K ansas court allowed M r. Deal to reopen one of his

state court appeals. This development requires us to REVERSE the district

court’s decision denying M r. Deal’s habeas petition, and to REM AND the matter

to the court below for consideration of w hether to dismiss or stay M r. Deal’s

petition while M r. Deal exhausts his state remedies.
      28 U.S.C. § 2244(d) sets a one-year deadline for prisoners in state custody

to file habeas petitions pursuant to § 2254. However, this deadline is tolled for

“[t]he time during which a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or claim is

pending.” 28 U.S.C. § 2244(d)(2). The district court observed that M r. Deal’s

first-degree murder conviction became final on October 9, 2001, at which point

the one-year statute of limitations began to run. The limitations period was tolled

when M r. Deal filed a petition for state post-conviction relief under Kan. Stat.

Ann. § 60-1507 on August 29, 2002, but the clock restarted when the Kansas

Supreme Court denied the petition on September 20, 2005. The federal district

court found that the deadline for M r. Deal to have filed his 28 U.S.C. § 2254

petition was October 31, 2005. M r. Deal, however, did not file the petition until

February 14, 2006. The district court concluded that M r. Deal’s federal habeas

petition was untimely.

      However, sometime in 2002 or 2003, M r. Deal also filed a motion under

Kan. Stat. Ann. § 22-3504 to correct an “illegal sentence.” Kansas courts denied

the § 22-3504 motion. M r. Deal filed a timely notice of appeal from the § 22-

3504 denial in December 2003, but he did not docket the appeal within the 21-day

period required by Kansas rules. See Kan. Sup. Ct. R. 2.04. According to M r.

Deal, the counsel appointed to handle his § 22-3504 appeal filed the notice of

appeal and then withdrew from the case. M r. Deal states that it took three to four

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months for a Kansas court to appoint new counsel and for that person to accept

the appointment. By that time, the 21-day deadline for docketing his appeal of

the denial of the § 22-3504 motion had passed. M r. Deal further alleges that the

newly-appointed counsel assured him the § 22-3504 motion was being appealed,

when in reality counsel failed to pursue this appeal. M r. Deal contends he did not

learn that the illegal sentence motion was never appealed until after the federal

habeas deadline had passed.

      The district court concluded that although equitable tolling is available

when a petitioner’s failure to timely file a habeas petition is “caused by

extraordinary circumstances beyond his control,” M arsh v. Soares, 223 F.3d 1217,

1220 (10th Cir. 2000), M r. Deal did not demonstrate “diligence” in pursuing his

petition alleging an illegal sentence under K an. Stat. Ann. § 22-3504. In

considering M r. Deal’s request for COA, we determined that the exercise of

diligence should not necessarily encompass a requirement of second-guessing the

assurances of appointed counsel. On M ay 31, 2007, we granted COA on the issue

of whether the time to file his petition under 28 U.S.C. § 2254 should be

equitably tolled.

      Since then, we have learned from Respondents that on April 30, 2007, M r.

Deal filed a motion with the Kansas Supreme Court to allow him to docket out of

time his appeal from the denial of his § 22-3504 illegal sentence motion. M r.

Deal argued that his appointed counsel misled him into believing that his § 22-

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3504 appeal was pending before state courts. The Kansas Supreme Court granted

his motion to docket out of time on M ay 30, 2007. Respondents inform us that

M r. Deal’s § 22-3504 appeal now is pending in state court, and that the appeal

relates back to the original filing date of the § 22-3504 motion.

      Respondents, therefore, concede that M r. Deal “has a pending post-

conviction motion in state courts sufficient to toll the federal statute of limitations

under 28 U.S.C. § 2244(d)(2),” and that “the statute of limitations period in which

[M r. Deal] may file an application for federal habeas corpus relief has not

expired.” See also Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999)

(holding that “pending” under § 2244(d)(2) must “encompass all of the time

during which a state prisoner is attempting, through proper use of state court

procedures, to exhaust state court remedies with regard to a particular

post-conviction application.”).

      Accordingly, although the district court understandably found that there

were no pending actions at the time it denied M r. Deal’s habeas petition, we now

must REVERSE that decision and allow Kansas state courts to decide the merits

of M r. Deal’s § 22-3504 appeal. See Rhines v. W eber, 544 U.S. 269, 273 (2005)

(“interests of comity and federalism dictate that state courts must have the first

opportunity to decide a petitioner’s claims” (citation omitted)). W e REM AND

M r. Deal’s federal habeas petition to the district court for consideration of

whether a stay or dismissal without prejudice w ould be appropriate, since M r.

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Deal’s petition may contain both exhausted and unexhausted claims. See Rhines,

544 U.S. at 277-78. W e believe the district court both has the discretion to make

this determination, id., and is in the best position to do so, see, e.g., Akins v.

Kenney, 410 F.3d 451, 456 (8th Cir. 2005); Jackson v. Roe, 425 F.3d 654, 662

(9th Cir. 2005).




                                         ENTERED FOR THE COURT



                                         David M . Ebel
                                         Circuit Judge




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