                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           April 7, 2006
                            FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court


    WILLIAM RAY PRATT,

                Petitioner-Appellant,

    v.                                                   No. 05-6008
                                                   (D.C. No. 04-CV-1070-F)
    MIKE MULLIN, Warden,                                 (W.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.



         Petitioner-appellant William Ray Pratt, a prisoner of the State of Oklahoma,

appeals from the dismissal of his petition for a writ of habeas corpus filed under

28 U.S.C. § 2254 as untimely under the Antiterrorism and Effective Death Penalty




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,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.
Act of 1996 (AEDPA). See 28 U.S.C. § 2244(d)(1). We have jurisdiction under

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 abuse 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 application for post-conviction relief

in the state district court, which ordered the application stricken on November 14,

2003, because it exceeded the page limit established by a local court rule.

R., Doc. 7, Ex. 3. On November 25, 2003, petitioner filed a motion in the state

district court for permission to exceed the established page limit. While that

motion was pending, petitioner mailed a second petition for post-conviction relief

to the state district court, which was file-stamped January 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 that denial on August 10,



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2004. Petitioner received notice of the OCCA decision 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 the petition, petitioner sought relief

based on alleged violations of due process and ineffective assistance of trial and

appellate counsel. The petition was filed in the district court on August 30, 2004,

and assigned to a magistrate judge for consideration. See 28 U.S.C. § 636. The

magistrate judge did not reach the merits of the petition, 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 magistrate 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 period for seeking certiorari

expired. Id. at 3. Therefore, absent either statutory or equitable tolling,

petitioner had until January 14, 2004, to file his federal habeas petition. Id. at 4.

The magistrate judge determined that the time during which petitioner’s second

application for state post-conviction relief was pending should be tolled under

28 U.S.C. § 2244(d)(2). That period ran from the date of the filing of the

application on January 5, 2004, through the date of the OCCA’s order affirming


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the denial of relief, August 10, 2004. See id. at 5. The magistrate judge did not

toll the time for petitioner’s first application, however, because it was not

properly filed within the meaning of § 2244(d)(2). Based on the statutory period

tolled, the magistrate judge determined that petitioner had until August 19, 2004,

to file his federal petition. In light of the federal prison mailbox rule, see

Houston v. Lack, 487 U.S. 266, 270 (1988), the magistrate judge found 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 recommendation 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 addressed the extent to which a

petitioner’s delay in seeking state post-conviction relief 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

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tolling or petitioner’s specific arguments on appeal, and enlarge the COA to

include the issue of statutory tolling, as it appears that the magistrate judge

miscalculated the number of days within the properly tolled period and

petitioner’s habeas petition was therefore timely filed.

      “The AEDPA provides that ‘[t]he time during which a properly filed

application for State post-conviction or other collateral review . . . is pending

shall not be counted toward any period of limitation” under the AEDPA. Id.

(quoting § 2244(d)(2)). We have “construed the pendency 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 year, 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 of August 20, 2004–the day

petitioner gave his habeas petition to prison officials for mailing. Under the

prison mailbox rule, the petition was timely and the district court should not have

dismissed it.




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      The certificate of appealability is enlarged to include the issue of statutory

tolling. The judgment of the district court is REVERSED, and the case is

REMANDED for additional proceedings.


                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




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