                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUL 26 2002
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 KENNETH BROWN,

           Petitioner - Appellant,
                                                          No. 02-7035
 v.                                                    (No. 01-CV-321-S)
                                                        (E.D. Oklahoma)
 DAYTON POPPEL,

           Respondent - Appellee.


                              ORDER AND JUDGMENT          *




Before EBEL , LUCERO , and O’BRIEN , Circuit Judges.


          Pro se petitioner Kenneth Brown, an Oklahoma state prisoner, seeks to

appeal the district court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of

habeas corpus as time-barred.

          We have reviewed the record on appeal and conclude that the district court

did not fully explore whether Brown was entitled to equitable tolling of the one-

year period of limitations imposed by the Antiterrorism and Effective Death



      The case is unanimously ordered submitted without oral argument pursuant
      *

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Penalty Act of 1996, 28 U.S.C. § 2244(d)(1). On remand, the district court

should consider whether the refiling of Brown’s habeas petition prior to the

Supreme Court’s decision in      Duncan v. Walker , 533 U.S. 167 (2001), merits the

application of equitable tolling to his case.         See Hall v. Scott , No. 01-7156, 2002

U.S. App. LEXIS 11389, at *9–*10 (10th Cir. June 12, 2002). In addition, the

district court should apply the “prisoner’s mailbox rule” in determining the dates

Brown’s habeas petitions were filed with the court.           See id. at *2 n.1.

       Having concluded that Brown has made a substantial showing of the denial

of a constitutional right, his application for a certificate of appealability pursuant

to 28 U.S.C. § 2253(c) is    GRANTED , the district court’s dismissal of his petition

for a writ of habeas corpus as time-barred is         REVERSED , and this matter is

REMANDED for reconsideration of whether equitable tolling is warranted.

Brown’s motion to proceed in forma pauperis is            GRANTED .



                                            ENTERED FOR THE COURT


                                            Carlos F. Lucero
                                            Circuit Judge




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