                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-4161
                                    ___________

Edwin Lee Jackson,                       *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Dave Dormire, Superintendent;            *
Jeremiah (Jay) Nixon, Attorney           *
General of the State of Missouri,        *
                                         *
             Appellees.                  *
                                    ___________

                          Submitted: May 7, 1999
                              Filed: June 1, 1999
                                  ___________

Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD, and MURPHY, Circuit
      Judges.
                             ___________
PER CURIAM.

       Edwin Lee Jackson appeals from the district court’s dismissal of his 28 U.S.C.
§ 2254 petition without prejudice for failure to exhaust state remedies, and from the
denial of his motion to reconsider. We remand with instructions to allow Jackson to
amend his complaint to delete all claims for which he had not instituted state post-
conviction proceedings by April 24, 1997.
       A Missouri jury convicted Jackson of first degree murder. See Missouri v.
Jackson, 789 S.W.2d 801, 801 (Mo. Ct. App. 1990). Jackson appealed from the
conviction and from the denial of his post-conviction motion. The Missouri Court of
Appeals consolidated the appeals, and affirmed on April 3, 1990. Jackson filed this
federal habeas action on April 23, 1997, raising seventeen claims, which included two
counts of trial error, one count of ineffective assistance of trial counsel, three counts of
ineffective assistance of post-conviction appellate counsel, and eleven counts of
ineffective assistance of direct-appeal counsel. On May 2, 1997, Jackson filed a
motion to recall the mandate in the Missouri Court of Appeals, raising all of his
ineffective-assistance claims. The state court denied this motion on May 27, 1997.
Based on the State’s argument that some of his claims were not yet exhausted, Jackson
filed a second motion to recall the direct-appeal mandate.

       In October 1997, the district court dismissed the case without prejudice for
failure to exhaust state remedies. Jackson filed a motion for reconsideration, indicating
that, unbeknownst to him, the Missouri Court of Appeals had in fact denied his second
motion to recall the mandate by the time he filed his response in this proceeding, and
thus his state remedies had been exhausted. The district court denied the motion, and
Jackson timely appealed both the dismissal and the denial of his motion for
reconsideration. This court granted a certificate of appealability.

       The State now concedes that Jackson’s eleven claims of ineffective assistance
of direct-appeal counsel were raised in his first motion to recall the mandate, and were
denied by the state court on May 27, 1997, but argues that they were not timely
exhausted because the motion to recall the mandate was filed outside the one-year
limitations period for filing federal habeas actions. We agree with the State that,
because Jackson filed his first motion to recall the mandate only after the expiration of
the one-year limitations period, the claims he raised in that motion were not exhausted
in time to raise them in a federal habeas action. See 28 U.S.C. § 2244(d); Moore v.
United States, No. 98-1153, slip op. at 7 (8th Cir. Apr. 16, 1999) (for convictions

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before April 23, 1996, last day to file 28 U.S.C. § 2255 motion is April 24, 1997).
Although normally the limitations period is tolled during the pendency of state
postconviction proceedings, see 28 U.S.C. § 2244(d)(2), the limitations period was not
tolled during the pendency of Jackson’s motion to recall the mandate because he did
not file it until May 2, some days after the limitations period had expired.

       To allow Jackson to return to state court and exhaust after the one-year statutory
limitations period has expired would defeat the purpose of the Antiterrorism and
Effective Death Penalty Act of 1996 to expedite federal habeas review, see Parker v.
Johnson, 988 F. Supp. 1474, 1477 (N.D. Ga. 1998), and would lead to inequities
depending upon the length of time a district court takes to rule on a motion to dismiss.
Jackson instead should have been given the option to amend his petition to proceed
with the claims he had exhausted by April 24, 1997. See Victor v. Hopkins, 90 F.3d
276, 282 (8th Cir. 1996) (when petition includes both exhausted and unexhausted
claims, petition must be dismissed or petitioner must elect to proceed on only exhausted
claims) (citing Rose v. Lundy, 455 U.S. 509 (1982)); Parker, 988 F. Supp. at 1477
(allowing petitioner to amend complaint to delete unexhausted claims).

       Accordingly, we remand with instructions to allow Jackson to amend his petition
to delete those claims for which he had not instituted state post-conviction proceedings
by April 24, 1997.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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