                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          OCT 4 1999
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 HARLIN DONNELL THIERRY,

           Petitioner - Appellant,
 vs.                                                    No. 99-7058
                                                  (D.C. No. 98-CV-369-S)
 GARY L. GIBSON; ATTORNEY                               (E.D. Okla.)
 GENERAL OF THE STATE OF
 OKLAHOMA,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Mr. Thierry, an inmate appearing pro se, seeks to appeal from the district

court’s dismissal of his habeas petition, 28 U.S.C. § 2254. By minute order, Mr.

Thierry’s petition was dismissed because he failed to respond to the state’s

motion to dismiss as required by Local Rule 7.1(B) of the Eastern District of


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
Oklahoma. In its motion to dismiss, the state argued that Mr. Thierry’s petition

was barred by the one-year limitation period contained in 28 U.S.C. § 2244(d)(1).

The state argued that (a) Tenth Circuit authority allowing for an April 23, 1997

deadline for certain petitioners and tolling under § 2244(d)(2) was wrongly

decided, and (b) even under that authority, Mr. Thierry’s petition was past the

tolled deadline.

      On appeal, Mr. Thierry argues that he was not required to respond because

replies are optional under the local rule and the information in response is

contained in his petition. The argument ignores the difference between a

response by the non-movant (mandatory) and a reply by the movant (optional). In

the alternative, he argues that he should be allowed to respond because his

petition is timely. Given the unusual circumstances in this case, we grant Mr.

Thierry’s motion for leave to proceed on appeal without prepayment of fees or

costs, grant his application for a certificate of appealability, reverse and remand

for further proceedings.

       The district court’s dismissal for failure to respond is reviewed under an

abuse of discretion standard. See Murray v. Archambo, 132 F.3d 609, 610 (10th

Cir. 1998). The district court’s dismissal, although without prejudice, is

tantamount to a dismissal with prejudice because the one-year limitation period

would surely bar Mr. Thierry upon refiling. Although the local rule requiring a


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response provides that “the failure to comply will constitute a confession of the

matters raised by the pleadings,” E.D. Okla. L. R. 7.1(B) Civ., this language has

been construed as requiring discretion in its application. See Murray, 132 F.3d at

611 n.2;cf., Miller v. Department of Treasury, 934 F.2d 1161, 1162 (10th Cir.

1991) (construing the similar language of N.D. Okla. L. R. 15(A) Civ. in the same

manner).

         Our cases have suggested that measures short of outright dismissal should

be considered even when a non-movant fails to respond. See Meade v. Grubbs,

841 F.2d 1512, 1520-22 (10th Cir. 1988). In making its determination, the

district court should consider: “(1) the degree of actual prejudice to the

[petitioner]; (2) the amount of interference with the judicial process; and (3) the

culpability of the litigant.” Miller, 934 F.2d at 1162. “[O]nly when these

aggravating factors outweighed the judicial system’s strong predisposition to

resolve cases on their merits is outright dismissal with prejudice an appropriate

sanction.” Hancock v. City of Oklahoma City, 857 F.2d 1394, 1396 (10th Cir.

1998).

         Application of these factors could not sustain dismissal in this case. While

we recognize the importance of prompt disposition of motions by the district

court, this was a single incident of non-compliance based upon an erroneous

reading of the local rule by Mr. Thierry. To be sure, Mr. Thierry as a pro se


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litigant is bound by the rules of procedure, but his pro se status may bear on his

culpability. See Ehrenhaus v. Reynolds, 965 F.2d 916, 920 n.3 (10th Cir. 1992).

Moreover, the legal grounds urged in the state’s motion to dismiss, which we

consider de novo, are completely without merit.

      First, the district court was bound to apply circuit precedent, and could not

disregard it as urged by the state. See United States v. Spedalieri, 910 F.2d 707,

709 (10th Cir. 1990). Second, application of that precedent to the uncontroverted

facts renders Mr. Thierry’s petition timely. Although the state argued that 379

untolled days passed before Mr. Thierry’s federal petition was filed, it failed to

exclude 59 days that must be tolled. Specifically, the state included 27 days

between the state district court’s denial of Mr. Thierry’s petition for post-

conviction relief and his appeal of that order. It also included 32 days between

the filing of the state district court’s amended order in the same case, and Mr.

Thierry’s appeal of that order.

      “The time during which a properly filed application for State post-

conviction . . . review . . . is pending shall not be counted toward” the one-year

limitations period. Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998).

“[T]he term [pending] must be construed . . . to 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


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application.” Barnett v. LeMaster, 167 F.3d 1321, 1323 (10th Cir. 1999). This

means that the time between the state district court judgment and the application

for an appeal of that judgment should not have been counted against Mr. Thierry.

See, e.g., Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999); Haney v.

Addison, 175 F.3d 1217, 1220-21 (10th Cir. 1999) (applying this rule in making

calculations to determine timeliness).

      REVERSED and REMANDED.

                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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