                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 97-3598
                                  ___________

Mufid Al-Din, also known as            *
Charles A. Parker,                     *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri
Michael Bowersox, et al.,              *
                                       *
            Appellants.                *
                                  ___________

                             Submitted: September 23, 1998

                                 Filed: April 13, 1999
                                  ___________

Before BOWMAN, Chief Judge, and McMILLIAN, RICHARD S. ARNOLD, FAGG,
WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD,
MURPHY and KELLY,1 Circuit Judges, En Banc.
                              ___________


McMILLIAN, Circuit Judge.




      1
       The Honorable John D. Kelly passed away on October 21, 1998. This opinion
is consistent with his vote at the en banc conference following oral argument on
September 23, 1998.
       Respondent Michael Bowersox appeals from an order entered in the United
States District Court2 for the Western District of Missouri denying his motion to
dismiss Mufid Al-Din’s petition for writ of habeas corpus as untimely filed under 28
U.S.C. § 2244(d)(1). Parker v. Bowersox, No. 97-657-CV-W-6-P (W. D. Mo.
Sept. 2, 1997) (order denying respondent’s motion to dismiss and granting
respondent’s motion for an interlocutory appeal). Jurisdiction in the district court was
based upon 28 U.S.C. §§ 1331, 2254. Jurisdiction in this court is based upon 28
U.S.C. § 1292(b). In an earlier proceeding, a divided panel of this court affirmed.
We subsequently vacated the panel opinion and granted respondent’s suggestion for
rehearing en banc. Now, in accordance with our en banc opinion filed on this date
in the consolidated cases under the title Nichols v. Bowersox, Nos. 97-3639 & 97-
3640 (8th Cir. Apr. 13, 1999) (en banc), we affirm the order of the district court
denying respondent’s motion to dismiss. See 8th Cir. R. 47B.

BEAM, Circuit Judge, dissenting.

      I respectfully dissent for the reasons I advance in Nichols v. Bowersox, No. 97-
3639 and Crane v. Dormire, No. 97-3640. Accordingly, I would either dismiss this
case or remand it to the district court with directions to grant appellants' motion to
dismiss.



      A true copy.

             Attest:

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


      2
       The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.

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