                                                                              FILED
                           NOT FOR PUBLICATION                                APR 24 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


WARREN FRANK STAFFORD,                           No. 10-16356

              Petitioner - Appellant,            D.C. No. 4:09-cv-00363-DCB

  v.
                                                 MEMORANDUM*
CHARLES L. RYAN; ATTORNEY
GENERAL OF THE STATE OF
ARIZONA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                            Submitted April 16, 2012**
                             San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The panel granted Petitioner-Appellant’s unopposed motion to submit
this case for decision without oral argument pursuant to Federal Rule of Appellate
Procedure 34(f).
Before: McKEOWN and N.R. SMITH, Circuit Judges, and NGUYEN, District
Judge.***

      Warren Frank Stafford appeals the district court’s conclusion that his 28

U.S.C. § 2254 habeas corpus petition is time-barred by the one-year statute of

limitations under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA).1 We have jurisdiction pursuant to 28 U.S.C. § 2253. We reverse the

district court’s decision and remand for consideration of the merits of Stafford’s

habeas petition.

      “We review de novo a district court’s dismissal of a petition for writ of

habeas corpus under AEDPA’s statute of limitations.” Summers v. Schriro, 481

F.3d 710, 712 (9th Cir. 2007). “We [also] review de novo questions of statutory

interpretation.” Id. (internal quotation marks omitted).

      The AEDPA one-year limitations period is tolled while “a properly filed

application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending . . . .” 28 U.S.C. § 2244(d)(2). “[A]n

application is ‘properly filed’ when its delivery and acceptance are in compliance



          ***
             The Honorable Jacqueline H. Nguyen, District Judge for the U.S.
District Court for the Central District of California, sitting by designation.
      1
       Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                          2
with the applicable laws and rules governing filings,” including “the time limits

upon its delivery . . . .” Artuz v. Bennett, 531 U.S. 4, 8 (2000). Moreover, even if a

petitioner files an application after the generally applicable state time limit, the

application is properly filed if it fits within any exception to that limit. Pace v.

DiGuglielmo, 544 U.S. 408, 413 (2005); see also Hemmerle v. Schriro, 495 F.3d

1069, 1074 (9th Cir. 2007) (“[W]here notice is filed in conformity with the

pertinent Arizona statutory provisions and contains a specific prayer for relief . . . ,

‘it is sufficient to toll the AEDPA statute of limitations.’” (quoting Isley v. Ariz.

Dep’t of Corr., 383 F.3d 1054, 1056 (9th Cir. 2004))).

      Here, statutory tolling is appropriate, because Stafford properly filed his

second notice of post-conviction relief under Arizona rules. Ariz. R. Crim. P.

32.4(a) (“A proceeding is commenced by timely filing a notice of post-conviction

relief with the court in which the conviction occurred.”); Isley, 383 F.3d at 1055-56

(“Arizona post-conviction rules demonstrate that the proceedings begin with the

filing of the Notice.”). Stafford was allowed to file his second notice after the

generally applicable deadline in Rule 32.4(a),2 because (1) he sought relief based

on newly discovered evidence under Rule 32.1(e), Ariz. R. Crim. P. 32.4(a) (“Any



      2
       Unless otherwise indicated, the references to rules herein relate to the
Arizona Rules of Criminal Procedure.

                                           3
notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g),

or (h).”); and (2) his second notice of post-conviction relief “set forth the substance

of the specific exception and the reasons for not raising the claim in the previous

petition or in a timely manner,” Ariz. R. Crim. P. 32.2(b).

      The Arizona Superior Court’s actions support our decision. It necessarily

found Stafford’s notice timely based on Rule 32.4(a) and Rule 32.2(b), because it

allowed Stafford an extension to file a petition pro per and did not summarily

dismiss his notice. See Ariz. R. Crim. P. 32.2(b) (“If the specific exception and

meritorious reasons do not appear substantiating the claim and indicating why the

claim was not stated in the previous petition or in a timely manner, the notice shall

be summarily dismissed.”); Walton v. Arizona, 497 U.S. 639, 653 (1990) (“Trial

judges are presumed to know the law and to apply it in making their decisions.”),

overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 609 (2002).

      Lastly, Stafford did not have to file a petition to commence a post-conviction

relief proceeding, because Arizona requires a notice (not a petition) to be filed to

commence post-conviction relief proceedings. See Ariz. R. Crim. P. 32.1; id. at

32.4; Hemmerle, 495 F.3d at 1074.

      REVERSED and REMANDED.




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