                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-1041
                                    ___________

Raymond Johnson,                         *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Michael Kemna,                           *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: June 13, 2006
                                 Filed: June 29, 2006
                                  ___________

Before SMITH, HEANEY, and GRUENDER, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

       Raymond Johnson appeals the district court's dismissal of his 28 U.S.C. § 2254
petition for a writ of habeas corpus. The district court dismissed Johnson's petition as
untimely filed, finding that it was filed over one month past the deadline imposed by
the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. §
2244(d)(1).

      AEDPA requires a state prisoner seeking federal habeas corpus relief to file his
federal petition within one year after his state conviction becomes final. 28 U.S.C. §
2244(d)(1). However, this limitations period does not include the time during which
a properly filed application for state post-conviction review is "pending" in state
courts. 28 U.S.C. § 2244(d)(2). The recent decision of this court in Payne v. Kemna,
441 F.3d 570 (8th Cir. 2006), which both parties agree is controlling in this matter,
instructs that an application for state post-conviction review, under Missouri law, is
pending until the mandate is issued. 441 F.3d at 572. When that date is taken into
consideration, there is no dispute that Johnson's petition for a writ of habeas corpus
was timely filed before the district court.1 Accordingly, the district court's judgment
dismissing Johnson's habeas petition as untimely is reversed, and this case is
remanded for further proceedings. See 8th Cir. R. 47(b).
                        ______________________________




      1
        Considering the 19 days that elapsed between when Johnson's state conviction
became final, June 20, 1998, and the date he initiated post-conviction relief
proceedings in state court, July 9, 1998, only 358 days passed between the issuance
of the mandate on June 2, 2003, and his filing of a petition for a writ of habeas corpus
in federal district court on May 5, 2004, thus making his petition timely filed.

                                          -2-
