      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                     For the First Circuit


No. 00-2424

                         ANTHONY MAZZA,

                     Petitioner, Appellant,

                               v.

                         TIMOTHY HALL,

                     Respondent, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Reginald C. Lindsay, U.S. District Judge]


                             Before

                       Boudin, Chief Judge,
              Torruella and Lipez, Circuit Judges.




     Anthony Mazza on brief pro se.
     Thomas F. Reilly, Attorney General, and Linda A. Wagner,
Assistant Attorney General, on brief for appellee.




                         March 4, 2002
           Per Curiam.   The district court held that Anthony

Mazza's habeas petition was time-barred because the one year period

of limitations, see 28 U.S.C. § 2244(d), had expired prior to its

filing. The court's conclusion was based on its view that the

limitations period was not tolled during that fourteen month period

between the state superior court's denial of Mazza's new trial

motion in December 1996 and Mazza's application for leave to appeal

filed in February 1998.

           Two pertinent decisions have issued since this district

court determination. In a prospective ruling, the Massachusetts

Supreme Judicial Court held that a capital defendant must file his

application for leave to appeal within 30 days of the superior

court's judgment. Mains v. Commonwealth, 433 Mass. 30, 37 n.10

(2000). And, in Currie v. Matesanz, ___ F.3d ___, No. 01-1108,

2002 WL 226925 (1st Cir. Feb. 19, 2002), we held that, in the case

of a pre-Mains capital defendant in which there was no time limit

on the filing of an application for leave to appeal, a properly

filed application for state post-conviction review is "pending" for

purposes of § 2244(d)(2) from the time it is filed in the state

superior court until it is disposed of by an SJC single justice.

See Currie v. Matesanz, slip op. at 13.

           This appeal is controlled by our decision in Currie. For

Mazza, this means that his motion for a new trial was pending for


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 purposes of § 2244(d)(2) from the time that he filed it in the

 superior court on May 1, 1995 until the SJC single justice denied

 it on August 4, 1998. Since the time during which a properly filed

 application for State post-conviction review is not counted towards

 the one year period of limitations, Mazza's one year period did not

 begin to run until August 5, 1998.     His filing of his federal

 habeas period petition on July 27, 1999 was within the one year

 period and thus was timely.1 We vacate the district court judgment

 of dismissal of September 28, 2000 and remand to the district

 court.

            We note that the United States Supreme Court has granted

 certiorari in a case that may have some bearing on the issue

 presented here. See Saffold v. Newland, 250 F.3d 1262 (9th Cir.

 2000), cert. granted sub nom Carey v. Saffold, 122 S. Ct. 393

 (2001). Our remand, of course, is without prejudice to either

 party raising and/or the district court considering the relevance,

 if any, of a forthcoming Supreme Court Saffold decision.

            Appellant's motions for oral argument and appointment of

 counsel are denied.

            Vacated and remanded.



    1 Mazza certified that he mailed his habeas petition on July
27, 1999. It was actually filed in the district court on August
2, 1999. Even were we to take the August 2nd date as the filing
date, the habeas petition was timely.

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