                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                      TENTH CIRCUIT                          June 19, 2014

                                                                          Elisabeth A. Shumaker
 BILLY LEE LONGORIA,                                                          Clerk of Court

           Petitioner - Appellant,
                                                             No. 13-1472
 v.
                                                    (D.C. No. 1:13-CV-00283-LTB)
 JAMES FALK; THE ATTORNEY                                     (D. Colo.)
 GENERAL OF THE STATE OF
 COLORADO,

           Respondents - Appellees.




                                 ORDER AND JUDGMENT*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       Billy Lee Longoria, a Colorado state inmate proceeding pro se, appeals the

dismissal by the United States District Court for the District of Colorado of his

application for relief under 28 U.S.C. § 2254. The district court held that his application

was time barred because he did not comply with the one-year statute of limitations under


       * After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App.
P. 32.1 and 10th Cir. R. 32.1.
the Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d).

We granted a certificate of appealability and requested that the State of Colorado file a

response brief. In its response the State concedes that Mr. Longoria’s application was

timely. We agree. Accordingly, we reverse the district court’s order and judgment of

dismissal, and remand for further proceedings.

       AEDPA imposes a one-year statute of limitations on applications for relief under

§ 2254. See id. The limitation period generally runs from “the date on which the

judgment became final by the conclusion of direct review or the expiration of time for

seeking such review.” Id. § 2244(d)(1)(A). But the 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.” Id. § 2244(d)(2). The limitations period

is also tolled “during the period in which the petitioner could have sought an appeal

under state law” of a postconviction application, even if the petitioner chooses not to do

so. Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000).

       Statute-of-limitations calculations under AEDPA follow the rules for computing

time limitations set forth in Fed. R. Civ. P. 6(a). See United States v. Hurst, 322 F.3d

1256, 1261 (10th Cir. 2003). Under those rules the first day counted toward the one-year

period is the day after the event that triggers the limitations period and the last day

counted is the last day to file. See id.; Fed. R. Civ. P. 6(a)(1). Therefore, in the absence

of tolling the applicant’s last day to file a § 2254 application under AEDPA is the

anniversary of when the judgment became final. See Hurst, 322 F.3d at 1261–62.
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Further, Rule 6(a) instructs that if the last day of the tolling period “is a Saturday,

Sunday, or legal holiday, the period continues to run until the end of the next day that is

not a Saturday, Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(1)(C).

        It appears that the district court’s mistake was caused by two misapplications of

these rules: (1) it counted the days of events that ended a period of tolling when it should

have resumed running the limitations period the day after the triggering events

(December 14, 2008, and March 29, 2009); 1 and (2) it did not allow the applicant an

extra day when the last day to file an appeal was a Sunday (December 14, 2008, and

March 29, 2009). Applying those rules gives Mr. Longoria enough extra days to make

his application timely.

       We REVERSE the district court’s order and judgment of dismissal, and

REMAND for further proceedings. We GRANT Mr. Longoria’s motion to proceed in

forma pauperis.

                                            ENTERED FOR THE COURT


                                            Harris L Hartz
                                            Circuit Judge


1
  The March date refers to the expiration of Mr. Longoria’s time to appeal to the
Colorado Supreme Court the denial of his state postconviction motion. We must defer to
Colorado law to determine the time for appeal in its courts. But the Colorado rule for
calculating time periods is identical to the federal rule in the relevant respects: “the day
of the event from which the designated period of time begins to run is not to be
included”; and if the last day of a time period falls on a weekend or a legal holiday, “the
period runs until the end of the next day which is not a Saturday, a Sunday, or a legal
holiday.” Colo. R. Crim. P. 45(a).
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