                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                     __________

                                     No. 07-1051
                                     __________

David Stewart,                           *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Donald Roper,                            *
                                         * [UNPUBLISHED]
              Appellee.                  *
                                    ___________

                              Submitted: March 2, 2007
                                 Filed: June 10, 2008
                                  ___________

Before SMITH, MAGILL1 and BENTON, Circuit Judges.
                            ___________

PER CURIAM.

       The district court held Stewart’s petition for habeas corpus relief was untimely.
On appeal, we reversed. Stewart v. Roper, No. 07-1051(8th Cir. Feb. 5, 2007)
(Judgment). We found the petition timely based on the rationale of our en banc
decision in Nichols v. Bowersox, 172 F.3d 1068, 1072 (8th Cir. 1999), reasoning that
the state court judgment against Stewart was final 90 days after the Missouri Court of
Appeals entered its judgment, on the assumption that Stewart could have filed a writ

      1
        The Honorable Frank J. Magill retired effective August 31, 2007. This opinion
is being filed by the remaining judges of the panel pursuant to 28 U.S.C. § 46(d) and
8th Cir. R. 47E.
of certiorari with the United States Supreme Court. On March 2, 2007, we granted the
petition for panel rehearing and vacated our prior judgment.

       After the judgment in this case, the en banc court in Riddle v. Kemna, 523 F.3d
850 (8th Cir. 2008), abrogated the 90-day rule of Nichols. The court in Riddle,
however, characterized the abrogation as an “extraordinary circumstance, external to
Riddle and not attributable to him” that might justify the application of the doctrine
of equitable tolling. Id. at 857. We remanded in Riddle with instructions for the
district court to consider the doctrine of equitable tolling. The present case requires
the same action. We remand for further proceedings consistent with this opinion and
Riddle.

                       ______________________________




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