                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         October 26, 2005
                                  TENTH CIRCUIT
                                                                           Clerk of Court

  DAVID TURLEY,

         Petitioner-Appellant,
  v.                                                Nos. 04-1297 & 04-1300
  AL ESTEP, Warden, Limon                      (D.C. Nos. 04-Z-789 & 04-Z-790)
  Correctional Facility, and THE                           (D.Colo.)
  ATTORNEY GENERAL OF THE
  STATE OF COLORADO,

         Respondents-Appellees.




                                       ORDER


 Before BRISCOE, LUCERO,          and MURPHY , Circuit Judges.


       Petitioner David Turley has filed a petition for panel rehearing. The

respondents have provided a response. Our Order and Judgment filed in these

cases on August 18, 2005, affirmed the district court’s judgment dismissing

Turley’s petition for a writ of habeas corpus as untimely filed. In support of that

ruling, we concluded Turley was not entitled to the equitable tolling of the one-year

statute of limitations because he had not availed himself of the “stay-and-abeyance”

procedure.
      In consideration of the additional pleadings provided to the court by the

parties with their rehearing briefs, we conclude Turley has sufficiently complied

with the “stay-and-abeyance” procedure to carry his burden of demonstrating that

equitable tolling should apply. Accordingly, we GRANT Turley’s petition for

rehearing, VACATE the Order and Judgment filed in these cases on August 18,

2005, REVERSE the district court’s order dismissing Turley’s petition for a writ of

habeas corpus, and REMAND these cases for further proceedings. All remaining

motions, including Turley’s request for appointment of counsel, are DENIED.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge




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