                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    _____________

                                   No. 99-3812WM
                                   _____________

Donald L. Marx,                             *
                                            *
             Appellant,                     *
                                            *   On Appeal from the United
      v.                                    *   States District Court
                                            *   for the Western District
                                            *   of Missouri.
Anthony Gammon,                             *
                                            *
             Appellee.                      *

                                     ___________

                               Submitted: November 17, 2000
                                   Filed: December 6, 2000
                                   ___________

Before McMILLIAN, RICHARD S. ARNOLD, and BEAM, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.

        The defendant in this case appeals from the dismissal of his habeas corpus
petition under 28 U.S.C. § 2254. He filed that petition on October 19, 1998, one year
and 40 days after his state conviction had become final, on September 9, 1997. The
District Court held that the petition was filed outside the one-year limitations period in
28 U.S.C. § 2244(d), and that the period was not tolled by the filing of successive
motions for state post-conviction relief. We hold that at least one of those motions did
toll the period for more than 40 days. Accordingly, we reverse.
       28 U.S.C. § 2244(d) provides that petitions for post-conviction relief under 28
U.S.C. § 2254 must be filed within one year after the defendant's conviction becomes
final. However, the limitations period does not run while a "properly filed" state post-
conviction petition is pending. 28 U.S.C. § 2244(d)(2). The appellate briefs focused
chiefly on Mr. Marx's second and third motions to recall the mandate, which were
pending for 141 and 95 days respectively during the year after the conclusion of his
direct appeal. The second motion was filed on November 10, 1997; the third, on
December 26, 1997; both were summarily denied on March 31, 1998. Mr. Marx needs
only 40 days. Thus, if either of these two motions was "properly filed" within the
meaning of the statute, then the period was extended far enough to make his habeas
petition timely.

       After the District Court in this case had dismissed Mr. Marx's petition, the
Supreme Court decided Artuz v. Bennett, 121 S. Ct. 361 (2000). That case holds that,
for purposes of § 2244(d)(2), "an application is 'properly filed' when its delivery and
acceptance are in compliance with the applicable laws and rules governing filings." Id.
at 364. Mr. Marx's third motion to recall the mandate was "properly filed" in that
sense. Accordingly, we reverse the dismissal of Mr. Marx's petition and remand the
case to the District Court for further proceedings.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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