F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 26 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
KENNETH BROWN,
Petitioner - Appellant,
No. 02-7035
v. (No. 01-CV-321-S)
(E.D. Oklahoma)
DAYTON POPPEL,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before EBEL , LUCERO , and O’BRIEN , Circuit Judges.
Pro se petitioner Kenneth Brown, an Oklahoma state prisoner, seeks to
appeal the district court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of
habeas corpus as time-barred.
We have reviewed the record on appeal and conclude that the district court
did not fully explore whether Brown was entitled to equitable tolling of the one-
year period of limitations imposed by the Antiterrorism and Effective Death
The case is unanimously ordered submitted without oral argument pursuant
*
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The Court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Penalty Act of 1996, 28 U.S.C. § 2244(d)(1). On remand, the district court
should consider whether the refiling of Brown’s habeas petition prior to the
Supreme Court’s decision in Duncan v. Walker , 533 U.S. 167 (2001), merits the
application of equitable tolling to his case. See Hall v. Scott , No. 01-7156, 2002
U.S. App. LEXIS 11389, at *9–*10 (10th Cir. June 12, 2002). In addition, the
district court should apply the “prisoner’s mailbox rule” in determining the dates
Brown’s habeas petitions were filed with the court. See id. at *2 n.1.
Having concluded that Brown has made a substantial showing of the denial
of a constitutional right, his application for a certificate of appealability pursuant
to 28 U.S.C. § 2253(c) is GRANTED , the district court’s dismissal of his petition
for a writ of habeas corpus as time-barred is REVERSED , and this matter is
REMANDED for reconsideration of whether equitable tolling is warranted.
Brown’s motion to proceed in forma pauperis is GRANTED .
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-2-