[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2424
ANTHONY MAZZA,
Petitioner, Appellant,
v.
TIMOTHY HALL,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Anthony Mazza on brief pro se.
Thomas F. Reilly, Attorney General, and Linda A. Wagner,
Assistant Attorney General, on brief for appellee.
March 4, 2002
Per Curiam. The district court held that Anthony
Mazza's habeas petition was time-barred because the one year period
of limitations, see 28 U.S.C. § 2244(d), had expired prior to its
filing. The court's conclusion was based on its view that the
limitations period was not tolled during that fourteen month period
between the state superior court's denial of Mazza's new trial
motion in December 1996 and Mazza's application for leave to appeal
filed in February 1998.
Two pertinent decisions have issued since this district
court determination. In a prospective ruling, the Massachusetts
Supreme Judicial Court held that a capital defendant must file his
application for leave to appeal within 30 days of the superior
court's judgment. Mains v. Commonwealth, 433 Mass. 30, 37 n.10
(2000). And, in Currie v. Matesanz, ___ F.3d ___, No. 01-1108,
2002 WL 226925 (1st Cir. Feb. 19, 2002), we held that, in the case
of a pre-Mains capital defendant in which there was no time limit
on the filing of an application for leave to appeal, a properly
filed application for state post-conviction review is "pending" for
purposes of § 2244(d)(2) from the time it is filed in the state
superior court until it is disposed of by an SJC single justice.
See Currie v. Matesanz, slip op. at 13.
This appeal is controlled by our decision in Currie. For
Mazza, this means that his motion for a new trial was pending for
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purposes of § 2244(d)(2) from the time that he filed it in the
superior court on May 1, 1995 until the SJC single justice denied
it on August 4, 1998. Since the time during which a properly filed
application for State post-conviction review is not counted towards
the one year period of limitations, Mazza's one year period did not
begin to run until August 5, 1998. His filing of his federal
habeas period petition on July 27, 1999 was within the one year
period and thus was timely.1 We vacate the district court judgment
of dismissal of September 28, 2000 and remand to the district
court.
We note that the United States Supreme Court has granted
certiorari in a case that may have some bearing on the issue
presented here. See Saffold v. Newland, 250 F.3d 1262 (9th Cir.
2000), cert. granted sub nom Carey v. Saffold, 122 S. Ct. 393
(2001). Our remand, of course, is without prejudice to either
party raising and/or the district court considering the relevance,
if any, of a forthcoming Supreme Court Saffold decision.
Appellant's motions for oral argument and appointment of
counsel are denied.
Vacated and remanded.
1 Mazza certified that he mailed his habeas petition on July
27, 1999. It was actually filed in the district court on August
2, 1999. Even were we to take the August 2nd date as the filing
date, the habeas petition was timely.
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