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UNITED
STATES COURT OF APPEALS
TENTH CIRCUIT
| DAVID TURLEY,
Petitioner-Appellant, |
|
| v. |
Nos. 04-1297 & 04-1300
|
| AL ESTEP, Warden, Limon
Correctional Facility, and THE
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents-Appellees.
|
(D.C. Nos. 04-Z-789 & 04-Z-790)
(D.Colo.)
|
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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