F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                        PUBLISH
                                                                         FEB 9 1999
                     UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                             Clerk
                                   TENTH CIRCUIT



 WILLIAM J. BARNETT, also known
 as William Barnett,

          Petitioner-Appellant,

               v.                                      No. 98-2139

 TIM LEMASTER, Warden, New
 Mexico State Penitentiary;
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

          Respondents-Appellees.




                     Appeal from United States District Court
                         for the District of New Mexico
                           (D.C. No. CIV-97-763-MV)


Submitted on the briefs: 1

William J. Barnett, appellant pro se.

Tom Udall, Attorney General, and Patricia Gandert, Assistant Attorney General,
Santa Fe, New Mexico, for the appellees.



      1
        After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
Therefore, the case is ordered submitted without oral argument.
Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.


BRISCOE, Circuit Judge


      Petitioner William Barnett, a state prisoner appearing pro se, appeals the

district court’s dismissal of his 28 U.S.C. § 2254 habeas petition on statute of

limitations grounds. We reverse and remand for further proceedings.

      Barnett was convicted in 1991 of two counts of second degree criminal

sexual penetration, kidnaping, aggravated burglary, attempted armed robbery,

possession of a firearm or destructive device by a felon, and misdemeanor

aggravated battery. He was sentenced to a total term of imprisonment of forty-six

and one-half years. His convictions and sentence were affirmed on direct state

appeal on July 2, 1992, and his petition for writ of certiorari was denied by the

state supreme court on August 14, 1992.

      Barnett’s habeas petition in state court was denied on August 22, 1995, and

he did not seek certiorari review. He filed a second habeas petition in state court

on April 17, 1997, reasserting many issues previously raised and at least one new

issue--constitutionality of sentencing. His second habeas petition was denied on

April 22, 1997, and his petition for writ of certiorari was denied by the state

supreme court on May 29, 1997.

      The present habeas petition was filed in federal district court on June 3,

                                         -2-
1997. The district court adopted the order and recommendation of the magistrate

judge and dismissed the petition as untimely. The district court issued a

certificate of appealability.

      Since Barnett’s state convictions became final prior to enactment of the

Antiterrorism and Effective Death Penalty Act of 1996, he had one year from

April 24, 1996, to file an application for federal habeas relief. See 28 U.S.C.

§ 2244(d)(1); Hoggro v. Boone, 

, 1225 (10th Cir. 1998). The

limitations period ran unabated until April 17, 1997, when Barnett filed his

second application for habeas relief in state court. See 28 U.S.C. § 2244(d)(2).

The crux of this appeal is whether the limitations period was tolled until the state

court denied the second habeas application, as the district court found, or whether

it remained tolled until the state supreme court denied certiorari, as Barnett

asserts.

      “The time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent judgment or

claim is pending shall not be counted toward” a state prisoner’s one-year period

of limitation. 

court narrowly defined the term “pending” to mean

only the time during which an application for post-conviction relief remains

unresolved by a state district court. We conclude the term must be construed

more broadly to encompass all of the time during which a state prisoner is


                                         -3-
attempting, through proper use of state court procedures, to exhaust state court

remedies with regard to a particular post-conviction application. Such a

construction comports with the generally-accepted definition of the term.        See ,

e.g. , Beverly Community Hosp. Assoc. v. Belshe        , 

, 1264-65 (9th

Cir. 1997) (statutory reference to “pending” lawsuits encompasses not only

undecided cases at district court level but also cases pending on appeal),    cert.

denied , 

(1998);   de Rodulfa v. United States , 

, 1253

(D.C. Cir. 1972) (“suit is pending until the appeal is disposed of, and until

disposition any judgment appealed from it is still sub judice”). It is also

consistent with the requirement that state prisoners first exhaust all available state

court remedies before seeking federal habeas relief.       See Picard v. Connor , 

, 275 (1971); Dulin v. Cook , 

, 759 (10th Cir. 1992)

(concluding state prisoner did not fully exhaust state remedies because he did not

seek certiorari review with state supreme court). Although we did not directly

address the issue in Hoggro , we implicitly indicated § 2244(d)(2) encompasses a

properly filed appeal and/or petition for writ of 

n.4

(refusing to count additional time, for tolling purposes, during which prisoner

appealed state court denial of habeas petition because appeal was untimely). The

district court’s narrow definition of the term could result in state prisoners

forfeiting their right to federal habeas review while attempting to fully exhaust


                                            -4-
state court remedies.

       Barnett’s one-year period of limitation for filing an application for federal

habeas relief was tolled from the time he filed his state application on April 17,

1997, until the state supreme court denied his timely-filed petition for writ of

certiorari on May 29, 1997.    See Martinez v. State , 

, 251 (N.M. App.

1990) (petition for writ of certiorari may be filed with supreme court within thirty

days of denial of habeas petition). Thereafter, he had seven days, or until June 5,

1997, to file an application for federal habeas relief. Barnett’s federal habeas

petition was filed on June 3, 1997, and was clearly timely.   2



       REVERSED and REMANDED to the district court for further proceedings.

Barnett’s motion to file his reply brief out of time and his motion to file an

amended supplement to the reply brief are GRANTED.




       2
        We have not taken into account the “mailbox rule.”    See generally
Houston v. Lack , 

, 270 (1988) (pro se prisoner’s notice of appeal is
“filed” when delivered to prison officials for forwarding to clerk).

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