136 F. 3d 1342 - Al-Din v. Bowersox

Before MCMILLIAN and FAGG, Circuit Judges, and BENNETT,* District Judge.

BENNETT, District Judge.

Respondents appeals from the district court's order denying their motion to dismiss Mufid Al-Din's petition for writ of habeas corpus as untimely under the one-year time limitation set forth in 28 U.S.C. § 2244(d)(1). This appeal presents the same issue decided today by our opinion in Nichols v. Bowersox, --- F.3d ----, 1998 WL 151380 (8th Cir.1998). For the reasons set forth in Nichols, we affirm the district court's determination that the petition for writ of habeas corpus was timely filed. We express no opinion on the issue of equitable tolling.

FAGG, Circuit Judge, dissenting.

For the reasons stated in my dissent in Nichols v. Bowersox, --- F.3d ----, 1998 WL 151380 (8th Cir.1998), I decline to join the panel's opinion in this case. I would apply the court's decision in Allen v. Dowd, 964 F.2d 745 (8th Cir.), cert. denied, 506 U.S. 920, 113 S.Ct. 335, 121 L.Ed.2d 253 (1992), reject Al-Din's habeas petition, and request en banc review.