Opinion
No. 07-1051.
Submitted: March 2, 2007.
Filed: June 10, 2008.
Appeal from the United States District Court for the Western District of Missouri.
David Stewart, Mineral Point, MO, pro se.
Andrew W. Hassell, Asst. Atty. Gen., Jefferson City, MO, for appellee.
Before SMITH, MAGILL and BENTON, Circuit Judges.
The Honorable Frank J. Magill retired effective August 31, 2007. This opinion is being filed by the remaining judges of the panel pursuant to 28 U.S.C. § 46(d) and 8th Cir. R. 47E.
[UNPUBLISHED]
The district court held Stewart's petition for habeas corpus relief was untimely. On appeal, we reversed. Stewart v. Roper, No. 07-1051 (8th Cir. Feb. 5, 2007) (Judgment). We found the petition timely based on the rationale of our en banc decision in Nichols v. Bowersox, 172 F.3d 1068, 1072 (8th Cir. 1999), reasoning that the state court judgment against Stewart was final 90 days after the Missouri Court of Appeals entered its judgment, on the assumption that Stewart could have filed a writ of certiorari with the United States Supreme Court. On March 2, 2007, we granted the petition for panel rehearing and vacated our prior judgment.
After the judgment in this case, the en banc court in Riddle v. Kemna, 523 F.3d 850 (8th Cir. 2008), abrogated the 90-day rule of Nichols. The court in Riddle, however, characterized the abrogation as an "extraordinary circumstance, external to Riddle and not attributable to him" that might justify the application of the doctrine of equitable tolling. Id. at 857. We remanded in Riddle with instructions for the district court to consider the doctrine of equitable tolling. The present case requires the same action. We remand for further proceedings consistent with this opinion and Riddle.