Paul Welch v. Mat Manning

1The 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.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1051
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David Stewart, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Donald Roper, *
* [UNPUBLISHED]
Appellee. *
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Submitted: March 2, 2007
Filed: June 10, 2008
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Before SMITH, MAGILL 1 and BENTON, Circuit Judges.
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PER CURIAM.
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

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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.
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