In habeas proceedings district court's dismissal of the petition as time-barred is reversed and remanded as a state post-conviction motion to reduce an imposed sentence that seeks purely discretionary leniency and does not challenge the validity of the conviction or sentence acts as a tolling mechanism within the purview of 28 U.S.C section 2244(d)(2), and thus, defendant's habeas petition was timely filed and improvidently dismissed.
Appeal from the United States District Court for the District of Rhode Island
Decided September 23, 2009
Opinion by Seyla, Circuit Judge
For Appellant: Judith H. Mizner, Assistant Federal Public Defender
For Appellee: Christopher R. Bush, Special Assistant Attorney General, with whom Patrick C. Lynch, Attorney General