Dearcey Stewart v. Matthew Cate

I respectfully dissent. I would reverse the district court’s dismissal of Stewart’s habeas petition.

In my view, Stewart was entitled to statutory tolling of the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) one-year limitations period during the 100-day interval between his successive state habeas petitions. Alternatively, I would remand with instructions to hold an evi-dentiary hearing on Stewart’s claim for an equitable exception to AEDPA’s filing deadline under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), as applied in McQuiggin v. Perkins, — U.S. -, 133…