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BANJO v. AYERS

No. 08-56512.

614 F.3d 964 (2010)

Del BANJO, Petitioner-Appellant, v. Robert L. AYERS, Jr., Warden, San Quentin Prison, Respondent-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed June 17, 2010.

Attorney(s) appearing for the Case

Dennis A. Fischer (argued) and John M. Bishop, Santa Monica, CA, for petitioner-appellant Del Banjo.

Edmund G. Brown Jr., Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Xiomara Costello, Supervising Deputy Attorney General, and Daniel C. Chang, Deputy Attorney General (argued), Los Angeles, CA, for respondent-appellee Robert L. Ayers, Jr., Warden, San Quentin Prison.

Before: DIARMUID F. O'SCANNLAIN and RICHARD C. TALLMAN, Circuit Judges, and FREDERIC BLOCK, District Judge.

OPINION

TALLMAN, Circuit Judge:

Petitioner-Appellant Del Banjo, a California prisoner, appeals an order dismissing his federal habeas corpus petition as untimely pursuant to 28 U.S.C. § 2244(d). The district court determined that Banjo's state court petition for habeas corpus was no longer "pending" during the five-month period between the dismissal of his original petition in the Los Angeles County Superior Court and the filing of a successive

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