The opinion of the court was delivered by: Becker, Chief Circuit Judge.
On Appeal From the United States District Court For the District of New Jersey (D.C. Civ. No. 97-cv-2844)
Submitted by the Clerk for a certificate of appealability pursuant to 28 U.S.C. § 2253 Jan. 8, 1998
*Honorable Edward R. Becker, United States Circuit Judge for the Third Circuit, assumed Chief Judge status on February 1, 1998.
FRANK T. MILLER #58406 Riverfront State Prison P.O. Box 9104 Camden, NJ 08101 Pro se
This appeal of the district court's denial of Miller's motion for an extension of time to file a petition for a writ of habeas corpus, submitted as an application for a certificate of appealability, 28 U.S.C. § 2253(c)(1), presents the question whether the period of limitation set forth in 28 U.S.C. § 2244(d)(1) is subject to equitable tolling. We conclude that it is, and thus we will grant the certificate of appealability, vacate the order of the district court dismissing Miller's motion, and remand for further consideration.
In 1994, the New Jersey Department of Corrections found inmate Frank Miller guilty of conspiring to introduce narcotics into prison. Miller appealed the administrative decision through the state courts. The New Jersey Superior Court, Appellate Division, affirmed the Department of Corrections, and the New Jersey Supreme Court denied Miller's petition for certification. Miller then moved in the district court for an extension of time to file a habeas petition. The district court denied the motion,finding that it was filed more than one year after the one year limitation period of § 2244(d)(1) became effective under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and thus was untimely. Miller filed a timely appeal which we construe as a request for a certificate of appealability pursuant to § 2253(c)(1).
Section 2244(d)(1) provides:
A 1-year period of limitation shall apply to an application for a writ of by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --
(A) the date on which the judgment became final by the Conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing a n application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...