No. 98-2624.United States Court of Appeals, Second Circuit.Argued and Submitted: March 26, 1999.
Decided: April 19, 1999.
Appeal from the United States District Court for the Southern District of New York (Loretta A. Preska, Judge) entered April 29, 1998, dismissing as time-barred petitioner-appellant’s petition for a writ of habeas corpus.
Page 261
We reverse and remand.
Solomon Rosengarten, Brooklyn, N Y for Petitioner-Appellant.
(Robert M. Morgenthau, District Attorney, New York County, New York, NY, Marc Frazier Scholl, Assistant District Attorney, New York, NY, of counsel, for Respondent-Appellee.)
Before: FEINBERG, PARKER, and POOLER, Circuit Judges.
PER CURIAM:
[1] Appellant, an inmate in state custody, appeals from a judgment dismissing as time-barred his first petition for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1) (one-year period of limitation applies to application for writ of habeas corpus by state prisoner). [2] Appellant’s petition was filed on April 16, 1997. In Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998) — which was decided after Judge Preska dismissed appellant’s petition — we held that first petitions brought under 28 U.S.C. § 2254 will not be dismissed as time-barred if filed on or before April 24, 1997. In light o Ross, the judgment must be reversed. [3] Appellee argues that this appeal should be dismissed because Judge Preska erred in granting a certificate of appealability on the statute of limitations issue. Appellee contends that the misapplication of the statute of limitations does not rise to the level of the “denial of a constitutional right” so as to permit an appeal. See 28 U.S.C. § 2253(c)(2) (“A certificate of appealabilty may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.”) However, appellee concedes that this specific issue has been raised before other panels of this Court, and that those other panels have rejected the argument sub silentio. [4] In accord with those prior rulings, we REVERSE the judgment of the district court and REMAND for consideration of the merits of the petition.