Mufid Al-din, Also Known As Charles A. Parker, Appellee, v. Michael Bowersox, et al., Appellants, 176 F.3d 1043 (8th Cir. 1999)

Respondent Michael Bowersox appeals from an order entered in the United States District Court²  for the Western District of Missouri denying his motion to dismiss Mufid Al-Din's petition for writ of habeas corpus as untimely filed under 28 U.S.C. § 2244(d) (1). Parker v. Bowersox, 975 F. Supp. 1251 (W.D. Mo. 1997) (order denying respondent's motion to dismiss and granting respondent's motion for an interlocutory appeal). Jurisdiction in the district court was based upon 28 U.S.C. §§ 1331, 2254. Jurisdiction in this court is based upon 28 U.S.C. § 1292(b). In an earlier proceeding, a divided panel of this court affirmed. We subsequently vacated the panel opinion and granted respondent's suggestion for rehearing en banc. Now, in accordance with our en banc opinion filed on this date in the consolidated cases under the title Nichols v. Bowersox, 172 F.3d 1068 (8th Cir. 1999) (en banc), we affirm the order of the district court denying respondent's motion to dismiss. See 8th Cir.R. 47B.

BEAM, Circuit Judge, dissenting.

I respectfully dissent for the reasons I advance in Nichols v. Bowersox, 172 F.3d 1068 and Crane v. Dormire, 172 F.3d 1068. Accordingly, I would either dismiss this case or remand it to the district court with directions to grant appellants' motion to dismiss.