Boscaino v. Roe

58 F. App'x 726

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2003
• Docket: No. 00-56235; D.C. No. CV-00-00028-DOC
• Status: Published

Opinion

MEMORANDUM

**

Ronald E. Boscaino appeals the district court’s order dismissing as untimely his 28 U. S.C. § 2254 petition challenging his convictions for first-degree murder, attempted murder, kidnapping for robbery, first and second degree robbery, first degree burglary, and grand theft auto. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we vacate and remand.

Boscaino contends that the district court erroneously concluded that he was not entitled to statutory tolling for the thirteen-month period between the Los Angeles County Superior Court’s denial of his habeas petition and the filing of another habeas petition in the California Court of Appeal. This argument may have merit. First, the California Court of Appeal’s citation to a section of In re Clark (1993) 5 Cal.4th 750, 769, 21 Cal.Rptr.2d 509, 855 P.2d 729, addressing successive petitions, did not signify that Boscaino failed to justify substantial defy in presenting his claims. Moreover, at the time of its order, the district court did not have the benefit of our decision in Saffold v. Carey, 312 F.3d 1031, 1035-36 (9th Cir.2002), where we concluded that under certain circumstances, petitioner is entitled to statutory tolling. Accordingly, we vacate and remand so that the district court may reconsider its determination in light of the Supreme Court’s decision in Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002), and this court’s decision on remand in Saffold v. Carey, 312 F.3d 1031 (9th Cir.2002).

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.