Cowan v. Clarke

49 F. App'x 676

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 10, 2002
• Docket: No. 00-16617; D.C. No. CV-99-06111-HGB
• Status: Published

Opinion

MEMORANDUM

**

David William Cowan appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition challenging his California first-degree murder conviction. 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.

Cowan contends that the district court erred by dismissing his petition as untimely because he was entitled to equitable tolling. The district court correctly determined that Cowan was not entitled to equitable tolling as a result of his counsel’s allegedly incorrect advice. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.), cert. denied, — U.S. -, 122 S.Ct. 1913, 152 L.Ed.2d 823 (2002). However, our review of the record indicates that the district court, not having the benefit of our decision in Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir.2001) (concluding that for statutory tolling purposes the California Supreme Court’s denial of a habeas petition is not final for 30 days), incorrectly determined that Cowan’s federal petition was untimely unless equitable tolling further extended his one-year limitation period.

Giving Cowan the benefit of statutory tolling under 28 U.S.C. § 2244(d)(2) for the time his state habeas petitions were pending, see Artuz v. Bennett, 531 U.S. 4, 9-10, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000) (concluding that a state petition is properly filed and tolls the limitations period when it is delivered and accepted by the court for filing), the 30-day rule pursuant to Bunney, and the “prisoner mail box” rule articulated in Houston v. Lack, 487 U.S. 266, 270-271, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), we conclude that his federal petition was timely filed. Accordingly, we vacate the decision of the district court and remand for further proceedings.

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 9 th Cir. R. 36-3.