Freck v. Stewart

104 F. App'x 661

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 13, 2004
• Docket: No. 03-16262; D.C. No. CV-01-02091-ROS
• Status: Published

Opinion

MEMORANDUM

**

Arizona state prisoner Shawn James Freck appeals a judgment of the district court dismissing with prejudice his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we review the district court’s denial of habeas corpus for untimeliness de novo. Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir.2003) We vacate the judgment of the district court and remand for consideration on the merits of the petition.

This Court issued a Certificate of Ap-pealability on the issue of equitable tolling and appointed counsel sua sponte. On June 3, 2004, Freck filed with his Reply Brief a Motion to Broaden the Certificate of Appealability to include the issue of statutory tolling, and an unopposed Motion to Supplement the Record on Appeal. The motions are GRANTED. See Circuit Rule 22-1, Advisory Committee Note; Circuit Rule 30-1.7.

The state court documents in appellant’s Supplemental Excerpts of Record were not before the district court. These documents show that Freck filed a petition for review with the Arizona Supreme Court on direct appeal, meaning that his conviction actually became final in March 1999. Therefore, with the benefit of statutory tolling thereafter, his § 2254 petition was timely filed. Accordingly, we vacate the judgment of the district court and remand for consideration on the merits.

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.