Garcia v. Alameida

118 F. App'x 156

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 23, 2004
• Docket: No. 02-56331; D.C. No. CV-02-04413-HLH
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Robert John Garcia appeals the dismissal of his 28 U.S.C. § 2254 petition as second or successive. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo a district court’s decision to deny a § 2254 petition, see White v. Lambert, 370 F.3d 1002, 1005 (9th Cir.2004), and we reverse and remand.

In his § 2254 petition, Garcia contends that he is being held beyond his mandatory parole date. A review of the record demonstrates that his parole issues have never been decided on the merits and could not have been raised in Garcia’s earlier petitions challenging his convictions and sentence. , The district court erred in dismissing Garcia’s petition as second or successive. See Hill v. Alaska, 297 F.3d 895, 898-99 (9th Cir.2002).

Accordingly, we reverse and remand to the district court for further proceedings. We express no opinion on whether Garcia has properly exhausted his state court remedies or whether Garcia’s § 2254 petition is timely.

REVERSED AND REMANDED.¹

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.

1 . To the extent Garcia raised an issue not certified for appeal, we construe it as a motion to expand the certificate of appealability, and we deny the motion as moot. See 9th Cir. R. 22-l(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).