Handy v. Giurbino

Ninth Circuit

Handy v. Giurbino

385 F. App'x 616

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 17, 2010

Docket07-56767

StatusUnpublished

This text of 385 F. App'x 616 (Handy v. Giurbino) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Handy v. Giurbino, 385 F. App'x 616 (9th Cir. 2010).

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Opinion

MEMORANDUM **

Reginald Handy appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we reverse.

Handy contends that he was entitled under 28 U.S.C. § 2244(d)(2) to statutory tolling of the period between the California Court of Appeal’s denial of his state habe-as petition and his filing of a state habeas petition in the California Supreme Court. Because Handy provided no explanation in his state petition for the seven-month delay, as is required under California law, he is not entitled to statutory tolling. See Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir.2010) (per curiam); see also Waldrip v. Hall, 548 F.3d 729, 734-35 (9th Cir.2008).

Handy further contends that he is entitled to equitable tolling based on his reasonable reliance on Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir.2001), overturned by Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). This contention has merit. The record establishes that Handy pursued his rights diligently; had Pace not overturned Dictado, Handy’s federal habeas petition would have been timely. See Harris v. Carter, 515 F.3d 1051, 1055-56 (9th Cir.2008) (holding, in a case decided after the district court’s judgment denying Handy’s petition, that equitable tolling applied under these circumstances); see also Townsend v. Knowles, 562 F.3d 1200, 1205-06 (9th Cir.2009). Although the Government contends that Handy did not raise this argument in the district court, the record indicates that Handy sufficiently raised the issue in his traverse. Thus, Handy is entitled to equitable tolling of the one-year statute of limitations.

Because Handy is entitled to equitable tolling under Harris, we do not address his additional contentions related to equitable tolling. We reverse the judgment of the district court dismissing Handy’s petition and remand for further proceedings consistent with this decision.

REVERSED and REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

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MEMORANDUM **

Reginald Handy appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we reverse.

Handy contends that he was entitled under 28 U.S.C. § 2244(d)(2) to statutory tolling of the period between the California Court of Appeal’s denial of his state habe-as petition and his filing of a state habeas petition in the California Supreme Court. Because Handy provided no explanation in his state petition for the seven-month delay, as is required under California law, he is not entitled to statutory tolling. See Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir.2010) (per curiam); see also Waldrip v. Hall, 548 F.3d 729, 734-35 (9th Cir.2008).

Handy further contends that he is entitled to equitable tolling based on his reasonable reliance on Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir.2001), overturned by Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). This contention has merit. The record establishes that Handy pursued his rights diligently; had Pace not overturned Dictado, Handy’s federal habeas petition would have been timely. See Harris v. Carter, 515 F.3d 1051, 1055-56 (9th Cir.2008) (holding, in a case decided after the district court’s judgment denying Handy’s petition, that equitable tolling applied under these circumstances); see also Townsend v. Knowles, 562 F.3d 1200, 1205-06 (9th Cir.2009). Although the Government contends that Handy did not raise this argument in the district court, the record indicates that Handy sufficiently raised the issue in his traverse. Thus, Handy is entitled to equitable tolling of the one-year statute of limitations.

Because Handy is entitled to equitable tolling under Harris, we do not address his additional contentions related to equitable tolling. We reverse the judgment of the district court dismissing Handy’s petition and remand for further proceedings consistent with this decision.

REVERSED and REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

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385 F. App'x 616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/handy-v-giurbino-ca9-2010.

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