Hernandez v. Mendoza-Powers

109 F. App'x 883

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 22, 2004
• Docket: No. 03-15197; D.C. No. CV-02-5548-HGB/HC
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner, Hector Hernandez, appeals the dismissal of his 28 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir.2003) (per curiam), and we vacate and remand.

Hernandez is entitled to statutory tolling during the entire time he was seeking one full round of collateral review by the California courts. See 28 U.S.C. § 2244(d); Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir.2003). Because Hernandez’s October 28, 2001, state habeas petition was an overlapping petition that began a separate round of review, it did not affect tolling during his second full round of review. See Delhomme, 340 F.3d at 819-21 (holding that overlapping petitions do not affect tolling during the time petitioner is seeking one full round of review). Accordingly, Hernandez’s 28 U.S.C. § 2254 petition was timely.¹ We vacate the district court’s dismissal, remand for further proceedings and we recommend that the district court consider appointing counsel.

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.

1 . Counsel’s motion to withdraw is denied as moot.