Lapena v. Del Papa

79 F. App'x 268

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 20, 2003
• Docket: No. 02-16573
• Status: Published

Opinion

MEMORANDUM

**

Nevada state prisoner, Frank Ralph LaPena, appeals pro se the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as untimely. 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 reverse and remand.

LaPena contends that the district court improperly dismissed his section 2254 petition as untimely because the statute of limitations was tolled pursuant to 28 U.S.C. § 2244(d)(2). The government concedes that LaPena’s petition was timely filed because the district court failed to consider all of LaPena’s state post-conviction petitions when tolling the statute of limitations.

Accordingly, we reverse and remand the district court’s judgment for further proceedings.

REVERSED 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.