Lee v. Lampert

92 F. App'x 532

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 24, 2004
• Docket: No. 03-35183
• Status: Published

Opinion

MEMORANDUM

**

Oregon state prisoner Richard Lee appeals the district court’s dismissal, as time-barred, of his 28 U.S.C. § 2254 habeas petition, challenging his conviction for sodomy and sex abuse.

Lee contends, and the appellee agrees, that the district court erred in sua sponte concluding that Lee’s habeas petition on its face was untimely filed under the Anti-terrorism and Effective Death Penalty (“AEDPA”). The AEDPA, unless tolled, imposes a one-year statute of limitations on habeas petitions filed in federal court by state prisoners. When Lee filed his federal habeas petition on March 11, 2002 which was within one year of August 7, 2001, the alleged date that state court post-conviction proceedings became final, the district court erred in concluding that Lee’s petition was time-barred for that reason, see 28 U.S.C. § 2244(d), and the district court should not have dismissed the petition as untimely on its face. Because we conclude that Lee is entitled to remand for this reason, we do not consider the alternative arguments raised in his brief.

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.