Lugo v. Terhune

54 F. App'x 662

Opinion

MEMORANDUM

**

Inez Tito Lugo appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition as untimely. Lugo seeks to challenge his California conviction and seventeen-year to life sentence for one count of second degree murder. We have jurisdiction pursuant to 28 U.S.C. § 2253. Reviewing de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), we vacate and remand.

Lugo contends that the district court erred in failing to toll the statute of limitations while his properly filed habeas petition was pending in California state court. Relying on our opinion in Dictado v. Ducharme, 189 F.3d 889 (9th Cir.1999) (“Dictado I”), the district court found that because Lugo’s petition filed in the California Supreme Court was not “properly” filed, it did not toll the statute of limitations. We have subsequently withdrawn Dictado I and issued a superceding opinion in Dictado v. Ducharme, 244 F.3d 724, 725 (9th Cir.2001) (“Dictado II’). In light of Dictado II, Lugo’s state habeas petition was properly filed.

We vacate the district court’s decision dismissing the petition as untimely, and remand for farther consideration in light of Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134,153 L.Ed.2d 260 (2002) and Saffold v. Carey, No. 99-15541, slip op. 493, 499-502, — F.3d - (9th Cir. Jan. 14, 2003).

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.