Morrison v. Mahoney

31 F. App'x 389

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 20, 2002
• Docket: No. 00-35427; D.C. No. CV-99-00151-RWA
• Status: Published

Opinion

MEMORANDUM

**

Montana state prisoner James Morrison appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, review de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and reverse and remand.

Under the AEDPA, Morrison had until May 14, 1997, to file his 28 U.S.C. § 2254 petition. See 28 U.S.C. § 2244(d)(1). Absent equitable tolling of the statute of limitations, therefore, Morrison’s petition filed November 8,1999, is untimely.

Morrison contends that the district court erred by not granting him equitable tolling for the period during which he was incarcerated outside of Montana and denied access to necessary legal materials.¹ See Miles, 187 F.3d at 1107 (concluding that when external forces, rather than the petitioner’s lack of diligence, account for the failure to file a timely claim, equitable tolling may be appropriate). Because the district court did not have the benefit of our en banc decision in Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir.2000) (en banc) (per curiam), and no evidentiary hearing was held, we reverse and remand to the district court for appropriate development of the record and factual findings. Id. at 1148 (determining that where it cannot be said that there are no circumstances consistent with petitioner’s petition and declaration under which he would be entitled to equitable tolling, reversal is proper).

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 may be provided by Ninth Circuit Rule 36-3.

1 . We decline to consider additional issues raised by Morrison that were not certified for review. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam), cert. denied, 529 U.S. 1009, 120 S.Ct. 1281, 146 L.Ed.2d 228 (2000).