Mosley v. Roe

58 F. App'x 739

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2003
• Docket: No. 01-57246; D.C. No. CV-01-05410-NM
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Shonte Novell Mosley appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habeas petition as procedurally barred. We have jurisdiction pursuant to 28 U.S.C. § 2253(a). Reviewing de novo, Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001), we affirm in part and reverse and remand in part.

The California Supreme Court denied Mosley’s habeas petition, which was filed after In re Robbins, 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998), as untimely. We recently concluded that California’s untimeliness rule is an independent state ground for cases initiated after Robbins. See Bennett v. Mueller, 296 F.3d 752 (2002), amended on denial of reh’g, 322 F.3d 573, 574, 582-583 (9th Cir. 2003). We therefore affirm the district court’s ruling on the issue of independence.

In Bennett, we did not decide whether California’s untimeliness rule is also an adequate state ground, but we explained where the burden of proof on this issue lies. Id. at 583-586. Because this is a new standard, we reverse on the issue of adequacy and remand for the district court to reconsider in light of Bennett.1

AFFIRMED in part; REVERSED AND REMANDED in part.

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 . We decline the State’s invitation to consider whether Mosley's petition is timely because the district court has not yet addressed this issue.