Mutch v. Morgan

71 F. App'x 640

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 24, 2003
• Docket: No. 01-35820; D.C. No. CV-99-01476-MJP
• Status: Published

Opinion

MEMORANDUM

**

Washington state prisoner Richard H. Mutch appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition, which challenges his conviction and life sentence for rape and kidnaping. We have jurisdiction pursuant to 28 U.S.C. § 2253(a). Reviewing de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), we vacate and remand.¹

The district court dismissed Mutch’s federal habeas petition as time-barred under 28 U.S.C. § 2244(d)(1). However, the district court did not consider whether Mutch is entitled to statutory tolling for the motion for relief from judgment he filed in state court in December 1998. See 28 U.S.C. § 2244(d)(2). In addition, the district court did not resolve the dispute between the parties as to whether Mutch mailed an additional motion for relief from judgment to the state court in January 1999 and, if so, whether that motion was “properly filed.” See id.; Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000) (explaining that “[a]n application is ‘filed,’ as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record”).

Thus, we vacate and remand for the district court to consider whether Mutch is entitled to statutory tolling for his December 1998 motion, his January 1999 motion, or both, and whether his federal petition is therefore timely.

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 may be provided by Ninth Circuit Rule 36-3.

1 . We grant appellant’s motion to expand the record on appeal and therefore take judicial notice of Mutch’s December 1998 and March 1999 state court filings. See Smith v. Duncan, 297 F.3d 809, 815 (9th Cir.2002) (taking judicial notice of state court documents relevant to the issue of statutory tolling).