Nardello v. Carey

128 F. App'x 662

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 2005
• Docket: No. 03-16275
• Status: Published

Opinion

MEMORANDUM

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Daniel Nardello appeals the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction under 28 U.S.C. § 2253, and we vacate and remand.

Because we conclude that the certificate of appealability was improvidently granted as to the constitutional issues, we dismiss those contentions for lack of jurisdiction. Cf. Phelps v. Alameda, 366 F.3d 722, 728 (9th Cir.2004).

In light of Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004), we remand for the district court to determine in the first instance whether Nardello was affirmatively misled when his first section 2254 habeas petition was dismissed without prejudice even though his Antiterrorism and Effective Death Penalty Act statute of limitations had already expired, and if so, whether he is entitled to equitable tolling. See id. at 2447.

DISMISSED in part; VACATED 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.