Phenix v. Schomig

398 F. App'x 247

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 4, 2010
• Docket: 06-17128
• Status: Unpublished

Opinion

MEMORANDUM **

Nevada state prisoner Raymond Gene Phenix appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction under 28 U.S.C. § 2253, and we reverse and remand.

Phenix contends that he is entitled to equitable tolling because his 2004 federal habeas petition, which became time-barred under Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), was timely under circuit law in effect when the petition was filed. See Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001), overruled by Pace, 544 U.S. at 417, 125 S.Ct. 1807. Phenix is entitled to equitable tolling under this court’s decision in Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008).

Like the petitioner in Harris, Phenix filed his federal habeas petition in reliance on Dictado, and before the Supreme Court decided Pace. Phenix diligently pursued his rights by filing numerous petitions for state post-conviction relief “while ensuring that enough time would remain to file a federal habeas petition under the then-existing Dictado rule.” Id. at 1055-56. Extraordinary circumstances over which Phenix had no control- — the Supreme Court’s decision in Pace — made it impossible for Phenix to timely file his petition. Id. at 1056. Accordingly, he is entitled to equitable tolling and his 2004 federal habeas petition is timely. See id. at 1057 (“Equitable principles dictate that we toll AED-PA’s statute of limitations in the rare case where a petitioner relies on our legally erroneous holding in determining when to file a federal habeas petition.”).

Because we find that Phenix’s petition is timely under Harris, we decline to reach the other certified issue.

We construe Phenix’s additional arguments as a motion to expand the certificate of appealability. So construed, the motion is denied. See 9th Cir. R. 22-l(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-OS (9th Cir.1999) (per curiam). His motion to expand the certificate of appealability is also denied. See id.

Last, Phenix’s motion to enlarge index of authorities is denied.

REVERSED and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.