Roberson v. Hubbard

44 F. App'x 180

Opinion

ORDER

*

This case is remanded to the district court for further proceedings consistent with Carey v. Saffold, — U.S.-, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). Specifically, we remand for an evidentiary hearing so that the district court may determine whether Roberson filed his original habeas petition in the California Supreme Court “within a reasonable time after [he] knew, or with due diligence should have known, the facts underlying the claim as well as the legal basis of the claim.” Saffold v. Carey, 295 F.3d 1024 (9th Cir.2002) (quoting In re Harris, 5 Cal.4th 813, 21 Cal.Rptr.2d 373, 855 P.2d 391, 398 n. 7 (Cal.1993)). If Roberson’s petition to the California Supreme Court was timely in light of this standard, then the federal habeas petition was timely as well, as a California state habeas petition is “pending” during the interval between a lower court decision on the petition and the filing of a new petition in the California Supreme Court. Saffold, — U.S. at ---, 122 S.Ct. at 2140-41.

REMANDED.

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.