Robins v. Carey

44 F. App'x 804

Opinion

MEMORANDUM

Footnotes

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Robert Lee Robins, Jr. appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition challenging his 11-year sentence following a jury trial conviction for attempted second-degree robbery in violation of Cal. Pen.Code §§ 664 and 211. We have jurisdiction pursuant to 28 U.S.C. , we review de novo, see Patterson v. Gomez, 223 F.3d 959, 962 (9th Cir.2000), cert, denied sub nom. Terhune v. Patterson, 531 U.S. 1104, 121 S.Ct. 844, 148 L.Ed.2d 723 (2001), and reverse.

Robbins contends that the district court erred when it dismissed his § 2254 motion as untimely. The district court concluded that the state petitions filed by Robins within the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) one year statute of limitations could not provide the basis for tolling because they presented none of the claims raised in his federal petition. As the government concedes in its answering brief, we have recently ruled otherwise. At the time of its order, the district court did not have the benefit of our decision in Tillema v. Long, 253 F.3d 494, 502 (9th Cir.2001) (en banc) (holding that the “AEDPA’s period of limitation is tolled during the pendency of a state application challenging the pertinent judgment, even if the particular application does not include a claim later asserted in the federal habeas petition”). Accordingly, we reverse and remand.

REVERSED 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.