Robinson v. Adams

83 F. App'x 237

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2003
• Docket: No. 03-55209; D.C. No. CV-01-00682-AHM
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner George H. Robinson appeals pro se the district court’s judgment dismissing with prejudice his 28 U.S.C. § 2254 petition for writ of habeas corpus as time-barred. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we vacate the district court’s judgment and remand for consideration on the merits.

Robinson contends that the statute of limitations should be equitably tolled because the district court misleadingly told him that he could dismiss his first petition without prejudice. Appellee concedes that, in light of this Court’s recent equitable tolling cases, the district court erred and that the case should be remanded for a decision on the merits. See, e.g., Brambles v. Duncan, 330 F.3d 1197, 1202 (9th Cir.2003) (stating that the district court “should have informed the pro se Brambles that the dismissal of his first petition, although ostensibly without prejudice, would effectively be with prejudice unless he could establish that the limitations period was equitably tolled[,] ... [and] also should have informed Brambles about the stay and abey process”), as amended by 342 F.3d 898 (9th Cir.2003).

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.