Shamburger v. Roe

22 F. App'x 891

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 28, 2001
• Docket: No. 00-56906; D.C. No. CV-99-12913-DDP (MC)
• Status: Published

Opinion

MEMORANDUM

**

James Shamburger, a California state prisoner, appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition on statute of limitations grounds. We have jurisdiction pursuant to 28 U.S.C. § 2253, review de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and reverse and remand.

Shamburger contends that his section 2254 petition is timely under Artuz v. Bennett, 531 U.S. 4, 9-10, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), and Dictado v.. Duc-harme, 244 F.3d 724, 726 (9th Cir.2001) (determining that a state petition is properly filed and acts to toll the limitations period when it is delivered and accepted by the court for filing). The district court’s ruling which is the subject of this appeal preceded both decisions. Accordingly, as the government concedes, Sham-burger’s federal petition filed on December 9,1999, is timely.¹

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.

1 . Because we reverse and remand based on Dictado, we do not consider Shamburger's other contentions that tolling is proper because he had state and federal petitions pending or that he is entitled to equitable tolling.