Tann v. Snyder

27 F. App'x 799

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 13, 2001
• Docket: No. 00-35290; D.C. No. CY-99-05402-FDB
• Status: Published

Opinion

MEMORANDUM

**

William Tann appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 petition as time barred. Tann seeks to challenge his state conviction for one count of first degree leading organized crime, two counts of second degree theft, four counts of first degree theft, and one count of tampering with a witness. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we vacate and remand.

We granted a certificate of appealability limited to the issue of whether the district court properly dismissed Tann’s § 2254 petition as untimely.¹ Relying on our opinion in Dictado v. Ducharme, 189 F.3d 889 (9th Cir.1999) (Dictado I), the district court found that Tann’s “deficient” state post-conviction petition did not toll the statute of limitations, and dismissed Tann’s § 2254 petition as untimely. We have subsequently withdrawn Dictado I and issued a superseding opinion in Dictado v. Duc-harme, 244 F.3d 724, 725 (9th Cir.2001) (.Dictado II). In light of Dictado II, Tann’s § 2254 petition is timely.

Accordingly, the district court’s order dismissing Tann’s § 2254 petition is vacated and the ease remanded for further proceedings.

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 9th Cir. R. 36-3.

1 . To the extent that Tann argues other issues in his brief, we may not consider them because they fall outside the scope of the certificate of appealability. Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam), cert. denied, 529 U.S. 1009, 120 S.Ct. 1281, 146 L.Ed.2d 228 (2000).