Trudeau v. Runnels

120 F. App'x 95

Opinion

MEMORANDUM

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Frank W. Trudeau appeals the district court’s order dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see Lott v. Mueller, 304 F.3d 918, 922 (9th Cir.2002), and we vacate the dismissal and remand for further development of the record.

The state concedes that the district court erred in its calculation of filing dates and application of the mailbox rule. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). We agree and conclude that Trudeau filed his first state habeas petition only seven days after the statute of limitations expired.

We vacate and remand so that the district court may give the state an opportunity to respond to Trudeau’s assertions that he is entitled to equitable tolling, see Lott, 304 F.3d at 924-25, and so that the district court can more fully develop the factual record regarding Trudeau’s assertions for equitable tolling, see United States v. Battles, 362 F.3d 1195, 1199 (9th Cir.2004).

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 provided by Ninth Circuit Rule 36-3.