United States v. Clelland

43 F. App'x 120

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 30, 2002
• Docket: No. 01-35599; D.C. No. CV-01-00044-BLW CR-96-00114-BLW
• Status: Published

Opinion

MEMORANDUM

**

Lane Leroy Clelland, a federal prisoner, appeals pro se the denial of his 28 U.S.C. § 2255 motion challenging his jury trial convictions for firearm, drug, and destructive device violations. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, United States v. Sanchez-Cervantes, 282 F.3d 664, 666 (9th Cir.2002), and we reverse and remand for further proceedings.

Clelland contends that the district court erred in sua sponte dismissing his section 2255 motion for being untimely before giving him notice and an opportunity to be heard. The government correctly concedes that our subsequent decision in Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2000) necessitates remand.

We express no opinion on the timeliness of the section 2255 motion. See id. at 1044 (deferring to the district court for development and assessment of facts).

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.