Wallace v. Ayers

32 F. App'x 481

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2002
• Docket: No. 00-55884; D.C. No. CV-98-02090-WDK
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Nathaniel Deon Wallace appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition, challenging his robbery and attempted murder convictions. The district court dismissed Wallace’s petition as time-barred under AEDPA’s one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the district court’s decision to deny a habeas petition, Wade v. Terhune, 202 F.3d 1190, 1194 (9th Cir.2000), and we vacate and remand.

The basis of the district court’s decision, which was made without the benefit of our recent decision in Bunney v. Mitchell, is erroneous. See Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir.2001) (per curiam) (concluding that under California Rule of Court 24, the supreme court’s denial of a habeas petition becomes final 30 days after entry of the order). The record is not sufficiently developed for us to determine whether Wallace is otherwise entitled to statutory tolling under § 2244(d)(2) such that his federal petition is timely. We therefore vacate the district court’s decision and remand. The district court is directed to reevaluate the timeliness of Wallace’s petition and to order the production of such evidence concerning the filing dates and final decisions of all of Wallace’s

state petitions as is appropriate for the resolution of this issue.

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.