FILED
NOT FOR PUBLICATION OCT 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAYMOND GENE PHENIX, No. 06-17128
Petitioner - Appellant, D.C. No. CV-03-00485-RCJ
v.
MEMORANDUM *
JAMES SCHOMIG,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Nevada state prisoner Raymond Gene Phenix appeals pro se from the district
court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We
have jurisdiction under 28 U.S.C. § 2253, and we reverse and remand.
Phenix contends that he is entitled to equitable tolling because his 2004
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
federal habeas petition, which became time-barred under Pace v. DiGuglielmo, 544
U.S. 408 (2005), was timely under circuit law in effect when the petition was filed.
See Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001), overruled by
Pace, 544 U.S. at 417. Phenix is entitled to equitable tolling under this court’s
decision in Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008).
Like the petitioner in Harris, Phenix filed his federal habeas petition in
reliance on Dictado, and before the Supreme Court decided Pace. Phenix
diligently pursued his rights by filing numerous petitions for state post-conviction
relief “while ensuring that enough time would remain to file a federal habeas
petition under the then-existing Dictado rule.” Id. at 1055-56. Extraordinary
circumstances over which Phenix had no control – the Supreme Court’s decision in
Pace – made it impossible for Phenix to timely file his petition. Id. at 1056.
Accordingly, he is entitled to equitable tolling and his 2004 federal habeas petition
is timely. See id. at 1057 (“Equitable principles dictate that we toll AEDPA’s
statute of limitations in the rare case where a petitioner relies on our legally
erroneous holding in determining when to file a federal habeas petition.”).
Because we find that Phenix’s petition is timely under Harris, we decline to
reach the other certified issue.
We construe Phenix’s additional arguments as a motion to expand the
2 06-17128
certificate of appealability. So construed, the motion is denied. See 9th Cir. R.
22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per
curiam). His motion to expand the certificate of appealibility is also denied. See
id.
Last, Phenix’s motion to enlarge index of authorities is denied.
REVERSED and REMANDED.
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