FILED
NOT FOR PUBLICATION MAR 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EZZARD CHARLES ELLIS, No. 10-56441
Petitioner - Appellant, D.C. No. 5:05-cv-00520-SJO
v.
MEMORANDUM*
C. M. HARRISON, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
California state prisoner Ezzard Charles Ellis appeals 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.
*
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).
The district court concluded that Ellis is not entitled to equitable tolling of
AEDPA’s statute of limitations because he did not demonstrate actual reliance on
Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001), abrogated by Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005). This court has since concluded that a
petitioner’s actual reliance on precedent that is later overturned may be presumed
in circumstances such as those presented in this case. See Nedds v. Calderon, 678
F.3d 777, 782-83 (9th Cir. 2012). The record shows that Ellis believed he could
pursue relief in state court without jeopardizing his ability to file in federal court.
The record further shows that he pursued his rights diligently, “while ensuring that
enough time would remain to file a federal habeas petition under the then-existing
Dictado rule.” Harris v. Carter, 515 F.3d 1051, 1055-56 (9th Cir. 2008). Thus,
Ellis is entitled to equitable tolling and Ground One of his 2005 federal habeas
petition is timely. See Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012)
(AEDPA’s statute of limitations “applies to each claim in a habeas application on
an individual basis”); Harris, 515 F.3d 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.”).
2 10-56441
We decline to consider appellee’s argument that Ground One is procedurally
defaulted. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (declining to
consider arguments raised for the first time on appeal).
Accordingly, we reverse the judgment of the district court and remand for
further proceedings consistent with this decision.
REVERSED and REMANDED.
3 10-56441