FILED
NOT FOR PUBLICATION JAN 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TRAVON EDWARD CLARDY, No. 07-55825
Petitioner - Appellant, D.C. No. CV-06-03048-JSL
v.
MEMORANDUM *
MARK CASTELLAW, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, District Judge, Presiding
Argued and Submitted December 7, 2009
Pasadena, California
Before: PREGERSON and PAEZ, Circuit Judges, and MAHAN, ** District Judge.
Travon Clardy, a California state prisoner, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely. We have
jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo whether the statute
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
of limitations should be tolled. Townsend v. Knowles, 562 F.3d 1200, 1204 (9th
Cir. 2009). We reverse.
The facts are known to the parties, and we state them here only as necessary
to explain our disposition. The California Supreme Court held that Clardy’s state
habeas petition was untimely. Therefore Clardy’s petition was not “properly filed”
as required by 28 U.S.C. § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408,
417 (2005). As a result, Clardy is ineligible for statutory tolling of the statute of
limitations for his federal habeas petition during the time his state habeas petition
was pending before the California Supreme Court. Id.
Clardy argues that he is entitled to equitable tolling based on his reasonable
reliance on Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001),
overturned by Pace.1 We agree. The record establishes that Clardy pursued his
rights diligently; had Pace not overturned Dictado, Clardy’s federal habeas petition
would have been timely. Therefore, Clardy is entitled to equitable tolling of the
one-year statute of limitations. See Harris v. Carter, 515 F.3d 1051, 1055-56 (9th
Cir. 2008). Accordingly, we reverse the judgment of the district court dismissing
Clardy’s federal habeas petition as time-barred.
REVERSED AND REMANDED.
1
Although Clardy did not raise this issue to the district court, we granted
Clardy’s motion to expand his certificate of appealability to encompass this issue
pursuant to 9th Cir. R. 22-1(e).