Handy v. Giurbino ( 2010 )

FILED
NOT FOR PUBLICATION JUN 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
REGINALD HANDY, No. 07-56767
Petitioner - Appellant, D.C. No. CV-03-04204-ABC
v.
MEMORANDUM *
G. J. GIURBINO,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Reginald Handy appeals from the district court’s judgment dismissing his 28
U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 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).
Handy contends that he was entitled under 28 U.S.C. § 2244(d)(2) to
statutory tolling of the period between the California Court of Appeal’s denial of
his state habeas petition and his filing of a state habeas petition in the California
Supreme Court. Because Handy provided no explanation in his state petition for
the seven-month delay, as is required under California law, he is not entitled to
statutory tolling. See Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per
curiam); see also Waldrip v. Hall, 548 F.3d 729, 734-35 (9th Cir. 2008).
Handy further contends 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 v. DiGuglielmo, 544 U.S. 408, 417 (2005). This
contention has merit. The record establishes that Handy pursued his rights
diligently; had Pace not overturned Dictado, Handy’s federal habeas petition
would have been timely. See Harris v. Carter, 515 F.3d 1051, 1055-56 (9th Cir.
2008) (holding, in a case decided after the district court’s judgment denying
Handy’s petition, that equitable tolling applied under these circumstances); see
also Townsend v. Knowles, 562 F.3d 1200, 1205-06 (9th Cir. 2009). Although the
Government contends that Handy did not raise this argument in the district court,
the record indicates that Handy sufficiently raised the issue in his traverse. Thus,
Handy is entitled to equitable tolling of the one-year statute of limitations.
2 07-56767
Because Handy is entitled to equitable tolling under Harris, we do not
address his additional contentions related to equitable tolling. We reverse the
judgment of the district court dismissing Handy’s petition and remand for further
proceedings consistent with this decision.
REVERSED and REMANDED.
3 07-56767