Opinion
No. 07-16169.
Argued and Submitted November 17, 2008.
Filed December 1, 2008.
Debra Bookout, Assistant Federal Public Defender, Federal Public Defender's Office, Las Vegas, NV, for Petitioner-Appellant.
Robert E. Wieland, Esquire, Senior Deputy Attorney General, Office of the Nevada Attorney General, Reno, NV, for Respondents-Appellees.
Appeal from the United States District Court for the District of Nevada, Kent J. Dawson, District Judge, Presiding. D.C. No. CV-05-00348-KJD/VPC.
Before: NOONAN, KLEINFELD and IKUTA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Ryan Moore is ineligible for statutory tolling of his federal habeas petition during the time his state habeas petition was pending before the Nevada Supreme Court. The Nevada Supreme Court held that Moore's state petition was untimely, and therefore the petition was not "properly filed" as required by 28 U.S.C. § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).
Moore is entitled to equitable tolling of the one-year statute of limitations under § 2244(d)(2) because his state habeas petition would have been "properly filed" under our decision in Dictado v. Ducharme, 244 F.3d 724 (9th Cir. 2001). See Harris v. Carter, 515 F.3d 1051, 1057 (9th Cir. 2008). Moore relied on this court's decision in Dictado, and his federal petition became untimely when Dictado was overruled by the United States Supreme Court in Pace. Id. Moreover, the record establishes that Moore pursued his rights diligently. Therefore, Moore is entitled to equitable tolling of the one-year statute of limitations. Accordingly, we reverse the judgment of the district court dismissing Moore's federal habeas petition as time-barred.
Although Moore did not raise this issue to the district court, we granted Moore's motion to expand his certificate of appealability to raise this issue. "Now that the equitable tolling issue has been fully briefed on appeal, we may not review the merits of the [certificate of appealability] expansion ruling." Smith v. Ratelle, 323 F.3d 813, 816 n. 4 (9th Cir. 2003).