Gould v. Hatcher

Full title: Cecil GOULD, Petitioner-Appellant, v. Sherman HATCHER, et al.…

Court: United States Court of Appeals, Ninth Circuit

Date published: Dec 19, 2001

24 F. App'x 792 (9th Cir. 2001)

Opinion

24 Fed.Appx. 792 (9th Cir. 2001) Cecil GOULD, Petitioner-Appellant, v. Sherman HATCHER, et al., Respondent-Appellee. No. 00-17130. D.C. No. CV-99-01120-PMP. United States Court of Appeals, Ninth Circuit. December 19, 2001

Submitted December 7, 2001. ^*

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

State prisoner filed habeas petition. The United States District Court for the District of Nevada, Philip M. Pro, J., dismissed petition, and appeal was taken. The Court of Appeals held that Antiterrorism and Effective Death Penalty Act (AEDPA) statute of limitations was tolled during pendency of state habeas petition, even though state petition was untimely.

Reversed.

Appeal from the United States District Court for the District of Nevada, Philip M. Pro, District Judge, Presiding.

Before KOZINSKI, RYMER, and SILVERMAN, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

AEDPA's statute of limitations is tolled while a "properly filed" state habeas petition is pending. 28 U.S.C. § 2244(d)(2). "[I]f a state's rule ... contains exceptions that require a state court to examine the merits of a petition before it is dismissed, the petition, even if untimely, should be regarded as 'properly filed.' " Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir.2001). We note that neither Dictado nor Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), had yet been decided when this case was in the district court.

Under Nevada law, state courts cannot dismiss a late petition as untimely if the petitioner demonstrates both that the delay wasn't his fault and "[t]hat dismissal ... will unduly prejudice [him]." Nev.Rev.Stat. 34.726(1). To determine whether a petitioner has made the latter showing, a court must examine the merits of each claim in the petition before dismissing it. Like the state statute at issue in Dictado, the Nevada statute of limitations "does

Page 793.

not impose an absolute bar to filing," and Gould's state habeas petition therefore was "properly filed." Dictado, 244 F.3d at 728 (quoting Smith v. Ward, 209 F.3d 383 (5th Cir.2000)). AEDPA's one-year period was tolled and Gould's federal petition was timely.

REVERSED.