Opinion
No. 08-15831.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed March 2, 2010.
Donny E. Maxwell, Represa, CA, pro se.
Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, District Judge, Presiding. D.C. No. 1:07-CV-00548-OWW.
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and except as provided by 9th Cir. R. 36-3.
California state prisoner Donny E. Maxwell appeals from the district court's order dismissing his 28 U.S.C. § 2254 habeas petition as untimely, and we vacate and remand.
On appeal, respondents concede that Maxwell's petition was timely. From the record, it is apparent that Maxwell was entitled to tolling between June 5, 2006, and February 7, 2007, while his state habeas petitions were pending. See 28 U.S.C. § 2244(d)(2); see also Evans v. Chavis, 546 U.S. 189, 191, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006). Accordingly, his petition was timely. We vacate the dismissal and remand to the district court for consideration of the merits of Maxwell's petition. Maxwell's request to strike the supplemental excerpts of record is denied as moot.