Opinion
No. 10-35666 D.C. No. 9:09-CV-00177-DWM-JCL
05-10-2012
STEVEN RAY RITCHIE, Petitioner - Appellant, v. MIKE FERRITER; ATTORNEY GENERAL FOR THE STATE OF MONTANA, Esquire, Respondents - Appellees.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted April 10, 2012
Seattle, Washington
Before: D.W. NELSON, TASHIMA, and CALLAHAN, Circuit Judges
Petitioner Steven Ritchie appeals the dismissal of his federal habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We affirm in part, and vacate and remand in part.
Assuming without deciding that Ritchie's application for sentence review could toll the statute of limitations, that his application was properly filed, and thus that the statute of limitations was tolled during the pendency of his sentence review application, nevertheless Ritchie's federal habeas petition still would be time-barred without the benefit of equitable tolling. We therefore need not consider separately whether statutory tolling is available pursuant to Wall v. Kohli, 131 S.Ct. 1278 (2011).
The district court concluded that equitable tolling did not apply before our decision in Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010). We remand for consideration of equitable tolling pursuant to the heavily fact-dependent Bills standard, id. at 1100-01, expressing no view as to whether such tolling is warranted in this case. The district court shall hold an evidentiary hearing, if necessary, to determine whether equitable tolling applies.
Each party shall bear their own costs.
AFFIRMED in part; VACATED and REMANDED in part.