Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Central District of California, Dean D. Pregerson, District Judge, Presiding.
Before SCHROEDER, Chief Judge, TROTT, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
James Shamburger, a California state prisoner, appeals the district court's dismissal of his 28 U.S.C. § 2254 petition on statute of limitations grounds. We have jurisdiction pursuant to 28 U.S.C. § 2253, review de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and reverse and remand.
Shamburger contends that his section 2254 petition is timely under Artuz v. Bennett, 531 U.S. 4, 9-10, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), and Dictado v.. Ducharme, 244 F.3d 724, 726 (9th Cir.2001)
Page 892.
(determining that a state petition is properly filed and acts to toll the limitations period when it is delivered and accepted by the court for filing). The district court's ruling which is the subject of this appeal preceded both decisions. Accordingly, as the government concedes, Shamburger's federal petition filed on December 9, 1999, is timely.
Because we reverse and remand based on Dictado, we do not consider Shamburger's other contentions that tolling is proper because he had state and federal petitions pending or that he is entitled to equitable tolling.
REVERSED and REMANDED.