Tann v. Snyder

Full title: William TANN, Petitioner-Appellant, v. Dan SNYDER, Respondent-Appellee…

Court: United States Court of Appeals, Ninth Circuit

Date published: Nov 13, 2001

27 F. App'x 799 (9th Cir. 2001)

Opinion

27 Fed.Appx. 799 (9th Cir. 2001) William TANN, Petitioner-Appellant, v. Dan SNYDER, Respondent-Appellee. No. 00-35290. D.C. No. CV-99-05402-FDB. United States Court of Appeals, Ninth Circuit. November 13, 2001

Submitted November 5, 2001 ^*.

* The 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NOT FOR PUBLICATION.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)

State prisoner filed petition for writ of habeas corpus. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., dismissed petition, and petitioner appealed. The Court of Appeals held that petitioner's "deficient" state post-conviction petition tolled statutory period for filing for federal habeas relief.

Vacated and remanded.

Page 800.

Appeal from the United States District Court for the Western District of Washington Franklin D. Burgess, District Judge, Presiding.

Before KLEINFELD, McKEOWN and FISHER, 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 may be provided by 9th Cir. R. 36-3.

William Tann appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 petition as time barred. Tann seeks to challenge his state conviction for one count of first degree leading organized crime, two counts of second degree theft, four counts of first degree theft, and one count of tampering with a witness. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we vacate and remand.

We granted a certificate of appealability limited to the issue of whether the district court properly dismissed Tann's § 2254 petition as untimely. ¹ Relying on our opinion in Dictado v. Ducharme, 189 F.3d 889 (9th Cir.1999) (Dictado I ), the district court found that Tann's "deficient" state post-conviction petition did not toll the statute of limitations, and dismissed Tann's § 2254 petition as untimely. We have subsequently withdrawn Dictado I and issued a superseding opinion in Dictado v. Ducharme, 244 F.3d 724, 725 (9th Cir.2001) (Dictado II ). In light of Dictado II, Tann's § 2254 petition is timely.

1 To the extent that Tann argues other issues in his brief, we may not consider them because they fall outside the scope of the certificate of appealability. Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam), cert. denied, 529 U.S. 1009, 120 S.Ct. 1281, 146 L.Ed.2d 228 (2000).

Accordingly, the district court's order dismissing Tann's § 2254 petition is vacated and the case remanded for further proceedings.

VACATED and REMANDED.