Sylvester v. Garcia

U.S. Court of Appeals for the Ninth Circuit November 14, 2003

Sylvester v. Garcia, 81 F. App'x 208 (9th Cir. 2003)

Opinion of the Court

MEMORANDUM**

California state prisoner Jim Otis Sylvester appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253. We remand.

*209Sylvester contends, and the government concedes, that the district court erred by dismissing his federal habeas petition as untimely because he is entitled to statutory tolling for the entire time that his state habeas petitions to the California Court of Appeal and California Supreme Court were pending, including the 22-month interval between those petitions. We remand to the district court to reconsider timeliness in light of Saffold v. Carey, 312 F.3d 1031, 1035 (9th Cir. 2002), cert. denied, — U.S. —, 123 S.Ct. 2578, 156 L.Ed.2d 604 (2003).

REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Reference

Full Case Name: Jim Otis SYLVESTER v. Shiela GARCIA, Acting Warden
Status: Published