Donny E. Maxwell v. M. C. Kramer; Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
EOH/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNY E. MAXWELL,
Petitioner - Appellant,
v.
M. C. KRAMER; ATTORNEY
GENERAL,
Respondents - Appellees.
No. 08-15831
D.C. No. 1:07-CV-00548-OWW
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
FILED
MAR 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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EOH/Research 08-15831 2
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 (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.
VACATED AND REMANDED.

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