Adrian Melgoza v. RICHARD KIRKLAND, Associate Warden

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).
AH/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIAN MELGOZA,
Petitioner - Appellant,
v.
RICHARD KIRKLAND, Associate
Warden,
Respondent - Appellee.
No. 08-16837
D.C. No. 5:06-cv-04861-JW
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Submitted March 16, 2010**
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
California state prisoner Adrian Melgoza appeals from the district court’s
dismissal of his 28 U.S.C. § 2254 habeas petition as untimely filed. We have
jurisdiction pursuant to 28 U.S.C. § 2253, and we reverse and remand.
FILED
MAR 26 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

AH/Research 08-16837
Melgoza contends that the district court wrongly calculated the due date of
his habeas petition, and that, contrary to the district court’s holding, his habeas
petition was timely filed. As the State commendably acknowledges on appeal, the
district court failed to apply the prisoner mailbox rule, and therefore wrongly
calculated the length of the equitable tolling period. Melgoza is entitled to
additional tolling under the prisoner mailbox rule. See Ramirez v. Yates, 571 F.3d
993, 996 n.1 (9th Cir. 2009) (internal quotations and citations omitted). Thus,
when Melgoza delivered his habeas petition to prison officials on August 8, 2006,
it was timely when the tolling acknowledged by the State is taken into
consideration. See Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002). Because
Melgoza’s federal habeas petition is timely, we reverse the district court’s
judgment dismissing Melgoza’s petition, and remand for further proceedings.
The appointment of counsel shall continue on remand to the district court.
Melgoza’s motion for judicial notice is granted.
Melgoza’s motions for summary reversal and immediate issuance of the
mandate are denied as moot.
REVERSED AND REMANDED.

-- 2 of 2 --