Carl Otis Sullivan v. NEVINS, Warden; ATTORNEY GENERAL FOR THE STATE OF NEVADA

*This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**The Honorable Rebecca R. Pallmeyer, United States District Judge for the
Northern District of Illinois, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARL OTIS SULLIVAN,
Petitioner - Appellant,
v.
NEVINS, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents - Appellees.
No. 09-16489
D.C. No. 2:05-cv-00448-RCJ-RJJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted June 14, 2010
San Francisco, California
Before: RYMER and FISHER, Circuit Judges, and PALLMEYER, District
Judge.**
FILED
JUL 21 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Petitioner Carl Otis Sullivan, a Nevada state prisoner serving consecutive
sentences for robbery and related crimes, appeals the district court’s judgment
dismissing his petition for habeas relief as untimely. We vacate and remand.
Sullivan’s federal habeas petition was timely filed because the time during
which his state habeas petition was pending is equitably tolled under Harris v.
Carter, 515 F.3d 1051, 1054-56 (9th Cir. 2008), and Townsend v. Knowles, 562
F.3d 1200, 1205-06 (9th Cir. 2009). First, although the district court has been
equivocal on this issue, we are satisfied by its initial finding that Sullivan was
diligent in pursuing his rights. The Nevada trial court committed several
procedural missteps in Sullivan’s case, prolonging the pendency of his state
proceedings. In an effort to mitigate these difficulties, the parties stipulated that
Sullivan’s state petition should be treated as timely and the state trial court agreed.
Though the Nevada Supreme Court ultimately held the stipulation to be invalid and
ruled that his state petition was untimely, Sullivan was not guilty of any oversight
or negligence in relying on the reasonable representations of both the state trial
court and the state’s stipulation. Throughout his state proceedings, Sullivan
continued to actively pursue his case and ultimately filed his federal petition within
one year of the termination of his state post-conviction review. Second, as in
Harris, Sullivan asserts that he relied on controlling Ninth Circuit precedent in

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Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001), in waiting to file his
federal habeas petition. We do not read Harris and Townsend as requiring more.
See Harris, 515 F.3d at 1054, 1055; Townsend, 562 F.3d at 1206. Sullivan has
therefore satisfied the requirements for equitable tolling.
VACATED and REMANDED.

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Sullivan v. Nevins
No. 09-16489
RYMER, Circuit Judge, concurring.
I join in the judgment.
FILED
JUL 21 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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