Carl Race v. James Salmonsen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARL SIDNEY RACE, No. 23-35439

Petitioner-Appellant, D.C. No. 1:23-cv-00007- v. SPW-TJC

JAMES SALMONSEN,

OPINION

Respondent-Appellee.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Argued and Submitted November 22, 2024 Seattle, Washington

Filed March 13, 2025

Before: Ronald M. Gould, Kenneth K. Lee, and Holly A. Thomas, Circuit Judges.

Opinion by Judge H.A. Thomas; Dissent by Judge Lee SUMMARY *

Habeas Corpus

The panel vacated the district court’s order dismissing sua sponte Carl Race’s pro se 2023 habeas corpus petition seeking to set aside his 1996 conviction, and remanded. The district court dismissed the petition as time-barred without prior notice and an opportunity to be heard. The district court observed that, under Habeas Rule 4, it should assess whether it plainly appears from the petition and any attached exhibits that the prisoner is not entitled to relief. The district court also cited the Advisory Committee Note on Rule 4,…