NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 20 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN CUELLAR, No. 14-55005

Petitioner-Appellant, D.C. No. 2:12-cv-06036-JFW-FFM

v.

MEMORANDUM*

J. SOTO, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Submitted August 17, 2021**

Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

Steven Cuellar appeals from the district court’s order dismissing his 28

U.S.C. § 2254 habeas corpus petition as untimely. We have jurisdiction under 28

U.S.C. § 2253. We review de novo, Stancle v. Clay, 692 F.3d 948, 952-53 (9th

Cir. 2012), and we reverse.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). In relevant part, the district court concluded that Cuellar was not entitled to

statutory tolling for any period after the superior court denied his second habeas

petition because his third habeas petition, filed approximately three months later in

the California Supreme Court, was untimely. After the district court’s order, and

in response to a certified question posed by this court, the California Supreme

Court decided Robinson v. Lewis, 9 Cal. 5th 883, 901 (2020), which announced a

120-day “safe harbor” for gap tolling between California habeas petitions. Under

Robinson, as the parties agree, Cuellar is entitled to statutory tolling from his

second petition’s filing until his third petition’s denial. See 28 U.S.C.

§ 2244(d)(2); Evans v. Chavis, 546 U.S. 189, 192-93 (2006). With the benefit of

this tolling period, together with the time the limitations period was tolled while

Cuellar’s first habeas petition was pending, Cuellar’s § 2254 petition filed on

February 11, 2013, was timely.

We further hold that the district court erred in treating Cuellar’s pro se

§ 2254 petition filed in February 2013 as an amended pleading that wholly

superseded the first petition. “A document filed pro se is to be liberally construed,

and a pro se complaint, however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d

886, 889-90 (9th Cir. 2008) (internal quotation marks omitted). Cuellar’s filings,

including his letters requesting the opportunity to exhaust additional claims and his

2 14-55005 labeling his second petition “supplemental grounds,” indicated his intention to

supplement his initial petition rather than supersede it. Accordingly, the district

court is instructed to review the merits of the claims raised in Cuellar’s original

§ 2254 petition and supplemental § 2254 petition.

REVERSED and REMANDED.

3 14-55005