McCoy

MEMORANDUM **

California state prisoner Davon Elimu McCoy appeals pro se the district court’s *496 dismissal of his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We review de novo a district court’s denial of a habeas petition, Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.2001), and we reverse and remand.

McCoy’s conviction became final on December 3, 1997, so his federal habeas petition filed on July 12, 1999 is untimely absent tolling of the AEDPA statute of limitations. McCoy contends that the district court erred by not granting him statutory tolling under 28 U.S.C. § 2244 (d)(1)(B). He also contends that he is entitled to equitable tolling based on his claim that he did not receive notice that the California Supreme Court had rejected his petition for review as untimely until five months after he submitted it to authorities for filing.

McCoy is entitled to statutory tolling while he is properly pursuing state habeas relief, see Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir.1999), and as a pro se prisoner, his petition is deemed constructively filed at the moment it is delivered to prison officials to be forwarded to the…