Cowan
Cowan v. Clarke
Opinion
Lead Opinion
MEMORANDUM **
David William Cowan appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition challenging his California first-degree murder conviction. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We review de novo, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we vacate and remand.
Cowan contends that the district court erred by dismissing his petition as untimely because he was entitled to equitable tolling. The district court correctly determined that Cowan was not entitled to equitable tolling as a result of his counsel’s allegedly incorrect advice. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.), cert. denied, — U.S. -, 122 S.Ct. 1913 , 152 L.Ed.2d 823 (2002). However, our review of the record indicates that the district court, not having the benefit of our decision in Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir.2001) (concluding that for statutory tolling purposes the California Supreme Court’s denial of a habeas petition is not final for 30 days), incorrectly determined that Cowan’s federal petition was untimely unless equitable tolling further extended his one-year limitation period.