Boscaino

MEMORANDUM **

Ronald E. Boscaino appeals the district court’s order dismissing as untimely his 28 U. S.C. § 2254 petition challenging his convictions for first-degree murder, attempted murder, kidnapping for robbery, first and second degree robbery, first degree burglary, and grand theft auto. 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.

Boscaino contends that the district court erroneously concluded that he was not entitled to statutory tolling for the thirteen-month period between the Los Angeles County Superior Court’s denial of his habeas petition and the filing of another habeas petition in the California Court of Appeal. This argument may have merit. First, the California Court of Appeal’s citation to a section of In re Clark (1993) 5 Cal.4th 750, 769 , 21 Cal.Rptr.2d 509 , 855 P.2d 729 , addressing successive petitions, did not signify that Boscaino failed to justify substantial defy in presenting his claims. Moreover, at the time of its order, the district court did not have the benefit of our decision in Saffold v. Carey, 312 F.3d 1031, 1035-36 (9th Cir.2002),…