David C. Smith v. W.A. Duncan, Warden

ORDER AND AMENDED OPINION

ORDER

The Opinion filed on December 19, 2001 and amended on May -20, 2002, should be replaced in its entirety with the attached opinion.

OPINION

AppellanL-Petitioner David C. Smith (“Smith”) appeals the district court’s grant of Appellee-Respondent W.A. Duncan’s (the “Government’s”) motion to dismiss Smith’s federal petition for habeas corpus as untimely. When ruling on the motion, the district court was faced with an incomplete record. The facts, as they were presented to the district court, are recounted in the “Background” section of this opinion.

We have jurisdiction pursuant to 28 U.S.C. § 2253 and review dismissals of habeas petitions de novo. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999). Because Smith’s petition is timely, we reverse the district court’s dismissal.

BACKGROUND

On July 30, 1996, Smith pled no contest to four counts of lewd conduct with a minor. Smith’s sentence was1 enhanced to a prison term of twenty-one years, based in part on a prior robbery conviction in 1980. Smith raised no issues in his direct appeal to the California Court of Appeal, which affirmed his conviction and sentence on December 9, 1997. Smith…