Charles Roger Jorss v. James H. Gomez, Director
Opinion
Opinion
311 F.3d 1189 Charles Roger JORSS, Petitioner-Appellant, v. James H. GOMEZ, Director, Respondent-Appellee. No. 99-16986. United States Court of Appeals, Ninth Circuit. Submitted * February 16, 2001. Filed December 4, 2002. Charles Roger Jorss, Pro Se, Ione, CA, for the petitioner-appellant. Ross C. Moody, Deputy Attorney General, Office of the Attorney General of the State of California, San Francisco, CA, for the respondent-appellee. Appeal from the United States District Court for the Northern District of California, Ronald M. Whyte, District Judge, Presiding. D.C. No. CV-97-20728-RMW. Before SCHROEDER, Chief Judge, WALLACE and TALLMAN, Circuit Judges. 1 Opinion by Judge TALLMAN; Concurrence by Judge WALLACE. ORDER 2 Our opinion filed on September 4, 2001, is hereby withdrawn. A new opinion, and a separate concurrence by Judge Wallace, are filed simultaneously herewith. 3 The petition for rehearing and for rehearing en banc is denied without prejudice as moot. 4 TALLMAN, Circuit Judge. OPINION 5 Charles Roger Jorss, a California state prisoner, appeals pro se the district court's dismissal of his habeas petition as time-barred under 28 U.S.C. § 2244 (d). The district court…
Lead Opinion
Tallman, J.
Opinion by Judge TALLMAN; Concurrence by Judge WALLACE.
ORDER
Our opinion filed on September 4, 2001, is hereby withdrawn. A new opinion, and a separate concurrence by Judge Wallace, are filed simultaneously herewith.
*1191 The petition for rehearing and for rehearing en bane is denied without prejudice as moot.
OPINION
Charles Roger Jorss, a California state prisoner, appeals pro se the district court’s dismissal of his habeas petition as time-barred under 28 U.S.C. § 2244 (d). The district court granted a Certificate of Ap-pealability (“COA”) as to “whether equitable tolling applied” to Jorss’s petition. Because we find that a determination of timeliness under the statute is a necessary predicate to the question of whether equitable tolling should be applied, we hold, in light of our en banc decision in Allen v. Lewis, 295 F.3d 1046 (9th Cir.2002), that Jorss’s petition was timely filed. We therefore reverse the district court’s dismissal of Jorss’s petition and remand for consideration of his petition on the merits.
I
Jorss is serving a 188-year sentence for forcible sexual molestation imposed by the Santa Cruz County Superior Court on May 5, 1994. On September 27, 1995,…
Concurring Opinion
Wallace, J.
concurring:
I reluctantly concur with the majority that Jorss’ petition was equitably tolled and thus not time-barred as compelled by Tillema v. Long, 253 F.3d 494 (9th Cir.2001) (en banc). I disagree, however, with the majority’s conclusion that the issue of statutory tolling is necessarily contained within the issue of equitable tolling, the only issue presented by the certificate of appealability (COA). I also question the majority’s power to reach the issue of statutory tolling sua sponte.
The district court granted a COA on the issue of whether equitable tolling will save Jorss’ habeas corpus petition. A court of appeals may not reach issues not contained within the COA. Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam) (‘We hold that 28 U.S.C. § 2253 (c)(3) limits the issues that may be considered on appeal to those specified in a COA”), cert. denied, 529 U.S. 1009 , 120 S.Ct. 1281 , 146 L.Ed.2d 228 (2000); accord Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir.2002) (“Courts of Appeals lack jurisdiction to resolve the merits of any claim for which a COA is not granted”); United States v. Christakis, 238 F.3d 1164, 1168, n. 4 (9th Cir.2001).