Bustamante

MEMORANDUM **

Jesus Bustamante, a California state prisoner, appeals the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction under 28 U.S.C. § 2258 , and we vacate and remand.

Bustamante contends that he is entitled to equitable tolling of the Antiterrorism and Effective Death Penalty Act’s (“AED-PA”) one-year limitations period because his attorney failed to deliver his file to him until after his deadline expired. It is undisputed that Bustamante did not receive his records until approximately three years after his first request for the records, two years after his AEDPA deadline, despite repeated requests to counsel for the records by his mother, his brother, and him. Therefore, the district court correctly concluded that Bustamante is entitled to equitable tolling. See United States v. Battles, 862 F.3d 1195, 1197-99 (9th Cir. 2004); see also Spitsyn v. Moore, 345 F.3d 796, 800-01 (9th Cir.2003) (reversing and remanding upon concluding attorney’s actions may justify equitable tolling where attorney was hired nearly a full year in advance of deadline but completely failed to prepare and to file a petition, and was contacted by…