Moore
Moore v. Helling
Opinion
lead Opinion
MEMORANDUM *
Ryan Moore is ineligible for statutory tolling of his federal habeas petition during the time his state habeas petition was pending before the Nevada Supreme Court. The Nevada Supreme Court held that Moore’s state petition was untimely, and therefore the petition was not “properly filed” as required by 28 U.S.C. § 2244 (d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 417 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005).
Moore is entitled to equitable tolling of the one-year statute of limitations under § 2244(d)(2) because his state habeas petition would have been “properly filed” under our decision in Dictado v. Ducharme, 244 F.3d 724 (9th Cir.2001). 1 See Harris v. Carter, 515 F.3d 1051, 1057 (9th Cir.2008). Moore relied on this court’s decision in Dictado , and his federal petition became untimely when Dictado was overruled by the United States Supreme Court in Pace. Id. Moreover, the record establishes that Moore pursued his rights diligently. Therefore, Moore is entitled to equitable tolling of the one-year statute of limitations. Accordingly, we reverse the judgment of the district court dismissing Moore’s federal habeas petition as time-barred.