Waldron-Ramsey

MEMORANDUM **

Washington state prisoner Waldo E. Waldron-Ramsey appeals from the district court’s judgment denying his 28 U.S.C. § 2254 petition challenging his conviction by a jury for first degree murder. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we vacate and remand.

In the wake of intervening authority, the government argues that Waldron-Ramsey’s § 2254 petition is untimely, and that the district court should not have addressed the merits of any claim. The government contends that the state post-conviction relief petition at issue did not toll the limitations period for the federal habeas petition, because the state post-conviction relief petition was determined to be untimely and was therefore not properly filed. See 28 U.S.C. § 2244 (d)(2); Pace v. DiGuglielmo, 544 U.S. 408 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005). We agree. See Bonner v. Carey, 425 F.3d 1145, 1146 (9th Cir.2005). Waldron-Ramsey is not entitled statutory tolling.

This does not end the inquiry, however. The district court did not have the benefit of Lott v. Mueller, 304 F.3d 918, 924-25 (9th Cir.2002), at the time that it made its ruling regarding equitable tolling, and consequently it did…