                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 05 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TRAVON EDWARD CLARDY,                             No. 07-55825

              Petitioner - Appellant,             D.C. No. CV-06-03048-JSL

  v.
                                                  MEMORANDUM *
MARK CASTELLAW, Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                     J. Spencer Letts, District Judge, Presiding

                      Argued and Submitted December 7, 2009
                               Pasadena, California

Before: PREGERSON and PAEZ, Circuit Judges, and MAHAN, ** District Judge.

       Travon Clardy, a California state prisoner, appeals the district court’s

dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely. We have

jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo whether the statute


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
of limitations should be tolled. Townsend v. Knowles, 562 F.3d 1200, 1204 (9th

Cir. 2009). We reverse.

      The facts are known to the parties, and we state them here only as necessary

to explain our disposition. The California Supreme Court held that Clardy’s state

habeas petition was untimely. Therefore Clardy’s petition was not “properly filed”

as required by 28 U.S.C. § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408,

417 (2005). As a result, Clardy is ineligible for statutory tolling of the statute of

limitations for his federal habeas petition during the time his state habeas petition

was pending before the California Supreme Court. Id.

      Clardy argues that he is entitled to equitable tolling based on his reasonable

reliance on Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001),

overturned by Pace.1 We agree. The record establishes that Clardy pursued his

rights diligently; had Pace not overturned Dictado, Clardy’s federal habeas petition

would have been timely. Therefore, Clardy is entitled to equitable tolling of the

one-year statute of limitations. See Harris v. Carter, 515 F.3d 1051, 1055-56 (9th

Cir. 2008). Accordingly, we reverse the judgment of the district court dismissing

Clardy’s federal habeas petition as time-barred.

      REVERSED AND REMANDED.

      1
       Although Clardy did not raise this issue to the district court, we granted
Clardy’s motion to expand his certificate of appealability to encompass this issue
pursuant to 9th Cir. R. 22-1(e).
