                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 10 2011

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




                            FOR THE NINTH CIRCUIT



ALFRED VILLANEDA,                                 No. 08-56923

              Petitioner - Appellant,             D.C. No. 5:08-cv-00824-SVW-AN

  v.
                                                  MEMORANDUM *
JAMES E. TILTON, Director of the
California Department of Corrections,

              Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                       Argued and Submitted April 14, 2011
                               Pasadena, California

Before: WARDLAW, BYBEE, and M. SMITH, Circuit Judges.

       Alfred Villaneda appeals the district court’s dismissal of his habeas petition

as time-barred under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2244(d)(1). We granted a certificate of appealability



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(“COA”) as to whether the district court erred in dismissing the petition as time-

barred, including whether Villaneda’s judgment became final based on the date of

his resentencing. Because the parties agree that the district court erred in

calculating the statute of limitations, we reverse and remand.

      The government concedes on appeal that Villaneda’s judgment did not

become final until October 10, 2006, sixty days after his resentencing and the entry

of the amended judgment. See Cal. Penal Code § 1237(a); Cal. R. Ct. 8.308;

Burton v. Stewart, 549 U.S. 147, 156 (2007) (the AEDPA limitations period does

“not begin until both [the] conviction and sentence ‘became final’”). Because the

limitations period was tolled by Villaneda’s pending state habeas proceedings, 28

U.S.C. § 2244(d)(2), his June 19, 2008 federal petition was timely by one day

under AEDPA’s one-year statute of limitations.

      Villaneda requests that we expand the COA to include five additional

claims. The government earlier did not object at least as to four of those claims,1

but now cites intervening Supreme Court authority to contest the expansion. We




      1
        The government’s objection to Villaneda’s fifth claim that it was not
exhausted lacks merit, as it was raised in his habeas petition before the California
Supreme Court.

                                           2
remand the petition without prejudice so that Villaneda’s additional claims may be

considered in the first instance by the district court.

      REVERSED and REMANDED.




                                            3
