                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 02 2010

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




                             FOR THE NINTH CIRCUIT



 DONNY E. MAXWELL,                               No. 08-15831

               Petitioner - Appellant,           D.C. No. 1:07-CV-00548-OWW

   v.
                                                 MEMORANDUM *
 M. C. KRAMER; ATTORNEY
 GENERAL,

               Respondents - Appellees.



                     Appeal from the United States District Court
                         for the Eastern District of California
                     Oliver W. Wanger, District Judge, Presiding

                            Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

EOH/Research
       California state prisoner Donny E. Maxwell appeals from the district court’s

order dismissing his 28 U.S.C. § 2254 habeas petition as untimely, and we vacate

and remand.

       On appeal, respondents concede that Maxwell’s petition was timely. From

the record, it is apparent that Maxwell was entitled to tolling between June 5, 2006,

and February 7, 2007, while his state habeas petitions were pending. See 28 U.S.C.

§ 2244(d)(2); see also Evans v. Chavis, 546 U.S. 189, 191 (2006). Accordingly,

his petition was timely. We vacate the dismissal and remand to the district court

for consideration of the merits of Maxwell’s petition. Maxwell’s request to strike

the supplemental excerpts of record is denied as moot.

       VACATED AND REMANDED.




EOH/Research                              2                                   08-15831
