                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 05 2011

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




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30213

               Plaintiff - Appellee,             D.C. No. 3:06-cr-00067-EJL

  v.
                                                 MEMORANDUM *
CAMERON SCOTT GRIFFIN,

               Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

       Cameron Scott Griffin appeals pro se from the district court’s order denying

his petition for a writ of mandamus and motion for a hearing pursuant to Kastigar

v. United States, 406 U.S. 441 (1972). We have jurisdiction under 28 U.S.C.

§ 1291, and we vacate and remand to the district court.

          *
             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).
          Griffin filed his petition and motion after this court affirmed his jury-trial

conviction for conspiracy to possess with intent to distribute methamphetamine

and distribution of methamphetamine. The district court could have construed

Griffin’s petition and motion as a 28 U.S.C. § 2255 petition, as long as it complied

with certain procedural safeguards. See United States v. Seesing, 234 F.3d 456,

464 (9th Cir. 2000). Instead, the court denied the petition and motion on the

merits.

      “In general, § 2255 provides the exclusive procedural mechanism by which

a federal prisoner may test the legality of detention.” Lorentsen v. Hood, 223 F.3d

950, 953 (9th Cir. 2000). The availability of this remedy precludes mandamus

review. See Pescosolido v. Block, 765 F.2d 827, 829 (9th Cir. 1985). Because

Griffin could have sought relief by way of a section 2255 petition, the district court

lacked jurisdiction to adjudicate the merits of Griffin’s petition and motion. We

accordingly vacate sections II and III of its order and remand.

      We are aware that, after this appeal was filed, Griffin filed an apparently

timely section 2255 petition, which the district court dismissed on the ground that

an appeal from the district court’s denial of the petition and motion was pending in

this court. On remand, the district court may construe the instant petition and

motion as a section 2255 petition if it informs Griffin of the potential adverse


                                              2                                     10-30213
consequences of such a recharacterization, and gives him the opportunity to

withdraw the petition and motion. See Seesing, 234 F.3d at 464. If Griffin chooses

to withdraw his petition and motion and to file a new section 2255 petition, that

petition would fall outside the one-year statute of limitations period. In that event,

the district court should consider the availability of any equitable tolling to which

Griffin may be entitled.

      VACATED and REMANDED.




                                           3                                    10-30213
