                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 29 2014

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


RALPHAEL HERNANDEZ,                              No. 10-56616

                Petitioner - Appellant,          D.C. No. 5:10-cv-01117-DOC

  v.
                                                 MEMORANDUM**
MICHAEL F. MARTEL,* Warden,

                Respondent - Appellee.


                     Appeal from the United States District Court
                        for the Central District of California
                      David O. Carter, District Judge, Presiding

                              Submitted July 22, 2014***

Before:         GOODWIN, CANBY, and CALLAHAN, Circuit Judges.

       California state prisoner Ralphael Hernandez appeals from the district

court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We


          *
             Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Michael F.
Martel is substituted for his predecessor, Leland McEwen, as Warden.
          **
             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).
have jurisdiction under 28 U.S.C. § 2253, and we vacate and remand.

      Hernandez contends that he timely filed his habeas petition because he is

entitled to statutory tolling. The Warden has filed a letter indicating that he does

not oppose Hernandez’s requested relief of returning the matter to the district

court. Having reviewed the record, we agree that Hernandez’s section 2254 habeas

petition was timely. We vacate the judgment of the district court and remand for

consideration of Hernandez’s claims on the merits.

      VACATED and REMANDED.




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