                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 21 2013

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




                            FOR THE NINTH CIRCUIT



CHRISTOPHER DALE SMITH,                          No. 11-57167

              Petitioner - Appellant,            D.C. No. 3:10-cv-02429-LAB-
                                                 CAB
  v.

LARRY SMALL, Warden; ATTORNEY                    MEMORANDUM *
GENERAL FOR THE STATE OF
CALIFORNIA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                        Argued and Submitted March 7, 2013
                               Pasadena, California

Before: WARDLAW and GOULD, Circuit Judges, and WOLF, Senior District
Judge.**

       Christopher Dale Smith appeals the district court’s dismissal of his petition

for habeas corpus as untimely filed under the Antiterrorism and Effective Death

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Mark L. Wolf, Senior District Judge for the U.S.
District Court for the District of Massachusetts, sitting by designation.
Penalty Act’s (AEDPA) one-year statute of limitations.1 We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we vacate and remand.

      The State concedes that Smith is entitled to statutory tolling for the periods

during which his petitions were pending before the California Superior Court and

the California Court of Appeal and for the interval between those petitions. See 28

U.S.C. § 2244(d)(2). At issue is the 85-day delay between the California Court of

Appeal’s denial of Smith’s petition and his subsequent filing of a petition in the

California Supreme Court. The district court concluded that this delay was

unreasonable, and as a result denied Smith statutory tolling for those 85-days,

making Smith’s federal petition untimely.

      We conclude to the contrary that Smith’s petition to the California Supreme

Court was filed within a “reasonable time.” See Evans v. Chavis, 546 U.S. 189,

198 (2006) (holding that if the state supreme court’s disposition does not state

whether the petition was timely or untimely, the federal court of appeals must

make that determination itself). The 85-day delay between Smith’s petitions to the

California Court of Appeal and to the California Supreme Court was longer than,


      1
        Because we reverse the district court’s ruling on timeliness, we do not
reach Smith’s claim that the district court abused its discretion under Pace v.
DiGuglielmo, 544 U.S. 408 (2005), when it dismissed his October 2009 federal
petition in case no. 09-cv-2208 BEN (NLS). Smith’s May 9, 2012, motion to
augment the record with that case is GRANTED.

                                          2
but close to, the 30–60 day delay the Supreme Court previously recognized as

reasonable under California’s habeas system. See id. at 201. Here, the California

Supreme Court did not indicate that Smith’s petition was untimely with an explicit

statement to that effect or with a customary citation to In re Robbins, 959 P.2d 311

(Cal. 1998). See Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007). Moreover,

Smith proceeded through the state habeas process without the benefit of counsel

and has explained that he had limited access to his legal files while in protective

custody. Given California’s rule that a state habeas petition can be filed within a

reasonable but indeterminate time, and the other circumstances noted above, 85

days was a reasonable time for Smith in this case to prepare and file his habeas

petition in the California Supreme Court. See Evans, 546 U.S. at 201.

      We hold that Smith is entitled to statutory tolling sufficient to render his

federal petition timely under AEDPA’s one-year statute of limitations. We

VACATE the district court’s order dismissing Smith’s petition as untimely and

REMAND the case to the district court to consider Smith’s petition on the merits.2

      VACATED and REMANDED




      2
          We express no view on the merits of Smith’s appeal.

                                           3
