                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 17 2010

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




                            FOR THE NINTH CIRCUIT



REGINALD HANDY,                                  No. 07-56767

               Petitioner - Appellant,           D.C. No. CV-03-04204-ABC

  v.
                                                 MEMORANDUM *
G. J. GIURBINO,

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                  Audrey B. Collins, Chief District Judge, Presiding

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Reginald Handy appeals from the district court’s judgment dismissing his 28

U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 28

U.S.C. § 2253, and we reverse.

          *
             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).
      Handy contends that he was entitled under 28 U.S.C. § 2244(d)(2) to

statutory tolling of the period between the California Court of Appeal’s denial of

his state habeas petition and his filing of a state habeas petition in the California

Supreme Court. Because Handy provided no explanation in his state petition for

the seven-month delay, as is required under California law, he is not entitled to

statutory tolling. See Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per

curiam); see also Waldrip v. Hall, 548 F.3d 729, 734-35 (9th Cir. 2008).

      Handy further contends that he is entitled to equitable tolling based on his

reasonable reliance on Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir.

2001), overturned by Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). This

contention has merit. The record establishes that Handy pursued his rights

diligently; had Pace not overturned Dictado, Handy’s federal habeas petition

would have been timely. See Harris v. Carter, 515 F.3d 1051, 1055-56 (9th Cir.

2008) (holding, in a case decided after the district court’s judgment denying

Handy’s petition, that equitable tolling applied under these circumstances); see

also Townsend v. Knowles, 562 F.3d 1200, 1205-06 (9th Cir. 2009). Although the

Government contends that Handy did not raise this argument in the district court,

the record indicates that Handy sufficiently raised the issue in his traverse. Thus,

Handy is entitled to equitable tolling of the one-year statute of limitations.


                                            2                                     07-56767
      Because Handy is entitled to equitable tolling under Harris, we do not

address his additional contentions related to equitable tolling. We reverse the

judgment of the district court dismissing Handy’s petition and remand for further

proceedings consistent with this decision.

      REVERSED and REMANDED.




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