                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 04 2010

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




                            FOR THE NINTH CIRCUIT



RAYMOND GENE PHENIX,                             No. 06-17128

               Petitioner - Appellant,           D.C. No. CV-03-00485-RCJ

  v.
                                                 MEMORANDUM *
JAMES SCHOMIG,

               Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                          Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Nevada state prisoner Raymond Gene Phenix appeals pro se from the district

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

have jurisdiction under 28 U.S.C. § 2253, and we reverse and remand.

       Phenix contends that he is entitled to equitable tolling because his 2004

          *
             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).
federal habeas petition, which became time-barred under Pace v. DiGuglielmo, 544

U.S. 408 (2005), was timely under circuit law in effect when the petition was filed.

See Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001), overruled by

Pace, 544 U.S. at 417. Phenix is entitled to equitable tolling under this court’s

decision in Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008).

      Like the petitioner in Harris, Phenix filed his federal habeas petition in

reliance on Dictado, and before the Supreme Court decided Pace. Phenix

diligently pursued his rights by filing numerous petitions for state post-conviction

relief “while ensuring that enough time would remain to file a federal habeas

petition under the then-existing Dictado rule.” Id. at 1055-56. Extraordinary

circumstances over which Phenix had no control – the Supreme Court’s decision in

Pace – made it impossible for Phenix to timely file his petition. Id. at 1056.

Accordingly, he is entitled to equitable tolling and his 2004 federal habeas petition

is timely. See id. at 1057 (“Equitable principles dictate that we toll AEDPA’s

statute of limitations in the rare case where a petitioner relies on our legally

erroneous holding in determining when to file a federal habeas petition.”).

      Because we find that Phenix’s petition is timely under Harris, we decline to

reach the other certified issue.

      We construe Phenix’s additional arguments as a motion to expand the


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certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per

curiam). His motion to expand the certificate of appealibility is also denied. See

id.

      Last, Phenix’s motion to enlarge index of authorities is denied.

      REVERSED and REMANDED.




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