                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 27 2011

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




                            FOR THE NINTH CIRCUIT



TYRONE F. SWAIN, a.k.a. Tyrone                   No. 09-55342
Franklin Swain,
                                                 D.C. No. 2:08-cv-04186-GAF
               Petitioner - Appellant,

  v.                                             MEMORANDUM *

LARRY SMALL,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                            Submitted October 25, 2011 **

Before:        TROTT, GOULD, and RAWLINSON, Circuit Judges.

       California state prisoner Tyrone F. Swain appeals from the district court’s

judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have

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


          *
             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).
      Swain contends the district court erred by dismissing the majority of the

claims in his habeas petition as time-barred under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). The state concedes the petition was

timely. Because we agree the petition was timely, we reverse and remand for the

district court to consider on the merits those claims dismissed as untimely. See

Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (per curiam) (the AEDPA

limitations period begins to run when the conviction and sentence become final).

      Swain also argues that his conviction violated the Double Jeopardy Clause.

In light of the remand, we decline to expand the certificate of appealability

(“COA”) to reach this issue. The denial is without prejudice to Swain’s right to

move for a COA as to this claim in any future appeal. See 9th Cir. R. 22-1(e).

      REVERSED and REMANDED.




                                          2                                     09-55342
