Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
D.C. No. CV-97-20401-JW
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Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding.
Before BOOCHEVER, LEAVY, and TASHIMA, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
California state prisoner Gilbert P. Vasquez appeals pro se the dismissal of his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we vacate and remand.
The sole issue before us is whether the habeas petition was timely filed in the district court. We review de novo a dismissal for failure to meet the statute of limitations, while we accept the district court's underlying findings of fact unless clearly erroneous. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999).
Vasquez contends that he timely filed his petition by mailing it to the district court on April 17, 1997. He states that the district court clerk returned his papers on April 18 and that he resubmitted the petition, which was filed on April 30. The government disputes the content of the April 17th mailing, and contends that Vasquez failed to present to the district court the April 18th letter from the district court clerk.
The government contends that a habeas petition is not "filed" until it has actually been filed by the district court clerk, together with the fee or order granting in forma pauperis status. We have rejected such a limited construction of the term "filed" for habeas petitions. See Calderon v. United States District Court (Kelly), 163 F.3d 530, 539-40 (9th Cir.1998) (en banc), cert. denied, 119 S.Ct. 1377 (1999).
The district court properly ruled that a habeas petition initially filed on April 30, 1997 would not be timely under the AEDPA. See Miles, 187 F.3d at 1107. The district court, however, has not ruled on the parties' factual dispute regarding Vasquez's April 17, 1997 mailing. This may affect the statute of limitations analysis. See Faile v. Upjohn Co., 988 F.2d 985, 989 (9th Cir.1993) (requiring district court either to accept pro se prisoner's allegation of timely filing or to make a contrary factual finding), disapproved on other grounds, McDowell v. Calderon, 197 F.3d 1253, 1255 n. 4 (9th Cir.1999) (en banc) (per curiam). We therefore vacate the judgment of the district court and remand for further proceedings.
We express no opinion on the merits of the habeas petition. All pending motions are DENIED.
VACATED and REMANDED.