Ralphael Hernandez v. MICHAEL F. MARTEL, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RALPHAEL HERNANDEZ,
Petitioner - Appellant,
v.
MICHAEL F. MARTEL,* Warden,
Respondent - Appellee.
No. 10-56616
D.C. No. 5:10-cv-01117-DOC
MEMORANDUM**
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted July 22, 2014***
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
California state prisoner Ralphael Hernandez appeals from the district
court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We
FILED
JUL 29 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Michael F.
Martel is substituted for his predecessor, Leland McEwen, as Warden.
** 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).

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have jurisdiction under 28 U.S.C. § 2253, and we vacate and remand.
Hernandez contends that he timely filed his habeas petition because he is
entitled to statutory tolling. The Warden has filed a letter indicating that he does
not oppose Hernandez’s requested relief of returning the matter to the district
court. Having reviewed the record, we agree that Hernandez’s section 2254 habeas
petition was timely. We vacate the judgment of the district court and remand for
consideration of Hernandez’s claims on the merits.
VACATED and REMANDED.
10-56616 2

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