Phenix v. Schomig, No. 06-17128 (9th Cir. 2010)
Annotate this Case
Download PDF
FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 04 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT RAYMOND GENE PHENIX, Petitioner - Appellant, No. 06-17128 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 2 06-17128 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. 3 06-17128
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
