Tyrone Swain v. Larry Small , 455 F. App'x 759 ( 2011 )

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NOT FOR PUBLICATION OCT 27 2011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