295 F.3d 1024
Tony Eugene SAFFOLD, Petitioner-Appellant,
Thomas L. CAREY,* Respondent-Appellee.
United States Court of Appeals, Ninth Circuit.
Filed July 8, 2002.
THIS CASE HAS BEEN WITHDRAWN FROM THE BOUND VOLUME AT THE REQUEST OF THE COURT.
On Remand from the United States Supreme Court.
Before B. FLETCHER, CANBY, and O’SCANNLAIN, Circuit Judges.
The Supreme Court having vacated the opinion of this court, Saffold v. Newland, 250 F.3d 1262 (9th Cir.2001), and remanded, this case is remanded to the district court for further proceedings consistent with Carey v. Saffold (“Saffold II“), ___ U.S. ___, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002).
Specifically, we remand for an evidentiary hearing so that the district court may determine, in the first instance, whether Saffold filed his original habeas petition in the California Supreme Court “within a reasonable time after[he] knew, or with due diligence should have known, the facts underlying the claim as well as the legal basis of the claim.” In re Harris, 5 Cal.4th 813, 21 Cal.Rptr.2d 373, 855 P.2d 391, 398 n. 7 (Cal.1993). As the Supreme Court observed in Saffold II, “[i]f the California Supreme Court had clearly ruled that Saffold’s 4-month delay was `unreasonable,’ that would be the end of the matter.” Saffold II, ___ U.S. ___, at ___, 122 S.Ct. 2134, 2141, 153 L.Ed.2d 260, at ___. But the California Court did not make such a clear ruling. Id. We accordingly ask the district court to determine whether Saffold’s petition met the California standard set forth in Harris.
The panel retains jurisdiction over the case in the event of any further appeals.
Tom L. Carey is substituted for his predecessor, Anthony NewlandSee Fed. R.App. P. 43(c)(2).