Donny E. MAXWELL, Petitioner-Appellant, v. M.C. KRAMER; Attorney General, Respondents-Appellees, 368 F. App'x 791

MEMORANDUM California state prisoner Donny E. Maxwell appeals from the district court’s order dismissing his 28 U.S.C. § 2254 habeas petition as untimely, and we vacate and remand. On appeal, respondents concede that Maxwell’s petition was timely. From the record, it is apparent that Maxwell was entitled to tolling between June 5, 2006, and February 7, 2007, while his state habe-as petitions were pending. See 28 U.S.C. § 2244(d)(2); see also Evans v. Chavis, 546 U.S. 189, 191, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006). Accordingly, his petition was timely.

We vacate the dismissal and remand to the district court for consideration of the merits of Maxwell’s petition. Maxwell’s request to strike the supplemental excerpts of record is denied as moot. VACATED AND REMANDED. This disposition is not appropriate for publication and except as provided by 9th Cir. R. 36-3.