Walker v. Roe

ORDER We deny petitioner Walker’s motion to withdraw the memorandum disposition filed July 10, 2006. The court’s order in Gaston v. Palmer, 447 F.3d 1165 (9th Cir. 2006), amended its opinion at 417 F.3d 1030 (9th Cir.2005) and is binding on us. See Overstreet v. United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 409 F.3d 1199 , 1205 n. 8 (9th Cir.2005). We also note the mandate has now issued in Gaston,. Walker speculates that further action on Gaston may be taken by the Supreme Court, but we decline to withdraw our disposition on that basis. We will and hereby do recall the mandate in this case for a different purpose, to amend the memorandum disposition. The memorandum disposition is amended to change the first two sentences of the second paragraph to: ‘Walker challenges his 1998 State of California conviction for first-degree burglary and possession of cocaine, which conviction became final on July 14, 1998. Absent tolling, under 28 U.S.C. § 2244 (d)(1)(A) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Walker had until July 14,1999, to file his § 2254 petition.” With these amendments, the mandate shall issue forthwith. The electronic docket has been updated to show the correct filing date of the memorandum disposition as July 10, 2006. Walker’s counsel’s motion to withdraw is hereby granted.