
    UNITED STATES of America, Plaintiff—Appellee, v. Spencer Louis SAWYER, Defendan-Appellant.
    No. 02-17270.
    D.C. Nos. CV-02-2350-LKK/GGH, CR-97-0202-LKK/GGH.
    United States Court of Appeals, Ninth Circuit.
    Submitted Aug. 9, 2004.
    
    Decided Aug. 16, 2004.
    Joseph J. Wiseman, Sacramento, CA, for Petitioner-Appellant.
    Nancy L. Simpson, Patrick Hanly, Office of the U.S. Attorney, Sacramento, CA, for Respondent-Appellee.
    Before SCHROEDER, Chief Judge, RAWLINSON and CALLAHAN, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Spencer Sawyer, a federal prisoner, appeals the summary dismissal, as untimely and without merit, of his motion under 28 U.S.C. § 2255 to vacate the sentence imposed after his conviction for conspiracy, armed bank robbery, and use of a firearm. The government correctly concedes that the district court erred in dismissing the § 2255 motion as untimely without notice and an opportunity to respond. See Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir.2001). The government also correctly concedes that the district court erred in summarily dismissing as meritless Sawyer’s claim of juror misconduct, the only claim he now pursues. See 28 U.S.C. § 2255 (summary dismissal appropriate only if motion and files and records of case conclusively show that prisoner is entitled to no relief); United States v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir.2000).

VACATED and REMANDED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     