Opinion
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Inmate filed habeas petition, and the United States District Court for the Central District of California Manuel L. Real, J., dismissed petition as untimely. The Court of Appeals held that one-year limitation period under the Antiterrorism and Effective Death Penalty Act was equitably tolled because petitioner was not given an opportunity to abandon his unexhausted claims.
Vacated and remanded.
Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding.
Before O'SCANNLAIN, and PAEZ, Circuit Judges, and KING, District Judge.
The Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as may be provided by Ninth Circuit Rule 36-3.
Martin Earl Dawson appeals the district court's dismissal of his 28 U.S.C. § 2254 petition as untimely under 28 U.S.C. § 2244(d). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review the district court's dismissal de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and vacate and remand.
Dawson contends that his § 2254 petition was timely filed because the Antiterrorism and Effective Death Penalty Act's one-year limitation period was equitably tolled while a prior § 2254 petition was pending. This contention has merit.
The one-year statute of limitations began to run on July 14, 1998. See 28 U.S.C. § 2244(d)(1); Miles, 187 F.3d at 1105. On July 13, 1999, Dawson filed a timely but mixed § 2254 petition. On December 22, 1999, well after the one-year limitations period had expired, the district court dismissed the petition without prejudice to
Peterson v. Lampert, 277 F.3d 1073, 2002 WL 27602, at *6 (9th Cir. Jan.11, 2002) (holding that citation of state law cases in which federal law is applied to a state law claim does not fairly present a federal claim to a state supreme court) does not apply here because Dawson's petition for review on direct appeal to the California Supreme Court clearly identified the federal nature of a claim and did not rely only on citing a state court case.
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refiling after exhausting all his claims before the California Supreme Court. The district court did not advise Dawson of the right to proceed only on the exhausted claims, and denied his motion to hold federal proceedings in abeyance while he exhausted the claims.
The district court dismissed as time-barred Dawson's subsequent § 2254 petition, filed within three weeks after the California Supreme Court denied his state petition. See Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir.2001) (holding that AEDPA's limitations period begins to run 30 days after the California Supreme Court denies a state habeas petition). Dawson was not entitled to statutory tolling for the time during which his first federal habeas petition was pending. Duncan v. Walker, 531 U.S. 167, 121 S.Ct. 2120, 2129, 150 L.Ed.2d 251 (2001). However, we recently held that the one-year limitation period should be equitably tolled where the district court dismisses a prior federal habeas petition without giving the petitioner the opportunity to abandon unexhausted claims as an alternative to suffering dismissal. Tillema v. Long, 253 F.3d 494, 503-04 (9th Cir.2001); see also James v. Pliler, 269 F.3d 1124, 1125 (9th Cir.2001) (finding equitable tolling where court failed to notify petitioner of option to dismiss unexhausted claims, and indicating that court has discretion to stay federal proceedings while petitioner attempts to exhaust claims in state court). Because Dawson was not given an opportunity to abandon his unexhausted claims, and his petition would be timely if given the benefit of equitable tolling as set forth in Tillema, we vacate and remand for further proceedings consistent with this opinion.
VACATED and REMANDED.