Opinion
No. 12-15656 D.C. No. 5:10-cv-03900-EJD
07-16-2014
ZAMEER R. AZAM, Petitioner - Appellant, v. RICK HILL, Warden; et al., Respondents - Appellees.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted July 10, 2014
San Francisco, California
Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PIERSOL, Senior District Judge.
The Honorable Lawrence L. Piersol, Senior District Judge for the U.S. District Court for the District of South Dakota, sitting by designation.
We review a district court's dismissal of a habeas petition as untimely de novo, Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010), and its factual findings for clear error, Stancle v. Clay, 692 F.3d 948, 953 (9th Cir. 2012).
Notwithstanding the district court's incorrect application of Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983), in dismissing Azam's first federal habeas petition, see Henderson v. Johnson, 710 F.3d 872, 874 (9th Cir. 2013), Azam's second federal habeas petition cannot relate back to his first federal habeas petition. See Rasberry v. Garcia, 448 F.3d 1150, 1155 (9th Cir. 2006) ("[A] habeas petition filed after the district court dismisses a previous petition without prejudice for failure to exhaust state remedies cannot relate back to the original habeas petition."). Therefore, his second federal habeas petition was untimely. See 28 U.S.C. § 2244(d)(1).
Azam claims, and the Government agrees, that Azam's first federal habeas petition was a mixed petition with exhausted and unexhausted claims. Therefore, the district court's obligations under Henderson to "grant leave to amend" a mixed petition "and, if requested, . . . consider a petitioner's eligibility for a stay" apply to this case. 710 F.3d at 874.
Nevertheless, Azam is entitled to equitable tolling. See Butler v. Long, No. 10-55202, 2014 WL 1717009, at *3, — F.3d — (9th Cir. June 24, 2014). In dismissing Azam's first federal habeas petition, the district court failed to consider Azam's request for a stay and did not give Azam "the option to amend the mixed petition to remove the unexhausted claims." Id. Therefore, its dismissal of Azam's second habeas petition as untimely was improper. Id. In such circumstances, "the petitioner is entitled to equitable tolling of the AEDPA statute of limitations from the date the mixed petition was dismissed until the date a new federal habeas petition is filed, assuming ordinary diligence." Id. (internal quotation marks omitted).
The government claims Azam waived both the relation back and equitable tolling arguments. However, in our discretion we find that Azam, as a pro se petitioner, sufficiently alleged these claims in his petitions. See Trigueros v. Adams, 658 F.3d 983, 988 (9th Cir. 2011).
We decline to grant Azam's request for a certificate of appealability as to the remaining issues raised in his opening brief. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (A certificate of appealability may only issue "where a petitioner has made a 'substantial showing of the denial of a constitutional right.'").
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REVERSED and REMANDED.