Roman v. Cambra

Full title: Danny ROMAN, Petitioner-Appellant, v. Steven CAMBRA, Jr., Warden; et al.…

Court: United States Court of Appeals, Ninth Circuit

Date published: Aug 29, 2001

18 F. App'x 514 (9th Cir. 2001)

Opinion

18 Fed.Appx. 514 (9th Cir. 2001) Danny ROMAN, Petitioner-Appellant, v. Steven CAMBRA, Jr., Warden; et al., Respondents-Appellees. No. 00-55170. D.C. No. CV-99-00761-RSWL. United States Court of Appeals, Ninth Circuit. August 29, 2001

Submitted August 13, 2001 ^*.

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, Roman's request for oral argument is denied.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Federal prisoner brought habeas corpus petition challenging his first-degree murder conviction. The United States District Court for the Central District of California, Ronald S.W. Lew, J., dismissed petition as untimely. Prisoner appealed. The Court of Appeals held that court should not have dismissed petition without allowing leave to amend to proceed on exhausted claims only.

Reversed and remanded.

Appeal from the United States District Court for the Central District of California Ronald S.W. Lew, District Judge, Presiding.

Before HAWKINS, TASHIMA and GOULD, Circuit Judges.

MEMORANDUM ^**

** 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 9th Cir. R. 36-3.

California prisoner Danny Roman appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his first-degree murder conviction. We have jurisdiction under 28 U.S.C. § 2253(a). We review de novo the district court's denial of a habeas petition, Wade v. Terhune, 202 F.3d 1190, 1194 (9th Cir.2000), and we reverse and remand.

Roman contends that the district court erred by dismissing the instant habeas petition as time-barred under AEDPA's one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). We agree.

The district court dismissed Roman's first, timely federal habeas petition without prejudice because that petition contained both exhausted and unexhausted claims and was therefore a "mixed petition" under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The district court, however, did not give Roman the opportunity to amend that petition by deleting the unexhausted claims and to proceed on the exhausted claims only. This "outright dismissal" was in error, and therefore Roman is entitled to equitable tolling of the statute of limitations. Accordingly, we reverse the district court's order dismissing Roman's instant petition as untimely and remand to the

Page 515.

district court for further proceedings. ¹

1 Roman's motion for leave to file a supplemental brief is denied as moot.

REVERSED and REMANDED.