Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, we deny Wauls' request for oral argument.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
State prisoner petitioned for writ of habeas corpus. The United States District Court for the Central District of California, Ronald S.W. Lew, J., dismissed petition as untimely, and appeal was taken. The Court of Appeals held that one-year limitations period for filing habeas petition was equitably tolled during pendency of prisoner's initial, timely petition.
Vacated and remanded.
Page 493.
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.
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.
Samuel Lee Wauls appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas petition as untimely under the AEDPA's one-year statute of limitations. We have jurisdiction pursuant to 28 U.S.C. § 2253.
Wauls contends that he is entitled to equitable tolling for the 16-month period during which his initial, timely § 2254 petition was pending in the district court until it was dismissed without prejudice. We review de novo the district court's dismissal of a habeas petition, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999).
The district court dismissed Wauls' 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's dismissal order, however, did not provide Wauls the option of striking the unexhausted claims and proceeding with only his exhausted claims as an alternative to dismissal. See Tillema v. Long, No. 00-15974, slip op. at 9962 (9th Cir. August 3, 2001) (concluding that in such instance, where the district court did not dismiss the § 2254 petition until after the limitations period expired, "it cannot accurately be said that the dismissal of [the] petition was, as the court's order stated, 'without prejudice.' ").
This "outright dismissal" without leave to amend was in error, and Wauls therefore is entitled to equitable tolling of the statute of limitations. See id. (deciding that the district court's error resulted in a lost opportunity for federal review of petitioner's claims).
In light of our disposition, Wauls' request for appointment of counsel is denied. On remand, Wauls may request appointment of counsel from the district court.