Brewer v. Long

32 F. App'x 944

Opinions

MEMORANDUM

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Petitioner-Appellant Arthur Brewer appeals the district court’s dismissal of his habeas corpus petition for failure to exhaust state remedies, and urges the court to remand for an evidentiary hearing on whether he is entitled to equitable tolling of the statute of limitations for filing the petition.

Initially, the state contends that this court lacks jurisdiction over the appeal because the district court’s certificate of appealability was defective. We disagree. “There is no doubt that issuance of a certificate of appealability is a jurisdictional prerequisite to appeal.” Gatlin v. Madding, 189 F.3d 882, 886 (9th Cir.1999), cert. denied, 528 U.S. 1087, 120 S.Ct. 815, 145 L.Ed.2d 686 (2000). However, this certificate was adequate to satisfy jurisdictional requirements. See id.; Furman v. Wood, 190 F.3d 1002,1005 (9th Cir.1999).

This petition as filed was wholly unexhausted, as petitioner’s counsel appropriately noted at oral argument.¹ Because the petition contained no exhausted claims, the district court lacked jurisdiction and was obliged to dismiss the federal petition immediately; neither amendment nor a stay was permissible. See Jiminez v. Rice, 276 F.3d 478 (9th Cir.2001). Exhaustion is the only issue properly before us, because Brewer has failed to clearly raise the issues of excuse and procedural default on appeal. Because the petition was properly dismissed, we need not reach the equitable tolling issue.

AFFIRMED.

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.

1 . The state did not waive exhaustion. See 28 U.S.C. § 2254(b)(3).

1 . This is a particularly critical step given that Antiterrorism and Effective Death Penalty Act time limits often mean that a dismissal without prejudice has the effect of permanently barring the door to federal habeas corpus review-as it does here. See 28 U.S.C. § 2244(d)(1); Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001).