Evans v. Duncan

55 F. App'x 448

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 21, 2003
• Docket: No. 01-55296; D.C. No. CV-00-00385-SVW
• Status: Published

Opinion

MEMORANDUM

**

James Earl Evans, a California state prisoner, appeals pro se the district court’s dismissal of his habeas petition pursuant to 28 U.S.C. § 2254 as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we vacate and remand.

On July 20, 1998, Evans filed a timely § 2254 petition that contained both exhausted and unexhausted claims. On April 12, 1999, shortly before the one-year statute of limitations period expired, the district court denied the petition without prejudice to refiling after Evans exhausted all of his claims before the California Supreme Court. The district court did not advise Evans of the right to proceed only on the exhausted claims. In 2000, the district court dismissed as time-barred Evans’ subsequent § 2254 petition filed shortly after the California Supreme Court denied his state habeas petition.

We recently held that the one-year limitations 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. See Tillema v. Long, 253 F.3d 494, 503-04 (9th Cir.2001). Because Evans 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 Tille-ma, we vacate and remand for further proceedings consistent with this disposition.¹

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . We DENY Evan's motion for appointment of counsel, but GRANT his motion for judicial notice of recent decisions.