Roman v. Cambra

18 F. App'x 514

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 29, 2001
• Docket: No. 00-55170; D.C. No. CV-99-00761-RSWL
• Status: Published

Opinion

MEMORANDUM

**

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 district court for further proceedings.¹

REVERSED and REMANDED.

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.

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