Taylor v. Woodford

123 F. App'x 297

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2005
• Docket: No. 01-56307; D.C. No. CV-00-10427-CBM
• Status: Published

Opinion

MEMORANDUM

**

Ronald Evans Taylor appeals pro se the district court’s judgment dismissing his 28 U.S.C. § 2254 petition for writ of habeas corpus as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Taylor contends the instant petition is timely because he is entitled to equitable tolling for the period during which an earlier federal habeas petition was pending in district court prior to dismissal without prejudice. Because the district court properly dismissed Taylor’s earlier federal petition as mixed after he declined the opportunity to strike unexhausted claims, and because the district court was not required to advise Taylor it did not have the power to stay a mixed petition, we conclude that the district court did not affirmatively mislead Taylor in dismissing the earlier federal petition without prejudice. See Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 2447, 159 L.Ed.2d 338 (2004) (holding that district courts are not required to give specific advisements prior to dismissal of a mixed petition or “to act as counsel or paralegal to pro se litigants”). Accordingly, Taylor is not entitled to equitable tolling for the period during which his earlier habeas petition was pending in federal district court. See id. at 2448 (noting that equitable tolling may be appropriate if “petitioner is affirmatively misled”) (Connor, J., concurring).

AFFIRMED.

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.