Zameer Azam v. Rick Hill

MEMORANDUM

We review a district court’s dismissal of a habeas petition as untimely de novo, Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir.2010), and its factual findings for clear error, Stancle v. Clay, 692 F.3d 948, 953 (9th Cir.2012).

Notwithstanding the district court’s incorrect application of Sherwood v. Tomkins, 716 F.2d 632 (9th Cir.1983), in dismissing Azam’s first federal habeas petition, see Henderson v. Johnson, 710 F.3d 872, 874 (9th Cir.2013), Azam’s second federal habeas petition cannot relate back to his first federal habeas petition. See Rasberry v. Garcia, 448 F.3d 1150, 1155 (9th Cir.2006) (“[A] ha-beas petition filed after the district court dismisses a previous petition without prejudice for failure to exhaust state remedies cannot relate back to the original habeas petition.”). Therefore, his second federal habeas petition was untimely. See 28 U.S.C. § 2244 (d)(1).

Nevertheless, Azam is entitled to equitable tolling. See Butler v. Long, 752 F.3d 1177, 1181 (9th Cir.2014). In dismissing Azam’s first federal habeas petition, the district court failed to consider Azam’s re quest for a stay and did not give Azam “the option to amend the mixed petition to remove…