Wauls

MEMORANDUM **

Samuel Lee Wauls appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely under the AEDPA’s one-year statute of limitations. We have jurisdiction pursuant to 28 U.S.C. § 2253 .

Wauls contends that he is entitled to equitable tolling for the 16-month period during which his initial, timely § 2254 petition was pending in the district court until it was dismissed without prejudice. We review de novo the district court’s dismissal of a habeas petition, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999).

The district court dismissed Wauls’ 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’s dismissal order, however, did not provide Wauls the option of striking the unexhausted claims and proceeding with only his exhausted claims as an alternative to dismissal. See Tillema v. Long, No. 00-15974, slip op. at 9962 (9th Cir. August 3, 2001) (concluding that in such instance, where the district court did not dismiss the § 2254…