Gould

MEMORANDUM **

AEDPA’s statute of limitations is tolled while a “properly filed” state habeas petition is pending. 28 U.S.C. § 2244 (d)(2). “[I]f a state’s rule ... contains exceptions that require a state court to examine the merits of a petition before it is dismissed, the petition, even if untimely, should be regarded as ‘properly filed.’ ” Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001). We note that neither Dictado nor Artuz v. Bennett, 531 U.S. 4 , 121 S.Ct. 361 , 148 L.Ed.2d 213 (2000), had yet been decided when this case was in the district court.

Under Nevada law, state courts cannot dismiss a late petition as untimely if the petitioner demonstrates both that the delay wasn’t his fault and “[t]hat dismissal ... will unduly prejudice [him].” Nev. Rev.Stat. 34.726(1). To determine whether a petitioner has made the latter showing, a court must examine the merits of each claim in the petition before dismissing it. Like the state statute at issue in Dicta-do, the Nevada statute of limitations “does *793 not impose an absolute bar to filing,” and Gould’s state habeas petition therefore was “properly filed.” Dictado, 244 F.3d at 728 (quoting Smith v. Ward, 209 F.3d…