Cervantes

MEMORANDUM **

John Cervantes, a California state prisoner, appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 petition as untimely under 28 U.S.C. § 2244 (d). We have jurisdiction pursuant to 28 U.S.C. § 2253 . We review de novo the district court’s dismissal of Cervantes’ habeas petition, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we vacate and remand for further proceedings.

Cervantes contends that his § 2254 motion was timely filed because the Antiter-rorism and Effective Death Penalty Act’s (ADEPA) one-year limitation period was equitably tolled while a prior § 2254 petition was pending. This contention has merit.

The one-year statute of limitations began to run in Cervantes’ case on April 24, 1996. See 28 U.S.C. § 2244 (d)(1); Miles v. Prunty, 187 F.3d at 1105 . On March 4, 1997, Cervantes filed a timely but mixed § 2254 petition.

On December 22, 1997, after the one-year limitations period had expired, the district court granted Cervantes’ motion to dismiss the petition without prejudice to enable him to exhaust his claims in state court.

The district court dismissed as time-barred Cervantes’ subsequent § 2254 petition, filed on…