McMillan

MEMORANDUM **

California prisoner Tyrone McMillan appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We review de novo the district court’s denial of McMillan’s habeas petition on statute of limitations grounds, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we affirm in part, reverse in part, and remand.

McMillan contends that the district court erred in dismissing his second habeas petition as untimely because it had dismissed his prior, timely federal habeas petition as “mixed” under Rose v. Lundy, 455 U.S. 509 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982), without giving him the chance to strike the unexhausted claim and to proceed with the remaining exhausted ones.

The district court’s “outright dismissal” of the first petition without leave to amend was error. See Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir.2000). McMillan is entitled to equitable tolling of the statute of limitations with respect to the claims that he had properly exhausted by the time he filed his first § 2254 petition; otherwise the district court’s erroneous dismissal “without prejudice”…