Brewer

MEMORANDUM **

Petitioner-Appellant Arthur Brewer appeals the district court’s dismissal of his habeas corpus petition for failure to ex *945 haust state remedies, and urges the court to remand for an evidentiary hearing on whether he is entitled to equitable tolling of the statute of limitations for filing the petition.

Initially, the state contends that this court lacks jurisdiction over the appeal because the district court’s certificate of appealability was defective. We disagree. “There is no doubt that issuance of a certificate of appealability is a jurisdictional prerequisite to appeal.” Gatlin v. Madding, 189 F.3d 882, 886 (9th Cir.1999), cert. denied, 528 U.S. 1087 , 120 S.Ct. 815 , 145 L.Ed.2d 686 (2000). However, this certificate was adequate to satisfy jurisdictional requirements. See id.; Furman v. Wood, 190 F.3d 1002,1005 (9th Cir.1999).

This petition as filed was wholly unexhausted, as petitioner’s counsel appropriately noted at oral argument. 1 Because the petition contained no exhausted claims, the district court lacked jurisdiction and was obliged to dismiss the federal petition immediately; neither amendment nor a stay was permissible. See Jiminez v. Rice, 276…

Concurring in Part and Dissenting in Part.

Dismissal without prejudice for failure to exhaust is inappropriate where, as here, there was a claim of procedural default. An exception to the exhaustion requirement allows consideration of unexhausted claims where “there is an absence of available state corrective process.” 28 U.S.C. § 2254 (b)(1)(B)(i); see O’Sullivan v. Boerckel, 526 U.S. 838, 848 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999) (stating that the majority agrees with Justice Stevens’ “description of the interplay between” exhaustion and procedural default); id. at 853-56 (Stevens, J., dissenting). The exhaustion analysis is thus only the first step; the court must go on to consider procedural default, with its attendant excuses.

Brewer asserts on appeal that the district court “refused to anticipate any procedural defaults,” and specifically that “cause and prejudice” excuse his failure to exhaust Ground Two of his amended petition. The state remedies may well be procedurally defaulted, particularly under Nevada Revised Statute 34.726, which requires post-conviction petitions to be filed within a year. See Pellegrini v. State, 34 P.3d 519 (Nev.2001) (clarifying Nevada…