Waldo

MEMORANDUM **

Michael Wiley Waldo appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition for habeas corpus as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We review de novo the district court’s dismissal of Waldo’s habeas petition, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we vacate and remand.

Waldo contends that the district court’s dismissal without prejudice of both his first and second federal habeas petitions did not dismiss the action in its entirety, and thus his third exhausted federal petition “related back” to his earlier timely petitions. We granted a certificate of appealability on two issues: (1) whether the district court properly dismissed the petition as time-barred; and (2) whether there are any grounds for equitable tolling.

Waldo’s conviction became final on June 11, 1998, and absent any tolling of the one-year limitations period, his federal petition would have been due on June 11, 1999. See 28 U.S.C. § 2244 (d)(1)(A); Tillema v. Long, 253 F.3d 494, 498 (9th Cir.2001). Waldo, who at that time was proceeding pro se, filed his first federal petition sometime between March 1, and March 18, 1999; the district…