Dawson
Dawson v. Roe
Opinion
Lead Opinion
MEMORANDUM ***
Martin Earl Dawson appeals 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 under 28 U.S.C. §§ 1291 and 2253. We review the district court’s dismissal de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and vacate and remand.
Dawson contends that his § 2254 petition was timely filed because the Antiterrorism and Effective Death Penalty Act’s 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 on July 14, 1998. See 28 U.S.C. § 2244 (d)(1); Miles, 187 F.3d at 1105 . On July 13, 1999, Dawson filed a timely but mixed § 2254 petition. 1 On December 22, 1999, well after the one-year limitations period had expired, the district court dismissed the petition without prejudice to *300 refiling after exhausting all his claims before the California Supreme Court. The district court did not advise Dawson of the right to proceed only on the exhausted claims, and denied his motion to hold federal proceedings in abeyance while he exhausted the claims.