Ngengi

MEMORANDUM

Kenyatta Ngengi (“Ngengi”), a California state prisoner, appeals the dismissal of his federal habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2254 and reverse.

Ngengi, acting pro se, timely filed a federal habeas corpus petition. After the one-year statute of limitations established by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) ran out, the district court dismissed Ngengi’s petition without prejudice for failing to exhaust one of the claims. The district court did not advise Ngengi that he had the right to amend his federal habeas petition by deleting the one unexhausted claim as an alternative to suffering dismissal. After exhausting the remaining claim in state court, Ngengi filed a second habeas petition which was dismissed as untimely.

When a petitioner files a federal habeas petition that includes both exhausted and unexhausted claims, the district court must give the petitioner “the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court.” Rose v. Lundy, 455 U.S. 509, 510 , 102 S.Ct. 1198 , 71 L.Ed.2d 379…