Carney

MEMORANDUM ***

Brad Clifton Carney appeals an order dismissing his 28 U.S.C. § 2254 petition as time-barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244 (d). We have jurisdiction under 28 U.S.C. §§ 1291 & 2253, and we affirm.

A district court’s decision to dismiss a writ of habeas corpus on statute of limitations grounds is reviewed de novo. Miles *348 v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999).

Carney’s first federal petition was dismissed without prejudice on October 18, 1996, for failure to pay the $5 filing fee. Under Duncan v. Walker, 531 U.S. 991 , 121 S.Ct. 480 , 148 L.Ed.2d 454 (2001), the period while that first petition was pending is not tolled. In any event, the first petition was pending only two weeks and that time would not help Carney even.if was excluded. Although the dismissal was “without prejudice,” Tillema v. Long, 253 F.3d 494 (9th Cir.2001) (requiring equitable tolling if district court did not give a petitioner the option of proceeding only on exhausted claims in a mixed section 2254 petition) does not apply because the dismissal was not based upon lack of exhaustion. Because the filing fee was not paid, the district court did…