Evans

MEMORANDUM **

James Earl Evans, a California state prisoner, appeals pro se the district court’s dismissal of his habeas petition pursuant to 28 U.S.C. § 2254 as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we vacate and remand.

On July 20, 1998, Evans filed a timely § 2254 petition that contained both exhausted and unexhausted claims. On April 12, 1999, shortly before the one-year statute of limitations period expired, the district court denied the petition without prejudice to refiling after Evans exhausted all of his claims before the California Supreme Court. The district court did not advise Evans of the right to proceed only on the exhausted claims. In 2000, the district court dismissed as time-barred Evans’ subsequent § 2254 petition filed shortly after the California Supreme Court denied his state habeas petition.

We recently held that the one-year limitations period should be equitably tolled where the district court dismisses a prior federal habeas petition without giving the petitioner the opportunity to abandon unexhausted claims as an alternative to suffering dismissal. See Tillema v. Long, 253 F.3d 494, 503-04 (9th Cir.2001). Because Evans was…