Whitfield

MEMORANDUM *

Paris Whitfield appeals the dismissal of his petition for a writ of habeas corpus. We vacate the judgment and remand for reconsideration of the order of dismissal. The parties are familiar with the factual and procedural history of this case, so we need not recount it here.

I

Whitfield contends that his second petition is a continuation of his first, timely- *831 filed, petition. However, we have rejected the theory of “relation-back” or “continuation” in the context of successive petitions, see Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir.1999), unless the district court (1) expressly or impliedly retained jurisdiction, see id., or (2) improperly dismissed the original petition, see Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir.2000). Neither exception applies. Thus, Whitfield is not entitled to rely on his original filing to avert application of the federal habeas statute of limitations.

II

The district court dismissed Whitfield’s petition as untimely, noting that even if it were to apply equitable tolling, petitioner would still exceed the statute of limitations by twenty-one (21) days. For this reason, the district court did not reach the merits of the…