James Edward Smith v. J.M. Ratelle B. Kathleen Blanchard

*815 Opinion by Judge JAMES R. BROWNING; Dissent by Judge BEEZER.

California state prisoner James E. Smith appeals the dismissal of his habeas corpus petition as barred by the one-year statute of limitations of the Anti Terrorism and Effective Death Penalty Act (AED-PA). We hold that Smith is entitled to equitable tolling because the district court erroneously dismissed his earlier, timely habeas petition without first giving him an opportunity to file an amended petition as an alternative to dismissal. We therefore reverse and remand.

I.

Smith was convicted of first degree burglary and sentenced to 22 years in prison. His conviction was affirmed on direct appeal, and the California Supreme Court denied review on November 2,1994.

On March 7, 1996, Smith filed a pro se habeas corpus petition in federal district court. The petition contained seven claims, only two of which had been presented to the state courts on direct appeal. Shortly after AEDPA was signed into law on April 24, 1996, the district court dismissed this first petition for failure to exhaust state remedies. The court told Smith that he could either submit a new petition after judgment that omitted the unexhausted…

dissenting:

The district court improperly dismissed petitioner’s second federal habeas petition without offering him an opportunity to amend the petition. This error did not cause petitioner to file his third habeas petition after AEDPA’s statute of limitations had run. It was petitioner’s own doing that caused the late filing.

*820 Petitioner is not entitled to equitable tolling. The opinion of the Ninth Circuit filed today refuses to apply clearly established principles announced by the Supreme Court.

I would affirm the district court.

I

A federal habeas petitioner is required to fully exhaust the claims supporting the federal petition in state court before a federal district court can potentially grant the petition. 1 28 U.S.C. § 2254 (b)(1)(A). Prisoners may fail to present a fully exhausted federal habeas petition on their first attempt, necessitating a return to state court. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir.2002).

Prisoner James Edward Smith (“Smith”) made three attempts to file a fully exhausted petition over a two and a half year period. Five of the seven claims in Smith’s first federal petition were unex-hausted. The district court dismissed this…

323 F.3d 813 James Edward SMITH, Petitioner-Appellant, v. J.M. RATELLE; B. Kathleen Blanchard, Respondents-Appellees. No. 99-55824. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 8, 2000. Submission Vacated December 18, 2000. Resubmitted March 20, 2003. Filed March 26, 2003. Maria E. Stratton, Federal Public Defender, and Mark R. Drozdowski, Deputy Federal Public Defender, Los Angeles, CA, for the petitioner. Bill Lockyer, Attorney General of California, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Theresa A. Cochrane, Deputy Attorney General, Los Angeles, CA, for the respondent. Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. No. CV-98-05747-R-EE. Before: BROWNING, PREGERSON, and BEEZER, Circuit Judges. Opinion by Judge JAMES R. BROWNING; Dissent by Judge BEEZER. JAMES R. BROWNING, Circuit Judge. 1 California state prisoner James E. Smith appeals the dismissal of his habeas corpus petition as barred by the one-year statute of limitations of…