Michael D. Brambles v. W.A. Duncan, Warden C.A. Terhune, Director, California Department of Corrections

330 F.3d 1197 Michael D. BRAMBLES, Petitioner-Appellant, v. W.A. DUNCAN, Warden; C.A. Terhune, Director, California Department of Corrections, Respondents-Appellees. No. 01-55716. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 12, 2002. Filed June 3, 2003. COPYRIGHT MATERIAL OMITTED Kenneth M. Stern, Woodland Hills, CA, for the petitioner-appellant. Lawrence M. Daniels, Deputy Attorney General, Los Angeles, CA, for the respondents-appellees. Appeal from the United States District Court for the Central District of California; Margaret M. Morrow, District Judge, Presiding. D.C. No. CV-00-08180-MMM. Before: THOMPSON and RAWLINSON, Circuit Judges, and SCHWARZER, * Senior District Judge. Opinion by Judge DAVID R. THOMPSON. Concurrence by Judge RAWLINSON. DAVID R. THOMPSON, Circuit Judge: 1 Michael D. Brambles appeals the district court's dismissal of his habeas corpus petition as time-barred under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244 (d). 2 Brambles filed an earlier petition that was timely, but it included one exhausted and two unexhausted claims. The district court told Brambles he could either dismiss the…

Opinion by Judge DAVID R. THOMPSON. Concurrence by Judge RAWLINSON.

Michael D. Brambles appeals the district court’s dismissal of his habeas corpus petition as time-barred under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244 (d).

Brambles filed an earlier petition that was timely, but it included one exhausted and two unexhausted claims. The district court told Brambles he could either dismiss the unexhausted claims or dismiss the whole petition “without prejudice to any right [he] may have to file a new petition once available state remedies are exhausted as to all claims.” The court also warned Brambles, who was then pro se, that “recently amended 28 U.S.C. § 2244 limits the time period within which a petition may be filed.” In fact, the one-year period within which to file a federal petition had already expired by the time the district court made this ruling. 1 Thus, if Brambles dismissed his petition, his right to seek federal habeas review would be lost unless he could establish equitable tolling. See Ford v. Hubbard, 330 F.3d 1086, 1100 , 2003 WL 21095654 , at *11 (9th Cir. May 15, 2003). But the district court did not explain that to him.…

concurring:

I concur in the result because, and only because, the outcome reflected in the majority opinion is dictated by the precedential cases of Ford v. Hubbard, 330 F.3d 1086, 1100 , 2003 WL 21095654 *11 (9th Cir. May 15, 2003) and Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir.2003).