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

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 peti tion had already expired by the time the district court made this ruling. Thus, if Brambles dismissed his petition, his right to seek federal habeas review would be lost unless he could establish equitable tolling. See Tillema v. Long, 253 F.3d 494, 503-04 (9th Cir.2001) (en banc).

Relying on what the district court told him, and unfamiliar with the consequences of dismissing his timely petition in its entirety, Brambles chose…