Willie Lee Jefferson v. Mike Budge

We hold today that it is error for a district court to dismiss a mixed habeas petition without first offering the petitioner the options provided in Rose v. Lundy, 455 U.S. 509 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982). If such an error occurs, the petitioner is entitled to equitable tolling of the AEDPA statute of limitations from the date the mixed petition was dismissed until the date a new federal habeas petition is filed, assuming ordinary diligence.

I. Introduction

A. Background and jurisdiction

Willie Lee Jefferson, a Nevada state prisoner, appeals pro se the district court’s order dismissing as untimely his 28 U.S.C. § 2254 habeas petition filed in 2002 challenging his 1992 conviction for burglary, robbery with use of a weapon, battery, and attempted sexual assault. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we reverse and remand.

B. Facts

On December 21, 1992, a Nevada jury convicted Jefferson of three counts of robbery with use of a deadly weapon and one count each of burglary, battery with use of a deadly weapon, and attempted sexual assault with a deadly weapon. Jefferson’s first full round of state collateral proceedings became final on July…