Martinez

MEMORANDUM **

California state prisoner Duncan G.J. Martinez appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely, challenging his 1996 jury-trial conviction and life sentence for first degree murder. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We vacate and remand.

Martinez contends that he is entitled to tolling for the entire time his first timely-filed mixed federal habeas petition was pending in the district court.

At the time the district court dismissed Martinez’s first federal petition, the court did not have the benefit of our decisions in Ford v. Hubbard, 330 F.3d 1086, 1100 (9th Cir.2003) (as amended) (allowing a second petition to relate back to the first petition after concluding that the district court erred when it failed to inform a pro se petitioner that, on the face of his first *548 petition, he would be time-barred upon returning to federal court with newly-exhausted claims), Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir.) (as amended), cert. denied, — U.S. —, 123 S.Ct. 2094 , 155 L.Ed.2d 1077 (2003) (deciding that “the district court must consider the alternative of staying the petition after…