Henry
Henry v. Lamarque
Opinion
Lead Opinion
MEMORANDUM **
California state prisoner Shedrick L. Henry appeals the district court’s order dismissing his 28 U.S.C. § 2254 petition as time-barred. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm.
Henry contends that he is entitled to equitable tolling because the district court erred by not informing him of the option of striking his unexhausted claims *303 before it dismissed his original habeas petition without prejudice. Although this court consistently has held that district courts must allow petitioners to amend their mixed petitions to strike their unexhausted claims as an alternative to suffering dismissal, see Guillory v. Roe, 329 F.3d 1015, 1017-18 (9th Cir.), cert. denied, 540 U.S. 974 , 124 S.Ct. 449 , 157 L.Ed.2d 324 (2003), we conclude that Henry’s lack of diligence in pursuing his claims precludes equitable tolling in this case. See id. at 1018 & n. 1 (noting that petitioner must demonstrate diligence in exhausting claims, and stating that “the relevant measure of diligence is how quickly a petitioner sought to exhaust the claims dismissed as unexhausted, and how quickly he returned to federal court after doing so”).