Lomeli

ORDER

This case is resubmitted as of the date of this order.

MEMORANDUM **

The district court did not err when it determined that Lomeli’s federal habeas petition was untimely. Accordingly, we affirm the dismissal of the petition.

The facts are well known to the parties and will be repeated here only insofar as is necessary to explain our decision. Lomeli filed four state habeas petitions. His first two petitions raised identical issues. The California Supreme Court denied petition number 2 with a citation to, inter alia, the untimeliness rule of In re Swain, 34 Cal.2d 300 , 209 P.2d 793 (1949) (state habeas petitioner who belatedly presents a collateral attack must justify the delay in raising the question).

Petition numbers 3 and 4 were both filed in the California Courts of Appeal. Petition number 3 attempted to justify the In re Swain delay identified by the Supreme Court in its denial of petition *642 number 2. 1 Thus, under the holding King v. Roe, 340 F.3d 821 (9th Cir.2003) (the gap between a Supreme Court petition— denied without prejudice but with a citation to In re Swain — and a second series of petitions that made no attempt to correct the In re Swain problem, is…

dissenting.

Contrary to the majority, I would hold that Lomeli’s fourth habeas petition did not completely “abandon[] the claims of his first application,” and therefore did not begin “an entirely new round of review.” Because Lomeli’s fourth petition attempted to correct pleading errors cited by the California Supreme Court in its denial of his second petition, such petition constituted part of the “one full round” of state collateral review to which he is entitled under King v. Roe, 340 F.3d 821 (9th Cir.2003). Therefore, Lomeli was entitled to interval tolling between his third and fourth petitions and the dismissal of his federal habeas petition as untimely was error. For these reasons, I respectfully dissent.