Schriver

MEMORANDUM *

Steve Roy Schriver appeals the district court’s order dismissing as untimely his second petition for habeas relief under 28 U.S.C. § 2254 . The district court previously dismissed without prejudice Schri-ver’s first petition — which was timely filed but “mixed” — for failure to exhaust certain claims in state court. Because Schriver waited to file his first federal habeas petition until six days before AEDPA’s one-year statute of limitation elapsed, dismissal of the petition close to three years later meant that any future petition would be untimely. See Duncan v. Walker, 533 U.S. 167, 181-82 , 121 S.Ct. 2120 , 150 L.Ed.2d 251 (2001) (holding that the AEDPA statute of limitation is not tolled during the pendency of a federal petition). On appeal, Schriver contends that the district court erred in granting the state’s motion to dismiss his first petition because he was able to exhaust prior to the district court’s ruling on the motion.

Schriver asserts that he is entitled to equitable tolling of the AEDPA statute of limitation or relation back of his second petition as an amendment to his first timely petition. Alternatively, he argues that the district court erred…