Pitts

MEMORANDUM **

Edgar Nelson Pitts appeals-the district court’s denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254 . The court denied his request for equitable tolling and dismissed his petition as untimely under AEDPA’s one-year statute of limitations. We now reverse.

Pitts argues, inter alia, that he is entitled to equitable tolling because the district court summarily dismissed his first federal habeas petition without advising him that he could proceed with only his exhausted claims pursuant to Rose v. Lundy, 455 U.S. 509, 510 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982). Such an error is sufficiently extraordinary to justify equitable tolling provided that the habeas petitioner “return[s] to federal court within a reasonable period of time.” Jefferson v. Budge, 419 F.3d 1013, 1017 (9th Cir.2005).

We find that district court erred in failing to advise Pitts that he could pursue his first habeas petition by abandoning his unexhausted claims. The court purported to dismiss the petition on two independent grounds: it was mixed and it did not name Pitts’s immediate custodian. The second ground was invalid.

We also find that Pitts diligently pursued his state…