Oliphant

MEMORANDUM **

Andre L. Oliphant appeals from the district court’s dismissal of his habeas petition as untimely under the Antiterrorism and Effective Death Penalty Act (“AED-PA”), 28 U.S.C. § 2244 (d). He raises several equitable and statutory tolling claims. Because we remand for an evidentiary hearing on Oliphant’s claim for equitable tolling based on the allegedly erroneous dismissal of his first, timely habeas petition, filed January 29, 2001, and because *834 this claim, if meritorious, is sufficient to save his current petition from untimeliness, we do not reach his other claims.

AEDPA’s statute of limitations is subject to equitable tolling. Roy v. Lampert, 465 F.3d 964, 969 (9th Cir.2006) (as amended). A district court’s “outright” dismissal of a timely filed, “mixed” habeas petition — that is, one containing both exhausted and unexhausted claims — without first giving the petitioner “the choice of exhausting his unexhausted claims by returning to state court, or abandoning those claims and pursuing the remaining exhausted claims in federal court” is an “extraordinary” circumstance supporting equitable tolling. Jefferson v. Budge, 419 F.3d 1013, 1015, 1017 (9th Cir.2005)…