UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7682
KHOSROW PARMAEI,
Petitioner – Appellant,
v.
RICK JACKSON, Administrator,
Respondent – Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen,
Senior District Judge. (1:09-cv-00288-GCM)
Submitted: April 27, 2010 Decided: May 21, 2010
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Khosrow Parmaei, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Khosrow Parmaei seeks to appeal the district court’s
order and judgment dismissing as untimely his 28 U.S.C. § 2254
(2006) petition for a writ of habeas corpus. Finding that the
unique circumstances of this case warrant an application of
equitable tolling, we grant a certificate of appealability,
vacate the order and judgment of the district court, and remand
for further proceedings.
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) includes a one-year statute of limitations for
§ 2254 petitions brought by state prisoners, see 28 U.S.C.
§ 2244(d) (2006). This limitations period is subject to
equitable tolling where a prisoner has been prevented by
extraordinary circumstances beyond his control or external to
his own conduct from filing his petition on time, Rouse v. Lee,
339 F.3d 238, 246 (4th Cir. 2003) (en banc), and has diligently
pursued his rights, Lawrence v. Florida, 549 U.S. 327, 336
(2007).
Here, although Parmaei originally tendered his § 2254
petition to the district court clerk for filing six days before
the AEDPA’s statute of limitations expired, the clerk,
believing, erroneously, that the petition was an unauthorized,
successive petition, refused to place it on the docket.
Instead, the clerk directed Parmaei to resubmit his petition
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once he had obtained permission from this court to file a second
or successive petition, see 28 U.S.C. § 2244(b)(3). However, by
the time the clerk made this determination, the AEDPA’s statute
of limitations had expired. And although Parmaei diligently
complied with the clerk’s erroneous instruction to seek
authorization from this court under § 2244 to file a successive
petition and the district court’s subsequent mistaken directive
to exhaust his § 2254 claims in state court, such directives
were unnecessary and ultimately, futile. Parmaei’s original
§ 2254 petition was not successive and his claims had become
fully exhausted on the last day of the one-year limitations
period, when Parmaei’s petition was pending, undocketed, before
the district court clerk. Further, the directives were of no
help to Parmaei, as the statute of limitations had already
elapsed by the time the directives issued, rendering any
subsequent petition he might file time-barred.
Under these circumstances, we conclude that equity
should operate to allow Parmaei to pursue on § 2254 those claims
that, but for the clerk’s docketing failure, would have been
timely before the district court. Because the application of
equitable tolling of the limitations period is appropriate, we
grant Parmaei a certificate of appealability, vacate the
district court’s judgment, and remand for further proceedings.
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We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
VACATED AND REMANDED
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