FILED
NOT FOR PUBLICATION JUL 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZAMEER R. AZAM, No. 12-15656
Petitioner - Appellant, D.C. No. 5:10-cv-03900-EJD
v.
RICK HILL, Warden; et al., MEMORANDUM*
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted July 10, 2014
San Francisco, California
Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PIERSOL, Senior
District Judge.**
We review a district court’s dismissal of a habeas petition as untimely de
novo, Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010), and its factual findings
for clear error, Stancle v. Clay, 692 F.3d 948, 953 (9th Cir. 2012).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.
Notwithstanding the district court’s incorrect application of Sherwood v.
Tomkins, 716 F.2d 632 (9th Cir. 1983), in dismissing Azam’s first federal habeas
petition, see Henderson v. Johnson, 710 F.3d 872, 874 (9th Cir. 2013), Azam’s
second federal habeas petition cannot relate back to his first federal habeas
petition.1 See Rasberry v. Garcia, 448 F.3d 1150, 1155 (9th Cir. 2006) (“[A]
habeas petition filed after the district court dismisses a previous petition without
prejudice for failure to exhaust state remedies cannot relate back to the original
habeas petition.”). Therefore, his second federal habeas petition was untimely. See
28 U.S.C. § 2244(d)(1).
Nevertheless, Azam is entitled to equitable tolling. See Butler v. Long, No.
10-55202, 2014 WL 1717009, at *3, — F.3d — (9th Cir. June 24, 2014). In
dismissing Azam’s first federal habeas petition, the district court failed to consider
Azam’s request for a stay and did not give Azam “the option to amend the mixed
petition to remove the unexhausted claims.” Id. Therefore, its dismissal of Azam’s
second habeas petition as untimely was improper. Id. In such circumstances, “the
petitioner is entitled to equitable tolling of the AEDPA statute of limitations from
1
Azam claims, and the Government agrees, that Azam’s first federal habeas
petition was a mixed petition with exhausted and unexhausted claims. Therefore,
the district court’s obligations under Henderson to “grant leave to amend” a mixed
petition “and, if requested, . . . consider a petitioner’s eligibility for a stay” apply to
this case. 710 F.3d at 874.
-2-
the date the mixed petition was dismissed until the date a new federal habeas
petition is filed, assuming ordinary diligence.” Id. (internal quotation marks
omitted).
The government claims Azam waived both the relation back and equitable
tolling arguments. However, in our discretion we find that Azam, as a pro se
petitioner, sufficiently alleged these claims in his petitions. See Trigueros v.
Adams, 658 F.3d 983, 988 (9th Cir. 2011).2
REVERSED and REMANDED.
2
We decline to grant Azam’s request for a certificate of appealability as to
the remaining issues raised in his opening brief. See Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (A certificate of appealability may only issue “where a petitioner
has made a ‘substantial showing of the denial of a constitutional right.’”).
-3-