FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY BUTLER,

Petitioner-Appellant,

v.

DAVID LONG, Warden,

Respondent-Appellee.

No. 10-55202

D.C. No.

2:09-cv-07028-

JSL-RZ

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Central District of California

J. Spencer Letts, District Judge, Presiding

Argued and Submitted

February 3, 2014—Pasadena, California

Filed May 2, 2014

Amended June 24, 2014

Before: Harry Pregerson and Marsha S. Berzon, Circuit

Judges, and Carol Bagley Amon, Chief District Judge.*

Order;

Per Curiam Opinion

* The Honorable Carol Bagley Amon, Chief Judge, United States

District Court for the Eastern District of New York, sitting by designation.
2 BUTLER V. LONG

SUMMARY**

Habeas Corpus

The panel issued (1) an order amending its opinion,

denying a petition for rehearing, and rejecting a petition for

rehearing en banc; and (2) an amended opinion reversing the

district court’s denial of an untimely 28 U.S.C. § 2254 habeas

corpus petition.

In its amended opinion, the panel held that because the

district court dismissed a previous, mixed § 2254 petition

without providing petitioner an opportunity to amend to

delete any unexhausted claims, petitioner was entitled to

equitable tolling from the date of the first dismissal until the

filing of the instant petition. Because equitable tolling

rendered at least one of petitioner’s claims timely, the panel

remanded for the district court to determine if any other

claims were exhausted at the time the district court

erroneously dismissed the first petition, related back to any

properly exhausted claim, or were otherwise entitled to

equitable tolling.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
BUTLER V. LONG 3

COUNSEL

John Ward (argued), San Francisco, California, for PetitionerAppellant.

Kim Aarons (argued), Deputy Attorney General; Michael R.

Johnsen, Supervising Deputy Attorney General; Lance E.

Winters, Senior Assistant AttorneyGeneral; Dane R. Gillette,

Chief Assistant Attorney General; Kamala D. Harris,

Attorney General of California, Los Angeles, California, for

Respondent-Appellee.

ORDER

The Opinion filed May 2, 2014, is amended as follows:

1. At slip op. 6, the sentence beginning: “Federal courts

must dismiss habeas petitions . . .” is amended to

read: “Federal courts must dismiss habeas petitions

that contain both exhausted and unexhausted claims,

Rose v. Lundy, 455 U.S. 509, 522 (1982), unless a

petitioner requests a stay and abeyance of his mixed

petition that satisfies the requirements of Rhines v.

Weber, 544 U.S. 269 (2005).”

2. At slip op. 6, the sentence beginning: “Before the

district court dismisses a mixed petition, however, a

petitioner must . . . ” is amended to read:

“Additionally, before the district court dismisses a

mixed petition a petitioner must . . .”

With these amendments, the panel has unanimouslyvoted

to deny appellee’s petition for rehearing. Judge Pregerson
4 BUTLER V. LONG

and Judge Berzon have voted to deny the petition for

rehearing en banc. Judge Amon recommends denial of the

petition for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc, and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is denied and the petition for

rehearing en banc is rejected. No further petitions for

rehearing or rehearing en banc may be filed in response to the

amended opinion.

OPINION

PER CURIAM:

Petitioner-appellant Anthony Butler filed two federal

habeas petitions relating to the same state-court conviction,

the first on October 5, 2008, and the second on September 21,

2009.1 The district court dismissed the first petition, which

contained both exhausted and unexhausted claims, without

offeringButler the option of amending his petition to exclude

the unexhausted claims. The same court denied Butler’s

1 Butler signed the first petition on October 5, 2008, and it was stamped

filed on October 15, 2008. We assume that Butler turned his petition over

to prison authorities on the same day he signed it and apply the mailbox

rule. See Houston v. Lack, 487 U.S. 266 (1988); Porter v. Ollison,

620 F.3d 952, 955 n.2 (9th Cir. 2010). We make the same assumption

with regard to Butler’s second federal petition, which was signed and

dated September 21, 2009.
BUTLER V. LONG 5

second federal habeas petition as untimely. Butler appeals

the dismissal of his second petition, arguing that because the

district court dismissed his first petition without first

providing him an opportunity to amend the petition, he is

entitled to equitable tolling from the date the district court

dismissed his first federal habeas petition until the filing of

his second petition. Because we hold that equitable tolling

renders at least one claim raised in Butler’s second petition

timely, we reverse and remand to the district court for further

proceedings consistent with this disposition.

Background

Butler was convicted of attempted premeditated murder

by a Los Angeles County jury on October 28, 2005. On June

23, 2006, the California Court of Appeal rejected Butler’s

claim that the trial court erred in failing to instruct the jury on

attempted voluntary manslaughter. Butler appealed to the

Supreme Court of California which, on September 13, 2006,

denied Butler’s petition for review. Ninety days later, on

December 12, 2006, the clock began running on the

Antiterrorism and Effective Death PenaltyAct’s (“AEDPA”),

28 U.S.C. § 2244(d), one-year statute of limitations. Porter

v. Ollison, 620 F.3d 952, 958–59 (9th Cir. 2010).

Following the California Supreme Court’s denial of his

appeal, Butler filed a series of state habeas petitions, leading

up to his first federal habeas petition filed on October 5,

2008. In his October 5, 2008 petition, Butler raised five

grounds on which he sought relief: (1) the trial court’s failure

to instruct on manslaughter, (2) deprivation of an impartial

jury because two jurors fell asleep, (3) ineffective assistance

of counsel for failure to argue self-defense, (4) ineffective

assistance of counsel for failure to advise defendant that he
6 BUTLER V. LONG

could replace a sleeping juror with an alternate, and (5) the

trial court’s abuse of discretion in not allowing the defense to

recall a government witness. Butler noted that a state petition

raising his fifth ground for relief, the trial court’s abuse of

discretion, was concurrently pending before the Los Angeles

Superior Court. On November 14, 2008, the district court

summarily dismissed Butler’s federal habeas petition, citing

Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983). Butler

was not provided an opportunity to amend his habeas petition

to excise any unexhausted claims prior to its dismissal.

After filing additional state habeas petitions, Butler

returned to the district court on September 21, 2009. Again,

he raised five grounds of relief, four that were raised in his

first federal petition, and one new ground not previously

raised in federal court.2 On October 1, 2009, the magistrate

judge issued an Order To Show Cause why the court should

not find Butler’s second federal habeas petition time-barred.

Butler responded to the Order To Show Cause on

November 9, 2009, arguing that he “sent state habeas corpus

to lower court’s [sic] Sept. 2008” and that “due to the fact

habeas was filed in Sept[ember] 2008. Petitioner had to wait

to exhaust state claims. To file federal claim [sic].” As an

exhibit, Butler attached the district court’s decision

dismissing his initial federal habeas petition.

 

2 The second federal petition raised the following five grounds: (1) the

trial court’s failure to instruct on manslaughter, (2) deprivation of an

impartial jury because two jurors fell asleep, (3) ineffective assistance of

counsel for failure to advise defendant that he could replace a sleeping

juror with an alternate, (4) the trial court’s abuse of discretion in not

allowing the defense to recall a government witness, and (5) a claim of

prosecutorial misconduct for knowingly using false testimony. It omitted

ground three of the first federal petition.
BUTLER V. LONG 7

The magistrate judge issued a Report and

Recommendation (“R&R”) recommending that the district

court deny the petition as untimely and dismiss the action

with prejudice. Butler filed an objection to the R&R,

principally arguing that he was entitled to equitable tolling

because he was “an indigent, illiterate, incarcerated prisoner”

who “acted with diligence by seeking legal assistance from

various jail-house lawyers.” In addition, Butler referenced

Rose v. Lundy, 455 U.S. 509 (1982), arguing that “it is

pointless for federal courts to require state prisoners to purse

collateral attacks which will not be considered properly on

the merits.” In a January 15, 2010 order, the district court

adopted the R&R and dismissed Butler’s habeas petition.

Discussion3

It is undisputed that Butler’s initial federal petition was a

mixed petition containing at least one properly exhausted

claim (that the trial court failed to instruct on manslaughter),

and one unexhausted claim (that the trial court abused its

discretion in not allowing the defense to recall a government

witness). Federal courts must dismiss habeas petitions that

contain both exhausted and unexhausted claims, Rose v.

Lundy, 455 U.S. 509, 522 (1982), unless a petitioner requests

a stay and abeyance of his mixed petition that satisfies the

requirements of Rhines v. Weber, 544 U.S. 269 (2005). 

Additionally, before the district court dismisses a mixed

petition a petitioner must “be offered leave to amend the

petition to delete any unexhausted claims and to proceed on

3 Neither party has argued that Butler’s initial federal petition was

untimely. Additionally, Butler does not dispute that his 2009 petition was

untimely absent equitable tolling. In view of these concessions, there is

no need to address the initial timeliness of either federal petition.
8 BUTLER V. LONG

the exhausted claims.” Henderson v. Johnson, 710 F.3d 872,

873 (9th Cir. 2013); see also Jefferson v. Budge, 419 F.3d

1013, 1015–16 (9th Cir. 2005) (“This Court . . . has long held

that . . . district courts must provide habeas litigants with the

opportunity to amend their mixed petitions by striking their

unexhausted claims.” (internal quotation marks omitted)).

Because he was not afforded this option, Butler argues, he

is entitled to equitable tolling from the time his first petition

was dismissed on November 14, 2008, to the filing of his

second petition on September 21, 2009. The Warden

counters that as a procedural matter Butler forfeited this

argument by not raising it in the district court, and that even

if the argument was not forfeited the district court’s dismissal

was proper. Alternatively, the Warden argues that Butler is

not entitled to equitable tolling of all the claims raised in the

second habeas petition.

1. Forfeiture of Equitable Tolling Argument

Although “[n]o bright line exists to determine whether an

issue has been properly raised below . . . a workable standard

is that the issue must be raised sufficiently for the trial court

to rule on it.” Walsh v. Nevada Dep’t of Human Res.,

471 F.3d 1033, 1037 (9th Cir. 2006) (internal quotation marks

omitted). Where, as in this case, the petitioner is pro se, the

documents he filed must be liberally construed. Erickson v.

Pardus, 551 U.S. 89, 94 (2007); Roy v. Lampert, 465 F.3d

964, 970 (9th Cir. 2006) (the pro se status of a petitioner

“informs and colors the lens through which we view the

[petitioner’s] filings”).

Butler’s filings sufficientlyinformed the district court that

he was advancing an argument for equitable tolling on the
BUTLER V. LONG 9

grounds advanced in this appeal. His papers argued that he

was entitled to equitable tolling, notified the court that it had

dismissed an earlier federal habeas petition (the order was

attached to his filing), and referenced Rose v. Lundy.

4 Butler

further argued that the erroneous dismissal caused him to

believe that he had to wait to exhaust all of his state claims

before returning to federal court. Confronted with its initial

order of dismissal, Butler’s statements, and the reference to

Rose v. Lundy, the district court was given sufficient notice

that Butler raised the equitable tolling argument he raises

here.

2. Merits of Equitable Tolling Argument

Whether any claim in Butler’s second petition is rendered

timely through the application of equitable tolling turns on

whether the district court erroneously dismissed Butler’s

initial federal petition without providing him leave to amend.

Even though the district court failed to comply with the clear

holdings in Jefferson and Henderson requiring it to grant a

petitioner the opportunity to amend a mixed petition before

dismissing the petition, the Warden nevertheless contends

that the district court properly dismissed the mixed petition

pursuant to Sherwood and that equitable tolling of any of the

claims raised in second petition is therefore inappropriate.

4 This Court has held that under Rose v. Lundy “outright dismissal

without leave to amend of the petitioner’s federal habeas petition was

improper and that district courts must provide habeas litigants with the

opportunity to amend their mixed petitions before striking their

unexhausted claims.” Jefferson, 419 F.3d at 1015–16 (internal quotation

marks omitted).
10 BUTLER V. LONG

The Warden’s contention fails. Here, there was no direct

state appeal pending. This Court has made plain that where

no direct state appeal is pending “Sherwood does not

undermine the important precedent requiring district courts

first to grant leave to amend” before dismissing a mixed

petition. Henderson, 710 F.3d at 874. Accordingly, the

district court erred in dismissing the petition without first

providing Butler the opportunity to amend his petition.

When a district court dismisses a mixed petition without

first offering the petitioner the option to amend the mixed

petition to remove the unexhausted claims, “the petitioner is

entitled to equitable tolling of the AEDPA statute of

limitations from the date the mixed petition was dismissed

until the date a new federal habeas petition is filed, assuming

ordinary diligence.” Jefferson, 419 F.3d at 1014. Here Butler

acted diligently in filing a series of state habeas petitions

before returning to federal court within a reasonable time. 

Henderson and Jefferson dictate that Butler is entitled to

equitable tolling due to the district court’s erroneous

dismissal.

Although we hold that Butler is entitled to equitable

tolling, because “AEDPA’s one-year statute of limitations in

§ 2244(d)(1) applies to each claim in a habeas application on

an individual basis,” Mardesich v. Cate, 668 F.3d 1164, 1171

(9th Cir. 2012), it must be determined which of Butler’s

claims should be equitably tolled. Both parties agree that

Butler’s “failure to instruct” claim was exhausted and raised

in both federal petitions. That claim is entitled to equitable

tolling. On remand the district court must determine if any

other claims raised in Butler’s second federal petition were

exhausted at the time the district court erroneously dismissed
BUTLER V. LONG 11

his first petition, relate back to any properly exhausted claim,

or are otherwise entitled to equitable tolling.

Conclusion

For the reasons stated above, we find that Butler is

entitled to equitable tolling due to the district court’s

erroneous dismissal of his first federal habeas petition

without first granting leave to amend, and remand to the

district court for further proceedings consistent with this

opinion.

REVERSED and REMANDED.