F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A N T H O N Y B U T L E R , Petitioner-Appellant
,

v

.

D A V I D L O N G , W arden,

Respondent-Appellee

. N o. 10-55202

D.C. No. 2:09-cv-07028- J SL -RZ

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the Central District of California J . Spencer L etts, District J udg e , Presiding

Arg ued and Submitted F ebruary 3, 2014—Pasadena, California

F iled May

2, 2014 Amended J une 24, 2014

B efore: Harry

Preg erson and Marsha S. B erz o n, Circuit J udg es, and Carol B ag ley Amon, Chief District J udg e. *

Order; Per Curiam Opinion

* T h e Ho n o rab le Caro l B ag ley A m o n , Ch i ef J u d g e, Un ited S t a t e s District C o u rt f

o r th e Eastern District o f New Yo rk
, sittin g b y d esig n atio n

.B U T L E R V

. L O N G

2

SUMMARY * *

Habeas Corpus

The panel issu e d ( 1 ) an order amending its opinion, deny ing a petition for r ehearing
, and r ejecting a peti t i o n for rehearing en banc; and (2) a n amended opinion reversing the district court’s denial of an untimely 28 U.S.C. § 2254 h abeas corpus petition.

I n its amended o p i n i on, the panel held that because the district court d ismissed a previous, mix ed § 2254 p e t i t i o n without providing petitioner an opportunity to amend to delete any unex hausted claims, petitioner w a s entitled to equitable tolling from the date of the first dismissal until the filing of the instant p etition. B ecause equitab l e t o l ling rendered at least o n e of p etitioner’s claims timely
, the panel remanded for the district court to determine i f a n y other claims w ere ex hausted at the time the district court erroneously dismissed the first petition, relat ed b ack to any properly e x h a usted claim, or were otherwise entitled to equitable tolling

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.B U T L E R V

. L O N G 3

COUNSEL

J ohn W ard ( arg ued), S a

n F r a n c isco, California, for PetitionerAppellant.

Kim Aarons (arg

ued), Deputy Attorney G eneral; Michael R. J ohnsen, Supervis i n g D eputy Attorney General; L ance E. W inters, Senior Assistant Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Kamala D. Ha r r is, Attorney General of California, L o s Ang eles, California, for Respondent-Appellee.

ORDER

The Opinion filed May

2, 2014, is amended as follows:

1. At slip op. 6, the sentence b eg inning : “F ederal courts must dismiss habeas petitions

. . .” is a men d e d to read: “F ederal courts must dismiss ha b ea s p e titions that contain both ex h a

u sted and unex hausted claims, Rose v. Lundy
, 455 U.S. 5 09, 5 22 (1982), unless a petitioner requests a stay and a b e y ance of his mix e d petition that satisfies the r equire m e nts o f Rhines v

. W eber , 544 U.S. 269 (2005).”

2. At slip op. 6, the sentence beg inning : “B efore the district court dis m i s s e s a mix e d petition, however, a petitioner mus t

. . . ” is amended to read: “Additionally
, before t he district court dismisses a mix ed petition a petitioner must . . .”

W ith these amendments, the panel h as unanimously voted
to d e ny a ppellee’s petition for rehearing

. J udg e Preg ersonB U T L E R V

. L O N G

4

and J udg e B erz on h ave v o t e d to deny the petition for rehearing en b a n c

. J udg e Amon r ecommends denial of the petition for rehearing

en banc.

The full court h as been advised of the petiti o n for rehearing en banc, and no judg e h as r equested a vote on whether to rehear the matter en banc. F ed. R. App. P. 35.

The petition for rehearing i s d e n i ed and the petition for rehearing en b a n c is rejected. No further petitions for rehearing o r rehearing en banc may be filed in response to the amended opinion.

OP INION

PER CURI AM:

Petitioner-appellant Anth o ny B utler filed two federal habeas petitions relating to the same state-court convi c t i on, the first on October 5, 2008, and the second on September 21, 2009. 1 The district court dismissed the first p e tition, which contained both ex h austed a n d unex hausted claims, without offering B utler the option of amending his petition to ex clude the unex hausted claims. The same cou r t denied B utler’s

1 B u tler sig n ed t

h e f irst p etitio n o n Octo b er 5
, 20 0 8
, an d it w as stam ped f iled o n Octo b er 15
, 2 0 0 8

. W e assu m e t h at B u t ler tu rn ed h is p etitio n ov er to p riso n au t

h o rities o n th e sam e d ay h e sig n ed i t an d ap p ly th e m ailb ox

ru le. S ee Ho u sto n v. La ck
, 4 8 7 U.S. 26 6 (1 9 8 8 ); Po rter v. Olliso n , 6 2 0 F .3 d 9 52
, 9 5 5 n .2 (9 th Cir. 2 0 10 ). W e m ak e th e sam e assu m p tio n

w ith reg ard t o Bu tler’ s s eco n d f ed eral p etitio n , w

h ich w as sig n ed an d d ated Sep tem

b er 2 1 , 2 0 0 9

.B U T L E R V

. L O N G 5

second federal habeas petition as unt i m e l y

. B utler appeals the dismissal of his second petition, arg uing that because the district c ourt dismiss e d his first petition without first providing him an opport u n i t y to amend the petition, he is
ent i tled to e quitable tolling from the date the district court dismissed his f

irst federal h a b e a s petition until the filing o f his second p etition. B ecause we hold that equi t a ble tolling renders a t l e ast o ne claim raised in B utler’s second petition timely
, we reverse and remand to the district c ourt f or f urther proceeding s consistent with this disp osition.

Background

B u tler wa s c onvicted of attempted premeditated murder by a L os Ang eles County jury on October 28, 2005. On J u ne 23, 2006, the California Court of Appeal rejected B utler’s claim that the trial court erred in failing to instruct the jury on attempted voluntary manslaug hter. B u t ler appealed to the Supreme Court of California which, on September 1 3, 2006, denied B utler’s petition for review. N i nety day s later, on December 12, 2006, the clock beg an r un n i n g on the Antiterrorism and Effective Death Pe n a l t y Act’s (“AEDPA”), 28 U.S.C. § 2244(d), o n e-y e ar statute of limitations. P orter v. Ollison , 620 F .3d 952, 958–59 (9th Cir. 2010).

F ollowing the California Supreme Court’s d en i a l of his appeal, B utler filed a series of state habeas petitions, leading
up to his first federal habeas petition filed on October 5, 2008. I n his October 5, 2008 p e t i t i on, B utler raised five
g rounds on which he soug ht r elief: (1) the trial c ourt’s failure
to instruct on manslaug hter, (2) deprivation of a n impartial jury b ecause two jurors fell asleep, (3) ineffective assistance of counsel for fa i lure to arg ue self-defense, (4) ineffective assistance o f counsel for failure to a dv ise defendant that heB U T L E R V

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6

c o u l d r eplace a sleeping juror with an alternate, and ( 5 ) t h e trial court’s abuse of discretion in n ot allowing the defense to recall a g overnment witness. B utler noted that a state petition raising h is f

ifth g round for relief, the trial cou r t ’ s a buse o f discretion, w as concurrently pending b efore the L os Ang eles Superior Court. On Novem b e r 1 4
, 2008, the district court summarily dismissed B utler’s federal habeas petition, citing Sherwood v. Tomkins
, 716 F .2d 632 (9th Cir. 1983). Bu t ler

was not provided an o pportunity to amend his habeas petition
to ex cise any

unex hausted claims prior to its dismissal.

A f ter filing additional state habeas petitions, B utl e r returned to the district court on September 21, 2009. Ag ain, he raised five g rounds of relief, four that we r e raised in his first federal p etition, and one n e w gr ound not previously raised in federal court. 2 On October 1
, 2 0 0 9
, t h e mag istrate judg e issued a

n Order To Show Cause w hy the court should
not find B utler’s second f ederal h abeas petition time-barred.

Bu tler responded to the Order To Show Cause o n November 9, 2009, a

rg uing that he “sent state habeas corpus to lower court’s [ sic] Sept. 200 8 ” a n d t hat “due to the fact habeas w as filed in Sept[ e mber] 2008. Petitioner had to w ait
to ex haust state claims. To file federal claim [ sic]

. ” A s an

ex h ibit, B u tler a ttached the distri ct court’s decision dismissing his initial federal habeas petition.

2 T h e seco n d f

ed eral p etitio n

raised th e f

o llo w in g f

iv e g ro u n d s: (1 ) th e trial co u rt’ s f

ailu re to in stru ct on m an s lau g ht e r , (2 ) d ep riv atio n o f an im p artial j u ry b ecau se tw o j u ro rs f ell asleep
, (3 ) in ef

f ectiv e assistan ce of

co u n sel f o r f ailu re t o ad v ise def

en d an t th at h e co u ld rep lace a sleep in g j u ro r w ith an altern ate, (4 ) th e trial co u rt’ s ab u s e o f d i scretio n in n o t allo w in g th e d ef

en se to recall a g o v ern m en t w itn ess, an d (5 ) a c l a im of
p ro secu to rial m isco n d u ct f or k n ow in g ly u sin g f

alse testim o n y

. It o m i tted
g ro u n d th ree o f

th e f irst f ed eral p etitio n

.B U T L E R V

. L O N G 7

The mag istrate ju d ge issued a Report a nd Recomme n dation (“R& R”) recommending that the district

c o urt deny the petition as untimely and dismiss the a ct i o n

w i th prejudice. B utler filed a n o bjection to the R &R
, principally arg uing that he wa s e n t i tled to equitable tolling because he was “an indig ent, illiterate, incarcerated prisoner” who “acted with dilig e nce by seeking leg al assistan c e from various jail-house lawy ers.” I n addition, Butler referenced Rose v. Lundy
, 455 U.S. 509 (1982), arg uing tha t “it is pointless f

or f ederal courts to require state prisoners to purse collate r a l a t tacks which will not be considered properly on the merits.” I n a J anuary 15, 2010 order, t h e d i s trict court adopted the R& R and dismissed B utler’s habeas petition.

Discussion 3

I t is u ndisputed that B utler’s initial federal petition was a mix ed p etition containing at least on e properly ex hausted claim ( that the trial court failed to instruct on manslaug hter), and o ne unex hausted claim (that the tr i a l court abused its discretion in not allowing the defense to recall a g overnment witness). F ederal courts must d i s m i s s h abeas petitions that contain both ex hauste d a n d unex hausted claims, Rose v

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

a stay and abey an c e o f his mix ed petition that satisfies the requirement s of Rhines v. W eber
, 544 U.S. 269 (2005). Additionally
, before the district court dismis s e s a mix ed petition a petitioner must “be o ffered leave to amend the petition to d el e te any unex hausted claims and to proceed on

3 Neith er p arty h as arg u ed th at B u tler’ s i n i t i a l f ed eral p etitio n w as

u n tim ely

. A d d itio n ally
, B u t ler d oes n o t d isp u t e th at h is 2 0 09 petitio n w as

u n tim ely ab sen t eq u itab le to l l i n g. In v iew o f th ese co n cessio n s, th ere is

n o n eed to ad dress th e in itial tim elin ess o f eith er f ed eral p etitio n

.B U T L E R V

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8

the e x hausted claims.” Henderson v. J ohnson
, 710 F .3d 872, 8 7 3 (9th Cir. 2013); see also Jefferson v. Budge
, 419 F

. 3 d 1013, 1 015–16 (9th Cir. 2 005) (“This Court

. . . has long h eld that

. . . district courts must p rovide habeas litig a nts with the

o pportunity to amend their mix ed petitions b y striking th ei r

unex h a usted claims.” (internal quotation marks omitted)).

B e cause he was not afforded this option, B u tler arg ues, he is entitled to equitable tolling from the time his first petition

was dismisse d on November 14, 2008, to the filing of his second petition o n S e ptember 21, 2009. The W arden
counters that as a procedural matter B utler fo r f e i t e d this
arg ument by not raising it in the district court, and that even if the arg ument was not forfeited the district court’s d ismissal

was p ro p er

. Alternatively
, the W a r den arg ues that B utler is
not entitled to equitable tolling o f all the claims raised in the second habeas petition.

1. F orfeiture of Equitable Tolling Arg ument

Althoug h “[ n] o brig ht line e x ists to determine w hether an issue h as been properly raised below

. . . a workable standard is that the issue must be raised sufficiently for the trial court
t o rule on it.” W

alsh v. Nevada Dep’t of Huma n R e s

. , 471 F .3d 1033, 1037 (9th Cir. 2006) (internal quotation marks omitted). W here, as in this case, the petitioner is pro se, the documents he filed must be liberally construed. Erickson v

. Pardus
, 55 1 U .S. 89, 9 4 (2007); Roy v. Lampert
, 465 F .3d 964, 970 ( 9t h Cir. 2006) (the pro se status of a p etitioner “informs and col ors the lens throug h which we v iew the [ petitioner’s] filing s”).

B u t ler’s filing s sufficiently informed the district c ourt tha t he was advancing an arg ument for equitable tolling o n theB U T L E R V

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g rounds advanced in this a ppeal. His papers arg u ed that he

was entitled to equitable tolling
, notified the court that it h ad dismissed an earlier federal ha b e a s petition (the order was attached to his filing ), and referenced Rose v. Lundy

. 4 B utler further arg ued that the e rr oneous dismissal c aused him to b e l i e ve that he had to wait to ex haust all of his state c l a i m s before returning to federal court. Confronted with its initial order of d i s missal, B utler’s statements, and the reference to Ro s e v

. L undy
, the district court was g iven sufficient notice that B utle r r a ised the equitable tolling arg ument he raises here.

2. Merits of Equitable Tolling Arg ument

W h ether any claim in B utler’s second petition is rendered ti m e l y throug h the application of equitable tolling turns on whether the district c ourt erroneous l y dismissed B utler’s initial federal petition without p roviding him leave to amend. Even thoug h the district court failed to comply with the clear holding s in Jefferson and Henderson req u i r ing it to g rant a petitioner the o pportunity to amend a mix ed petition before dismissing the petition, the W arden never t h e l ess contends that the district court pr o p e r ly dismissed the mix ed petition pursuant to Sherwood a

nd that equitable tolling of any of the claims raised in second petition is therefore inappropriate.

4 T h is Co u rt h as h eld th at u n d er Ro se v. Lu n d y “o u t rig h t d ism issal

w ith o u t lea ve t o am en d o f th e p etitio n er’ s f ed eral h ab eas petitio n w as im p ro p er an d th at d istrict co u rts m u st p ro v i d e hab eas litig an ts w ith th e

o p p o rtu n ity to am en d th eir m i x ed p etitio n s b ef o re strik in g th eir

u n ex h au sted claim s.” Jefferso n , 4 19 F.3 d at 1 0 15

– 1 6 (in tern al q u o tatio n

m ark s o m itted ).B U T L E R V

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10

The Warden’s contention fails. Here, there was no direct
state appeal p e nding

. This Court h a s made plain that where

no direct state appeal is pending “ Sherwood d o e s not undermine the important prec edent requiring district courts f irst to g r ant leave to amend” before d ismissing a mi x e d petition. Henderson
, 710 F .3d a t 874. According ly
, the district court erred in dismissing the petition without first providing B utler the opportunity to amend his petition.

W h en a district court dismisses a mix ed petition without first o f f e ring the petitioner the option to amend the mix ed petition to remove the unex hausted c laims, “the petitioner is entitled to equitable tolling of the AEDPA statute of limitations from the date the mix ed petition w a s dismissed until the date a new federal habeas petition is filed, assuming ordinary dilig ence.” J

e fferson
, 419 F .3d at 1014. Here B utler acted d i l ig ently in filing a series of state habeas p e titions before returning to federal court w ithin a r e a s o n able time. Henderson and Jefferson dictate that B u t l e r is e ntitled to equitable tolling due to the district court’s e r r o n eous dismissal.

Althoug h we hold that B utler is entit led to equitable tolling
, because “AEDPA’s one-y ear 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 Ci r

. 2 0 1 2 ), it must be d etermined which of B utler’s claims should b e e q u i t ably tolled. B oth parties ag ree that B utler’s “ failure to instruct” claim was ex hausted and raised in both federal p etitions. T hat claim is entitled to equitable tolling

. On r emand the district court must det e rmine if any other claims raised in B utler’s second fed e r a l petition were

ex h austed a t the time the district court erroneously dismissedB U T L E R V

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his first petition, relate back to any properly ex hausted c laim, or are otherwise entitled to equitable tolling

.

Conclusion

F or the reasons stated a b ove, we find that B utler is entitled to equitable tolling due to the district court’s

erroneous dismissal of his first federal habeas petition without f i rst g ranting leave to amend, and r emand to the district c o u r t for further p roceeding s consistent w ith this opinion.

REVERSED and REMANDED.