UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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