NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

ZAMEER R. AZAM,

 Petitioner - Appellant,

 v.

RICK HILL, Warden; et al.,

 Respondents - Appellees.

No. 12-15656

D.C. No. 5:10-cv-03900-EJD

MEMORANDUM*

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).

FILED

JUL 16 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * 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.1See 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

1Azam 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.

2We 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-