                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 ANTHONY BUTLER,                                       No. 10-55202
             Petitioner-Appellant,
                                                         D.C. No.
                       v.                             2:09-cv-07028-
                                                          JSL-RZ
 DAVID LONG, Warden,
              Respondent-Appellee.                     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 Petitioner-
Appellant.

Kim Aarons (argued), Deputy Attorney General; Michael R.
Johnsen, Supervising Deputy Attorney General; Lance E.
Winters, Senior Assistant Attorney General; 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 unanimously voted
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
offering Butler 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 Penalty Act’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 sufficiently informed 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.
