                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 19 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CAMILLE BYLO LEWIS,                             No.    15-16797

                Petitioner-Appellant,           D.C. No.
                                                2:13-cv-00757-MMD-VCF
 v.

STATE OF NEVADA,                                MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Miranda M. Du, District Judge, Presiding

                       Argued and Submitted May 15, 2017
                            San Francisco, California

Before: McKEOWN and MURGUIA, Circuit Judges, and RUFE,** District Judge.

      Petitioner Camille Bylo Lewis appeals the district court’s dismissal of her

habeas petition as untimely. This Court granted Lewis’ request for a certificate of

appealability on the following question: “whether the district court properly

determined that the first amended petition was barred by the statute of limitations.”


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Cynthia M. Rufe, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and § 2253, and we reverse and

remand.

       1.    Under the Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”), we review de novo “[t]he dismissal of a petition for writ of habeas

corpus as time-barred[.]” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).

Review of the district court’s application of the relation-back doctrine under

Federal Rule of Civil Procedure 15(c) is also de novo. Williams v. Boeing Co., 517

F.3d 1120, 1132 (9th Cir. 2008). “An amended habeas petition . . . does not relate

back (and thereby escape AEDPA’s one-year time limit) when it asserts a new

ground for relief supported by facts that differ in both time and type from those the

original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005); see also

Fed. R. Civ. P. 15(c). Claims brought in an amended petition for a writ of habeas

corpus relate back to the original petition if they arise out of “a common ‘core of

operative facts’ uniting the original and newly asserted claims.” Mayle, 545 U.S. at

659.

       2.    Here, the district court properly concluded that Lewis’ First Amended

Petition could not relate back to her “Notice of Appeal” because the Notice of

Appeal contained no factual allegations, no claims, and no requests for relief.

Although a pro se habeas petition is “given the benefit of liberal construction,”

Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010), even “a liberal


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interpretation . . . may not supply . . . [a] claim that [was] not initially pled,” Ivey v.

Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, the

Notice of Appeal’s bare reference to a “final judgment/order issued by the Nevada

Supreme Court entered the 26th day of July, 2012,” without more, was insufficient

to incorporate by reference her ineffective assistance of counsel claim put forth in

her state habeas proceedings. See Fed. R. Civ. P. 10(c) (“A copy of a written

instrument that is an exhibit to a pleading is part of the pleading for all purposes.”

(emphasis added)); see also Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District

judges have no obligation to act as counsel or paralegal to pro se litigants.”).

       3.     We also review de novo whether equitable tolling applies. Fue v.

Biter, 842 F.3d 650, 653 (9th Cir. 2016) (en banc). To be entitled to equitable

tolling of the one-year limitations period AEDPA imposes, a habeas petitioner

must show “‘(1) that [she] has been pursuing [her] rights diligently, and (2) that

some extraordinary circumstances stood in [her] way’ and prevented timely filing.”

Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544

U.S. 408, 418 (2005)). We conclude that Lewis has sufficiently established that

both prongs of the equitable tolling analysis are met in this case.

       4.     Lewis filed her “Notice of Appeal” more than 90 days before her one-

year AEDPA deadline. Although this filing was deficient as a habeas petition, the

district court accepted her filing and did not respond to Lewis in any way for over


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one year due to an “atypical and anomalous administrative error.”1 This

unexplained error on the part of the district court not only reasonably led Lewis to

believe that her filing was not deficient, but it cost Lewis valuable time that she

would otherwise have had to file a proper habeas petition. Cf. Corjasso v. Ayers,

278 F.3d 874, 878 (9th Cir. 2002) (holding that a district court’s improper

dismissal—combined with the court’s loss of the original petition—was an

“extraordinary circumstance” warranting equitable tolling). Accordingly, we

conclude that the district court’s administrative error, coupled with its failure to

take any action for over a year, constitutes an extraordinary circumstance.

      5.     We also conclude that Lewis acted reasonably diligently under the

circumstances. See Holland, 560 U.S. at 653 (“The diligence required for equitable

tolling purposes is ‘reasonable diligence,’ not ‘maximum feasible diligence.’”).

Lewis mailed in what she believed was a sufficient habeas petition, did not receive

any notice that her filing was deficient, and did not again inquire about the status

of her case for 15 months. We conclude that Lewis was reasonably diligent under

the circumstances. See Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir. 2001)



1
  The district court appears to have opined that this administrative error was due to
the deficiencies in Lewis’ initial filing, but it did not conclusively determine how
Lewis’ filing became docketed as a “miscellaneous statutory action” that went
unaddressed for more than one year. We find no reason to afford the district court’s
theory any deference, as Lewis’ Notice of Appeal was clearly sent by a prisoner
challenging a decision of the Nevada Supreme Court and her “sentence upheld.”

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(stating without reservation that 21 months is “not an unusually long time [for a

prisoner] to wait for a court’s decision”).

      REVERSED and REMANDED.




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