                              UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




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