                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 16 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

ZAMEER R. AZAM,                                  No. 12-15656

              Petitioner - Appellant,            D.C. No. 5:10-cv-03900-EJD
  v.

RICK HILL, Warden; et al.,                       MEMORANDUM*

              Respondents - Appellees.

                    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).




        *
             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.1 See 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

       1
        Azam 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.




      2
       We 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-
