Franzen v. McDaniel , 137 F. App'x 62 ( 2005 )

MEMORANDUM^**

Nevada state prisoner Bruce L. Franzen appeals the district court’s denial of his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the dismissal of a § 2254 petition on timeliness grounds, see Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir.2001), and we vacate and remand.

Appellant contends that his current untimely § 2254 petition relates back to his previous, timely-filed § 2254 petition. However, we conclude that the district court did not err in dismissing his prior petition because it contained exhausted and unexhausted claims, see Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), and accordingly, his current petition does not relate back, see Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir.2000) (finding a newly-filed habeas petition relates back to an earlier filed petition where the earlier mixed petition was erroneously dismissed).

In the alternative, appellant contends that he is entitled to statutory tolling based on a conceded error by the Nevada Supreme Court. The district court did not reach this issue. He alleges the state-created error impeded the filing of his federal habeas petition, and tolling is warranted until the date the Nevada Supreme Court filed its remittitur correcting the error. See 28 U.S.C. § 2244(d)(1)(B). If true, appellant’s petition would be timely. We vacate and remand to the district court for consideration of this and, if timely, the petition on the merits. See Jorss v. Gomez, 311 F.3d 1189, 1193 (9th Cir.2002).

VACATED and REMANDED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.