Khosrow Parmaei v. Rick Jackson, No. 09-7682 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7682 KHOSROW PARMAEI, Petitioner Appellant, v. RICK JACKSON, Administrator, Respondent Appellee.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 Vacated and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. unique circumstances equitable tolling, of we this case grant a warrant Finding that the an certificate application of 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 § 2244(d) (2006). equitable tolling brought by This where state prisoners, limitations a prisoner see period has is 28 U.S.C. to prevented been subject 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 2 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 erroneous with the clerk s 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. help to elapsed Parmaei, by the as time the the Further, the directives were of no statute of limitations directives issued, had already 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. 3 We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. VACATED AND REMANDED 4
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