Defendant is entitled to equitable tolling of the AEDPA deadline for filing his federal writ petition because the district court dismissed his first petition without giving him an opportunity to amend it. Butler was convicted of premeditated attempted murder in Los Angeles in 2005. He pursued a direct appeal in state court; the California Supreme Court denied review on September 13, 2006. Following a series of state court writ petitions, Butler filed his first federal writ petition on October 5, 2008. The petition contained both exhausted and unexhausted claims. The district court summarily dismissed the petition on November 14, 2008 without affording Butler the opportunity to amend the petition to pursue any exhausted claims. He thereafter pursued additional state petitions, returning to federal court on September 21, 2009, at which point his petition was dismissed as untimely. He appealed. Held: Reversed and remanded. Federal courts must dismiss petitions which contain both exhausted and unexhausted claims. But before doing so, the court must offer the defendant an opportunity to amend the mixed petition to delete any unexhausted claims and proceed on exhausted claims. The district court erred in dismissing Butler’s petition without allowing him to amend it, thus he is entitled to equitable tolling from the date of the improper dismissal to the date his new federal petition was filed, assuming the exercise of ordinary diligence. Butler acted diligently by pursuing unexhausted claims in state court before returning to federal court. On remand the district court must determine which claims were exhausted at the time of the erroneous dismissal, relate back to any properly exhausted claim, or are otherwise entitled to equitable tolling.

Butler did not forfeit his equitable tolling argument because his filings sufficiently informed the court he was making that claim. Documents filed by pro se defendants must be liberally construed. Butler referenced Ross v. Lundy (1982) 455 U.S. 509 and stated the erroneous dismissal of his first petition caused him to believe he must exhaust all of his claims in state court before returning to federal court. This was sufficient notice he argued for equitable tolling.