The Court of Appeals rejected petitioner’s claim of equitable tolling, raised for the first time on appeal, because it had not been raised below and was not a pure question of law. In this habeas action predicated on ineffective assistance of counsel, petitioner had filed no appeal in state court. When respondent moved to dismiss, petitioner requested that the habeas action be stayed to permit him to exhaust his state remedies and the district court did so. After the California Supreme Court denied petitioner’s state habeas petition, the district court dismissed the habeas action with prejudice, finding that petitioner’s state remedies must have been exhausted at the time the habeas petition was filed. Because that was not done here, and because by the time the California Supreme Court denied petitioner’s state habeas, the one year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) had been exceeded, dismissal with prejudice was warranted. The Court of Appeals affirmed the dismissal, holding that the tolling provision of the AEDPA applies only during the time state post-conviction relief is pending. In so holding, the Ninth Circuit rejected the Second Circuit’s holding in Walker v. Artuz (9th Cir. 2000) 208 F.3d 357, 359-61. In Walker, the court held that the statute of limitations was tolled, not only during the pendency of the state action, but also upon the filing of the federal habeas petition. Here, the federal habeas petition was filed on the 365th day. Allowing for tolling during the time the state habeas was pending, petitioner still could not have timely filed a new habeas petition, so the dismissal with prejudice was proper.