Richard Herman Ford, a California prisoner, appeals the district court's dismissal of his two habeas corpus petitions as time-barred under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d). Both federal habeas petitions were initially timely filed in the district court by Ford proceeding pro se; however, both were "mixed" petitions containing exhausted as well as unexhausted claims. Along with the mixed petitions, Ford filed motions to stay each of them while he exhausted the then-unexhausted claims in state court. The district court gave him the option with respect to both petitions of either dismissing the unexhausted claims and proceeding only with the exhausted claims or dismissing the petitions without prejudice and re-filing after exhaustion of the unexhausted claims. The district court did not, however, inform Ford that it would not have the power to consider his motions to stay the petitions unless he opted to amend them and dismiss the then-unexhausted claims. See James v. Pliler, 269 F.3d 1124, 1126-27 (9th Cir.2001); Calderon v. District Court (Taylor), 134 F.3d 981, 989 (9th Cir.1998). Although the magistrate's orders stated and the district court's orders reiterated that the dismissals were without prejudice, the district court also did not inform Ford that the AEDPA one-year statute of limitations had expired during the pendency of his federal habeas petitions so that, if he chose to dismiss his federal petitions and returned to state court to exhaust all of his claims, he would be time-barred when he attempted to re-file his federal claims (unless he could show that he was entitled to equitable tolling).

Ford, still proceeding pro se, opted to have both petitions dismissed without prejudice and returned to state court to exhaust his remaining claims. When he re-filed his claims in federal court after exhausting all of them, however, the district court dismissed his petitions as time-barred.

We conclude that the district court erred by failing to inform Ford (1) that it could consider his stay motions only if he opted to amend the petitions and dismiss the then-unexhausted claims, and (2) that his federal claims would be time-barred, absent cause for equitable tolling, upon his return to federal court if he opted to dismiss the petitions "without prejudice" and return to state court to exhaust all of his claims. Because Ford's decision to have his timely-filed federal habeas petitions dismissed without prejudice was an uninformed one, we conclude that the district court's dismissal of his initial federal habeas petitions without prejudice constituted prejudicial error.

We next address the district court's dismissal of Ford's second federal habeas petitions as time-barred, hold that the claims that were included in his initial petitions and then re-asserted in his second petitions are not time-barred under AEDPA, and remand them for consideration on the merits. Specifically, we apply Federal Rule of Civil Procedure 15(c) to Ford's second petitions and hold that the second petitions relate back to and preserve the filing date of the initial petitions. See Anthony v. Cambra, 236 F.3d 568, 575-77 (9th Cir.2000). In so doing, we follow the approach taken by the Second Circuit in Zarvela v. Artuz, 254 F.3d 374, 382-83 (2d Cir.2001).

With respect to the claims that were raised for the first time in Ford's second habeas petitions, we affirm the district court's dismissal of the two claims in the "Loguercio" case (No. CV 98-2557), but we vacate the dismissal of the five claims in the "Weed" case (No. CV 98-2556). We remand the additional Weed claims for an evidentiary hearing on equitable tolling. See Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc).

On January 6, 1988, Richard Ford and Robert Anthony Von Villas, both former Los Angeles police officers, were convicted of conspiring to murder John Loguercio and attempting to murder his wife in violation of California Penal Code §§ 182, 187, 664, and robbery, conspiracy to commit robbery, and assault with a firearm in violation of California Penal Code §§ 182, 211, 245(a)(2). Ford was also convicted of attempting to administer an intoxicating agent in violation of California Penal Code §§ 222, 664. On March 11, 1988, he was sentenced to thirty-six years to life in prison.

Ford appealed the judgment and, on October 9, 1992, the California Court of Appeal affirmed his conviction. He appealed to the California Supreme Court, but his petition for review was denied on January 14, 1993. He then filed a petition for a writ of certiorari in the United States Supreme Court, which was denied on June 14, 1993. See Ford v. California, 508 U.S. 975, 113 S. Ct. 2970, 125 L. Ed. 2d 669 (1993).

On April 19, 1997, Ford signed and delivered to the prison authorities a pro se federal habeas corpus petition. His petition was forwarded to the clerk and filed in the United States District Court for the Central District of California on May 5, 1997.1 Ford also filed a motion to stay the federal habeas corpus petition containing exhausted grounds while he exhausted the then-unexhausted state claims. The magistrate judge, realizing that some of Ford's claims had not been exhausted, issued an order giving him the choice of either (1) dismissing the petition without prejudice and re-filing after exhaustion of the unexhausted claims or (2) dismissing the unexhausted claims and proceeding with only the exhausted claims. Under the magistrate's order, if Ford wanted to waive the unexhausted claims and proceed only on the exhausted claims, he was to so notify the court. Ford did not do so. As a result, on September 10, 1997, the magistrate judge issued his report recommending that the district court dismiss the habeas petition without prejudice because it was a partially-exhausted petition under Rose v. Lundy, 455 U.S. 509, 522, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). In his report and recommendations, the magistrate judge stated that the court did not have the discretion to grant Ford's motion for a stay because the court could not stay a mixed petition. On September 11, 1997, the district court adopted the magistrate's report and dismissed Ford's petition, purportedly without prejudice.

On September 29, 1997, Ford filed a state habeas corpus petition in the California Supreme Court. His petition was summarily denied on March 25, 1998. Ford then returned to federal court on April 7, 1998 and filed a second pro se federal habeas corpus petition in the district court.2 On April 29, 1998, the state filed an answer and, on June 5, 1998, the state filed a motion to dismiss Ford's petition as untimely under AEDPA's one-year statute of limitations. On June 17, 1998, Ford filed an opposition to the motion. On June 26, 1998, the magistrate issued a report recommending that Ford's petition be dismissed with prejudice as untimely. Ford filed an objection to the report on July 16, 1998. On July 22, 1998, the district judge adopted the magistrate's report and dismissed the petition as time-barred.

On August 17, 1998, Ford filed a notice of appeal and moved for a certificate of appealability ("COA"). The district court denied his motion for a COA on August 25, 1998. Ford then sought a COA from this court and his motion was consolidated with a similar motion that he filed in the Weed case. See infra Section I.C.

The procedural history of the Weed case is virtually identical. On October 11, 1988, Ford and Von Villas were convicted of first-degree murder and conspiracy to commit murder for killing Thomas Weed in violation of California Penal Code §§ 182, 187, 190.2(a)(1). After the jury dead-locked during the penalty phase of Ford's trial, the trial court sentenced him to life without the possibility of parole on the murder count and stayed a concurrent term of twenty-five years to life on the conspiracy count.

Ford appealed the judgment and, on November 16, 1992, the California Court of Appeal affirmed his convictions. On February 11, 1993, the California Supreme Court issued a summary denial of Ford's direct appeal. Ford filed a petition for a writ of certiorari in the United States Supreme Court, which was denied on October 4, 1993. See Ford v. California, 510 U.S. 838, 114 S. Ct. 118, 126 L. Ed. 2d 83 (1993).

On April 19, 1997, Ford signed and delivered to the prison authorities a pro se federal habeas corpus petition. His petition was forwarded to the clerk and filed in the United States District Court for the Central District of California on May 5, 1997.3 Ford also filed a motion to stay the federal habeas corpus petition containing exhausted grounds while he exhausted the then-unexhausted state claims. As in the Loguercio case, the magistrate judge gave Ford the choice of either (1) dismissing the petition without prejudice and re-filing after exhaustion of the unexhausted claims or (2) dismissing the unexhausted claims and proceeding with only the exhausted claims. The magistrate issued an order, however, in which he stated that the district court did not have the discretion to stay a mixed petition so that the motion to stay the proceedings was denied. Additionally, the order stated that Ford was to notify the court within approximately two and one-half weeks if he wanted to waive the unexhausted claims and proceed only on the exhausted claims. Ford did not so notify the court. As a result, on September 9, 1997, the magistrate judge issued his report recommending that the district court dismiss his habeas petition without prejudice because it was a partially-exhausted petition under Rose, 455 U.S. at 522, 102 S. Ct. 1198. On October 14, 1997, the district court adopted the magistrate's report and dismissed Ford's petition, purportedly without prejudice.

On October 24, 1997, Ford filed a state habeas corpus petition in the California Supreme Court. The petition was summarily denied on March 25, 1998. Ford then returned to federal court and, on April 7, 1998, he filed a second pro se federal habeas corpus petition in the district court.4 The state filed an answer to the petition on April 29, 1998 and then, on May 11, 1998, filed a motion to dismiss alleging that the petition was untimely under AEDPA's one-year statute of limitations. Ford filed an opposition to the motion to dismiss on May 27, 1998 and the state filed its reply on June 1, 1998.

On June 3, 1998, the magistrate judge issued his report recommending that Ford's petition be dismissed with prejudice as untimely. On June 23, 1998, Ford filed an objection to the magistrate's report. On June 30, 1998, the district judge adopted the magistrate's findings, conclusions, and recommendations and dismissed Ford's petition with prejudice. On July 27, 1998, Ford filed a notice of appeal and a motion for a COA. The district court denied the motion on August 3, 1998. Ford then filed a motion for a COA in this court.

On January 22, 1999, we consolidated Ford's two cases — the Weed case and the Loguercio case — and granted his request for a COA on the question whether his federal habeas petitions were timely under AEDPA's one-year statute of limitations, 28 U.S.C. § 2254(d).

We review a district court's decision to dismiss a petition for a writ of habeas corpus, including a dismissal on timeliness grounds, de novo. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999). Because Ford's convictions and sentences in both the Weed and Loguercio cases became final prior to the enactment of AEDPA, Ford had one year from AEDPA's effective date of April 24, 1996 in which to file his federal habeas corpus petitions. See 28 U.S.C. § 2254(d); Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.2001). Thus, absent statutory or equitable tolling, Ford's federal habeas petitions would be timely only if filed prior to April 24, 1997. See id. at 1244 (holding that Federal Rule of Civil Procedure 6(a) applies to the calculation of AEDPA's one-year statute of limitations). In both the Loguercio and Weed cases, Ford's initial federal habeas petitions were timely filed.

Ford signed both of his initial federal habeas petitions on April 19, 1997, five days before his one-year statute of limitations would have run. The petitions were lodged as received by the district court on April 25, 1997 and subsequently filed on May 5, 1997. According to the prisoner's mailbox rule, Ford's petitions are deemed "filed" for purposes of AEDPA's statute of limitations the moment that he delivers them to the prison authorities for forwarding to the clerk of the district court. See, e.g., Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir.2001); Saffold v. Newland, 224 F.3d 1087, 1091 (9th Cir.2000), vacated on other grounds sub nom, Carey v. Saffold, ___ U.S. ___, 122 S. Ct. 2134, 153 L. Ed. 2d 260 (June 17, 2002) (No. 01-301). Because Ford signed both petitions and delivered them to the prison authorities for mailing before April 24, 1997, the petitions were timely filed.

A. The District Court's Failure to Inform Ford About its Ability to Consider his Stay Motions

Along with the habeas petitions, Ford filed motions asking the district court to stay the petitions on the exhausted claims while he returned to state court to exhaust the then-unexhausted claims. The district court correctly stated that it did not have the discretion to stay Ford's mixed petitions. See Rose, 455 U.S. at 509, 102 S. Ct. 1198 (holding that the district court must dismiss a habeas petition containing unexhausted claims); Calderon v. District Court (Gordon), 107 F.3d 756 (9th Cir.1997) (stating that it was error for the district court to stay federal habeas proceedings in order to permit a petitioner who filed a mixed petition to exhaust his unexhausted claims in state court); Greenawalt v. Stewart, 105 F.3d 1268 (9th Cir. 1997) (rejecting an argument that the district court abused its discretion when it dismissed, rather than stayed, a mixed petition and holding that the district court was obligated under Rose to dismiss the mixed petition).5 However, the district court could have entertained Ford's motions for a stay had he opted to dismiss the unexhausted claims from his petitions and proceed with only the exhausted claims. In that case, the district judge could have granted the stay motions, thus permitting Ford to exhaust his then-unexhausted claims in state court. This would have advanced the court's interest in "facilitat[ing] decision on the merits, rather than on pleadings or technicalities." James v. Giles, 221 F.3d 1074, 1078 (9th Cir.2000); see also Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000) (stating that outright dismissal of a mixed federal habeas petition "is not proper when that step could jeopardize the timeliness of a collateral attack"). When Ford returned to federal court, the district judge could then have permitted Ford to amend his originally-filed federal petitions to incorporate the newly-exhausted claims. See, e.g., James, 269 F.3d at 1126-27 (holding that "a district court may, in its discretion, allow a petitioner to amend a mixed petition by deleting the unexhausted claims, hold the exhausted claims in abeyance until the unexhausted claims are exhausted, and then allow the petitioner to amend the stayed petition to add the now-exhausted claims"); Taylor, 134 F.3d at 989 (same); Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir.1993) (holding that the district court has the discretion to stay a habeas corpus petition containing only exhausted claims to give the petitioner time to exhaust several newly-discovered claims in state court).

In this case, however, the district court did not inform Ford, who was proceeding pro se at the time, about the highly technical requirement that he must first dismiss the unexhausted claims and then renew the stay motions that he attempted to make prematurely, despite our past admonition that "[t]he rights of pro se litigants require careful protection where highly technical requirements are involved, especially when enforcing those requirements might result in the loss of the opportunity to prosecute or defend a lawsuit on the merits." Garaux v. Pulley, 739 F.2d 437, 439-40 (9th Cir.1984). We have repeatedly emphasized that a pro se litigant "is entitled to certain procedural protections." James, 269 F.3d at 1126; see also Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (holding that courts must liberally construe pro se pleadings); Johnson v. State of California, 207 F.3d 650, 653 (9th Cir.2000) (same). With respect to pro se pleadings, we have held that "before dismissing a pro se complaint the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992); see also James, 269 F.3d at 1126 ("This court has held that leave to amend, though within the discretion of the trial court, should be guided by the underlying purpose of Rule 15(a) of the Federal Rules of Civil Procedure, which was to facilitate decision on the merits, rather than on technicalities or pleadings."); James, 221 F.3d at 1077 (stating that pro se habeas litigants are entitled to a "statement of the grounds for dismissal and an opportunity to amend the complaint to overcome [any] deficiency unless it clearly appears from the complaint that the deficiency cannot be overcome by amendment" (internal quotations omitted)).6

Here, there was a procedural deficiency — the filing of mixed habeas petitions — that prevented the district court from considering Ford's stay motions. To correct that deficiency, Ford was required to amend his habeas petitions to dismiss the unexhausted claims and proceed with only the exhausted claims, and then seek a hearing on the motions to stay the exhausted claims. Given that Ford was proceeding pro se, the district court was obligated to inform him of his options with respect to his mixed habeas petitions: to advise him that it would have the power to consider his stay motions only if he opted to proceed with his exhausted claims and dismiss the unexhausted claims. See Zarvela, 254 F.3d at 382.

Had Ford been properly informed of the applicable legal procedure, he in all likelihood would have chosen to amend his petitions and the district court almost certainly would have granted the stay motions. See id. at 380 (holding that granting a stay is "the only appropriate[remedy] where an outright dismissal `could jeopardize the timeliness of a collateral attack'" (quoting Freeman, 208 F.3d at 577)). Thus, the district court, by failing to inform Ford about an option that, if taken, would have permitted the district court to grant his stay motions on the merits, deprived him of "a meaningful opportunity to amend" his pleadings. James, 269 F.3d at 1126. More important, the district court's failure to so inform Ford deprived him of the opportunity to exhaust his unexhausted claims and then amend the stayed petitions to incorporate the newly-exhausted claims, and thus to preserve his right to pursue all of his claims. See Anthony, 236 F.3d at 577 (holding that amendment of habeas petitions under Federal Rule of Civil Procedure 15(c) should be "freely given"). Our analysis is not affected by the fact that the district court has discretion to grant or deny Ford's stay requests, especially where, as here, the discretion is more a matter of form than substance, and a denial of the request would likely constitute error. See Zarvela, 254 F.3d at 380 (explaining why the district court is required to grant a stay when the failure to do so would, as here, forfeit petitioner's federal claims); Freeman, 208 F.3d at 577 (holding that dismissal is "not proper" if it could "jeopardize the timeliness of a collateral attack"); see also James, 269 F.3d at 1126 (holding that it is error to fail to inform a habeas petitioner about his opportunity to amend a partially-exhausted petition even though the decision to grant leave to amend is within the discretion of the trial court). Because the district court's failure to explain the procedural deficiency that precluded it from granting Ford's stay motions deprived Ford of a fair and informed opportunity to have his stay motions heard, to exhaust his unexhausted claims, and ultimately to have his claims considered on the merits, we conclude that the district court's action constituted prejudicial error.

B. The District Court's Failure to Inform Ford that he was Time Barred Under AEDPA

The district court's failure to ensure that Ford had the opportunity to make an informed choice as to whether to amend the petitions extends beyond its failure to inform him of the necessity of doing so in order to have his stay motions considered by the court. The district court further erred when it failed to inform Ford that, on the face of the complaints, he would be time-barred under AEDPA on all of his claims if he either failed to amend his petitions or chose the option of dismissing them and returning to state court to exhaust the unexhausted claims. Although Ford timely filed both of his initial federal habeas petitions, he was only timely by a few days. See supra Section II. Over four months then passed before the magistrate judge issued his findings and recommendations in Ford's two cases. Because AEDPA's one-year limitations period is not statutorily tolled during the pendency of a federal habeas petition, see Duncan v. Walker, 533 U.S. 167, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001), the statute of limitations was still running during that four month period. Thus, when the district court gave Ford the option to dismiss his petitions and return to state court to exhaust his then-unexhausted claims, his time for filing new federal petitions had already expired by more than four months (barring an extension on the ground of equitable tolling). Predictably, when he returned to federal court after having exhausted his claims in state court, his federal petitions were dismissed as time-barred.

When the district court presented Ford with the option of either dismissing his mixed petitions and returning to state court to exhaust his then-unexhausted claims or amending the petitions to proceed with only the exhausted claims, it not only failed to inform him that on the face of the complaints AEDPA's one-year statute of limitations had run on both of his petitions and that his petitions would therefore be barred from re-filing in federal court if he elected the court's first option, but it definitively, although not intentionally, misled him by informing him that if he opted to dismiss the petitions to return to state court to exhaust his claims, the dismissal would be without prejudice. See Tillema v. Long, 253 F.3d 494, 503-04 (9th Cir.2001) ("Because there is no statutory tolling of AEDPA's limitation period during the pendency of federal habeas petitions, the district court's erroneous dismissal of Tillema's petition would, barring some other circumstance, have literally and immediately extinguished his right to federal habeas review. In this case, therefore, it cannot accurately be said that the dismissal of Tillema's petition was, as the court's order stated, `without prejudice.'"); Anthony, 236 F.3d at 573 (recognizing that "AEDPA's one-year statute of limitations... has rendered outright dismissal perilous to some litigants, because petitioners... may find themselves time-barred when they attempt to resubmit their exhausted claims to the district court"). What the district court should have told Ford is that the dismissal, although ostensibly without prejudice, would actually result in a dismissal with prejudice unless he could establish that at the time of dismissal he was entitled to equitable tolling. More generally, as the Second Circuit said in Zarvela, a case in which the AEDPA period had not yet run, the district court, when informing a habeas petitioner of his options with respect to a mixed petition, should "alert the petitioner to the one-year limitations period of AEDPA and to the fact that a portion of that period has already elapsed." Zarvela, 254 F.3d at 382. Indeed, a district court is obligated to do no less. Here, the district court's failure to alert Ford to the current status of his claim under the AEDPA one-year statute of limitations clearly deprived him of the opportunity to make a "meaningful" choice between the two options. See James, 269 F.3d at 1126; Ferdik, 963 F.2d at 1261.7 The error was particularly egregious because it inevitably resulted in the subsequent dismissal of all of Ford's claims as time-barred. See Garaux, 739 F.2d at 439-40 (stating that the protection of a pro se litigant's rights is particularly important when highly technical pleading requirements "might result in the loss of the opportunity to prosecute or defend a lawsuit on the merits."). Because the district court's failure fairly or fully to explain the consequences of the options it presented to Ford deprived him of the opportunity to make a meaningful choice, and as a result subsequently caused the district court to conclude that all of his claims were time-barred, we conclude that the failure constituted prejudicial error.

C. The Effect of the District Court's Failure to Inform Ford of his Options before Dismissing his Initial Federal Habeas Petitions on the Timeliness of his Second Federal Habeas Petitions8

The district court's failure to inform Ford, before dismissing his initial petitions, that his claims would be time-barred under AEDPA if he chose to dismiss the petitions and return to state court, and that the district court could not consider his stay motions and hold the petitions in abeyance unless he opted to proceed with his exhausted claims, necessarily affects our analysis of its decision to dismiss his second petitions, because, had the district court fairly and properly explained Ford's options to him, it is most unlikely that his second petitions would have been dismissed as time-barred. Rather, Ford would almost certainly have amended his mixed petitions by dismissing the then-unexhausted claims, moved for and undoubtedly received a stay of his exhausted claims, exhausted the then-unexhausted claims, and successfully amended the initial petitions to include the newly-exhausted claims. See, e.g., Taylor, 134 F.3d at 989 (describing the three-step process for amending a mixed petition, staying the exhausted claims, and re-filing an amended petition).

Although we cannot place Ford back in the same position that he was in before the erroneous dismissal of his initial petitions, we can ensure that his rights are not unduly prejudiced as a result of the district court's errors. Toward that end, we hold that a pro se habeas petitioner who files a mixed petition that is improperly dismissed by the district court, and who then (following the district court's erroneous legal statements) returns to state court to exhaust his unexhausted claims and subsequently re-files a second petition without unreasonable delay, may employ the amendment procedures of Federal Rule of Civil Procedure 15(c) ("Rule 15(c)") to have the second petition relate back to and preserve the filing date of the improperly-dismissed initial petition.9 In so doing, we follow the approach taken by the Second Circuit in Zarvela, which held under similar circumstances that "[a] pro se litigant should [not] lose his opportunity to present his constitutional challenge to his conviction." Zarvela, 254 F.3d at 382-83.

We have previously held that if a habeas petitioner's mixed petition is properly dismissed without prejudice and he accepts the proper dismissal of that mixed petition, he may not later employ Rule 15(c)'s relation back doctrine to justify an untimely-filed second petition. See Green v. White, 223 F.3d 1001, 1002 (9th Cir.2000); Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000); and Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir.1999). We have also held, however, that if a mixed petition is improperly dismissed without prejudice and the petitioner does not accept the improper dismissal, but elects instead to submit a second petition with only the exhausted claims, the court may treat the second petition as an amendment that relates back to and preserves the original filing date of the mixed petition under Rule 15(c), even if the AEDPA statute of limitations expired prior to the second filing. See Anthony, 236 F.3d at 572-74. Ford's petitions, like the petition in Anthony and unlike the petitions in Green, Van Tran, and Henry, were improperly dismissed by the district court.10 Moreover, in Ford's case, like Anthony's and unlike in Green's, Van Tran's, and Henry's, there was no informed acceptance by the petitioner of the district court's dismissal of the mixed petitions.11 Although the petition that Anthony submitted after his mixed petition was improperly dismissed contained only his exhausted claims, we see no difference for AEDPA statute of limitations purposes between Anthony's action and Ford's decision to rely on the district court's erroneous instruction and to re-submit all of his claims after exhausting the unexhausted ones in state court.12 Thus, we hold that Ford, like Anthony, is entitled to apply Rule 15(c) to his later-filed petitions.13

One problem remains with respect to the remedy available to Ford. We cannot now return the parties to the point where the district court could decide whether to grant a stay to permit Ford to exhaust his claims. Events have over-taken us. Ford has already exhausted all of his claims. As a result, there is no purpose to be served by returning this case to the district court and requiring the district judge to rule on the stay motions. Rather, we agree with the Second Circuit that, "[b]ecause [petitioner's] initially filed petition was timely when filed and should have been stayed, subject to appropriate conditions, and because his prompt trip to and from the state courts satisfied the conditions that should have been included in a stay, the initial petition may be considered on its merits." Zarvela, 254 F.3d at 383. Thus, we treat Ford's initial petitions as if the district court had permitted him to dismiss the unexhausted claims and had then granted his stay motions in order to allow him to exhaust his then-unexhausted claims. Applying Rule 15(c) to Ford's current petitions, we further hold that those claims that were originally included in his initial petitions relate-back and serve to amend the improperlydismissed claims in his initial petitions. Because Ford's initial habeas petitions were filed within AEDPA's one-year statute of limitations, his amended petitions relate back to that filing date and are therefore timely with respect to the claims included in those initial petitions.14

D. Claims Ford Asserts for the First Time in his Second Federal Habeas Petitions

Although we hold that those claims that were originally asserted in Ford's initial petitions and then subsequently reasserted in his second petitions were timely filed under Rule 15(c), the same analysis does not apply to the claims that Ford asserted for the first time in his second petitions. Rule 15(c) specifically states that the claim or defense asserted in the amended pleading must "ar[i]se out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading" (emphasis added). In this case, there were two claims in the Loguercio case and five claims in the Weed case that Ford raised in his second petitions that he did not raise in his initial petitions.15 Because those claims were not set forth in the original pleadings and were not "newly-discovered" claims, see Fetterly, 997 F.2d at 1299-1301,16 we hold that Ford may not invoke Rule 15(c) to add them to his petitions at this late stage. See Anthony, 236 F.3d at 576 (stating that one of the central policies of Rule 15(c) is to "ensur[e] that the non-moving party has sufficient notice of the facts and claims giving rise to the proposed amendment").17

With respect to the claims raised for the first time in the second Weed petition, Ford contends that AEDPA's one-year statute of limitations should be equitably tolled because he did not receive the complete set of his legal papers from his appellate attorney until July of 1997. If the statute of limitations were tolled until July of 1997, Ford's April, 1998 second federal habeas petition would be timely under AEDPA. In support of this equitable tolling claim, Ford submitted letters that he exchanged with his former counsel demonstrating his attempts to obtain his legal papers. The State points out, however, that, according to the correspondence, Ford's counsel first forwarded his file to him in June of 1995 and that Ford waited over two years, until after the AEDPA statute of limitations period had expired, to write his counsel stating that he did not receive a complete set of records. Ford responds by asserting that he was unsuccessfully trying to obtain the complete record from his counsel during the two year period between 1995 and 1997 — a fact that, on the record before us, is uncorroborated by independent evidence. Several courts have held that a lack of access to one's legal papers may constitute an "extraordinary circumstance" that would warrant equitable tolling in instances in which the state is responsible for the unavailability. See, e.g., Whalem/Hunt, 233 F.3d at 1146; Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.2000) (holding that confiscation of legal papers constitutes an "extraordinary circumstance"). Although routine instances of attorney negligence do not generally constitute "extraordinary circumstances" entitling a habeas petitioner to equitable tolling, see, e.g., Miranda v. Castro, 292 F.3d 1063 (9th Cir.2002) (holding that attorney miscalculation of AEDPA limitations period did not merit equitable tolling),18 there are instances in which an attorney's failure to take necessary steps to protect his client's interests is so egregious and atypical that the court may deem equitable tolling appropriate, see, e.g., Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir.1997) (holding that AEDPA's statute of limitations was equitably tolled when the petitioner's counsel unexpectedly moved out of the state and left an unusable work product behind for replacement counsel).19 There are no cases in this circuit determining whether an attorney's failure or refusal to provide a habeas client with important parts of his legal file may rise to the level of "extraordinary circumstances" for purposes of equitable tolling. We prefer not to decide that question here, because the factual record is insufficiently developed. As in Whalem/Hunt, 233 F.3d at 1148, the district court in Ford's case did not give the petitioner an opportunity to amend his petition or expand his declaration and did not hold an evidentiary hearing. Because equitable tolling issues "are highly fact-dependent, and because the district court is in a better position to develop the facts and assess their legal significance in the first instance," id., we remand Ford's additional Weed claims to the district court with instructions that it develop an adequate evidentiary record before again determining whether the statute of limitations should be equitably tolled as to those claims.20

With respect to those claims that were originally raised in Ford's initial federal habeas petitions and then re-filed in his second petitions, we vacate the district court's dismissal of the second petitions as untimely and remand them so that the district court may consider the claims on the merits. With respect to the five claims that were raised initially in Ford's second Weed petition, we vacate their dismissal and remand for the development of a factual record as to whether the statute of limitations should be equitably tolled. With respect to the two ineffective assistance of counsel claims raised for the first time in Ford's second Loguercio petition, we affirm their dismissal.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.

Ford filed an improper mixed petition. The district court correctly offered him the option of either amending the petition by deleting the unexhausted claims and proceeding with only those that had been exhausted, or suffering the dismissal of his entire petition without prejudice. This is exactly what a district court is supposed to do. James v. Pliler, 269 F.3d 1124, 1125-26 (9th Cir.2001). When Ford did not express a choice, the district court again did exactly what it was supposed to do: It dismissed Ford's mixed petition without prejudice. Rose v. Lundy, 455 U.S. 509, 510, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982); James v. Pliler, 269 F.3d at 1125.

Ford never appealed the dismissal of that petition. (He still hasn't.) What he did instead was go back to state court and exhaust his remaining claims. He eventually returned to federal court and filed the new petitions that are the subject of this appeal. By that time, the statute of limitations had run and the petitions were dismissed as time-barred.

This was precisely the situation we upheld in Green v. White, 223 F.3d 1001 (9th Cir.2000). Green's first, timely petition was dismissed without prejudice "apparently because Green had not exhausted his state remedies as to some claims." Id. at 1002. After exhausting his state remedies, Green returned to federal court. Like Ford, his claims had become time-barred. We held:

Green obtained a voluntary dismissal of his earlier habeas petition in order to exhaust his state remedies. A second habeas petition does not relate back to a first habeas petition when the first habeas petition was dismissed for failure to exhaust state remedies. See Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000). When the present petition was filed, there was no pending petition to which the new "petition could relate back or amend." Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir.1999). Therefore, Green's present petition does not relate back to his earlier petition that was dismissed.

Id. at 1003.

Because Green is identical to the present case in all material respects, the majority is forced to concoct a way around it. It does so by holding that Green does not apply if a mixed petition was "improperly dismissed." The majority then posits that the mixed petitions in present case were improperly dismissed because the district court did not warn petitioner that if he re-files, the statute of limitations might return to bite him.

There are several things wrong with this. In the first place, the facts of this case are exactly like Green. The district court in the present case dismissed Ford's mixed petition in the same manner as the district court in Green's case dismissed his. The majority says that Green "accepted" the dismissal without prejudice while Ford did not. This is simply untrue. After their mixed petitions were dismissed, Ford and Green did exactly the same thing — they both headed back to state court without a peep. Ford did not appeal or otherwise complain about the dismissal of his mixed petitions any more than Green did. Ford did not even mention the district judge's failure to advise about the statute of limitations in this appeal until after argument, when we sua sponte called for additional briefing about the dismissal of the original mixed petitions. It is just flat wrong to say that Green accepted the dismissal without prejudice and that Ford did not.

The majority makes much of the point that when the district court dismissed Green's petition, Green still had eleven months of the statute of limitations left to run, while Ford's time had already expired. Therefore, says the majority, the dismissal of Ford's petition without prejudice was tantamount to a dismissal with prejudice. This argument fails to take account of the fact that the district judge will almost never be able to tell, solely from the face of the petition, that the statute of limitations has expired. The calculation of the limitations deadline requires the examination of documents that rarely, if ever, accompany the petition. There is nothing to show that Ford's petition was any different than the usual.

Dismissal without prejudice was not the equivalent of a dismissal with prejudice. Ford was perfectly free to re-file. If thereafter, the statute of limitations had been raised as an affirmative defense, Ford then would have been entitled to assert whatever factual, statutory, and equitable defenses to the statute of limitations he might have had. And if the statute of limitations had not been raised, it would have been waived.

More troubling is the new rule the majority enacts today. Boldly going where no court has gone before, the majority holds that the district court, when complying with James v. Pliler, must incorporate a warning about the statute of limitations. Otherwise, says the majority, the dismissal is "improper." James v. Pliler does not require that, nor does any other case.

It is one thing to construe a pro se petitioner's pleadings liberally, and to require the district court to explain its reasons for dismissing a complaint. It is quite another thing to require the district court judge to act as petitioner's legal advisor. Numerous factors can affect a petitioner's decision to delete unexhausted claims and proceed with an amended petition, rather than accept dismissal without prejudice so that unexhausted claims can be pursued in state court. For example, the meritoriousness of the unexhausted claims is an extremely important factor; so is the fact that the failure-to-exhaust might foreclose those claims forever. The availability of key witnesses is another factor. The statute of limitations is only one element in the equation, and a fact-intensive one at that. Leaving aside the question of the proper role of the court as a neutral arbiter, the district court simply is in no position to identify all of the considerations that pertain. I respectfully suggest that it is the office of the court to fairly and impartially decide the case before it, not to act as the petitioner's paralegal.

The majority places great reliance on the Second Circuit's decision in Zarvela v. Artuz, 254 F.3d 374 (2d Cir.2001), but even that case does not hold that it is error to dismiss a mixed petition without prejudice unless the petitioner is informed about the statute of limitations. In Zarvela, the Second Circuit held that a district judge has the discretion either to dismiss a mixed petition in its entirety, or to dismiss only the unexhausted claims and then stay the petition, conditioned on petitioner's prompt exhaustion and his prompt return to federal court. Id. at 376-77. The district judge allowed a previously withdrawn petition to be "reopened" and therefore, Zarvela's subsequent petition could relate back to the reopened petition which was then extant. Id. at 377. Like James v. Pliler, Zarvela says that a district court faced with a mixed petition should advise a petitioner that his options are either to proceed with only the exhausted claims, or to return to state court. The most that Zarvela says about the statute of limitations is that it might be "useful" for the district court to alert a petitioner to the AEDPA statute of limitations. Id. at 382. This is a far cry from what the majority holds today.

Finally, in footnote 14, my colleagues advise that, "Although we need not reach the question here, Ford would also be entitled to relief under equitable tolling principles." The majority then goes on to explain why, in its view, Ford is entitled to equitable tolling, and finally, in apparent recognition that the issue is not before the court, ends up by saying, "However, because we grant Ford relief on statutory grounds, we do not resolve any equitable tolling claim here." The majority's yearning to resolve Ford's supposed entitlement to equitable tolling is as puzzling as its denial that it is doing that very thing.

The essence of the majority's analysis of the equitable tolling issue it "need not reach" (but does anyway) is its view that Ford was "misled" by the district court's faithful compliance with the procedure set out in James v. Pliler and Rose v. Lundy. Equitable tolling requires that "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999) (quotations omitted). There were no extraordinary circumstances here. That the district court proceeded exactly as instructed in James v. Pliler is not an extraordinary circumstance. I do not share the majority's view that the district court "misled" Ford by following our precedent and the Supreme Court's mandate in Rose v. Lundy.

Ford did not raise this equitable tolling issue in the district court. In fact, he hasn't even raised it in this appeal — not even after we invited supplemental briefing. That alone is reason to keep our mitts off equitable tolling. Jiminez v. Rice, 276 F.3d 478, 481-82 (9th Cir.2001).

Because the district court correctly dismissed the second petitions as time-barred, I would affirm, and therefore respectfully dissent.