Ford v. Hubbard

Citation330 F.3d 1086
Decision Date06 September 2002
Docket NumberNo. 98-80603.,No. 98-56587.,No. 98-80582.,No. 98-56455.,No. 98-80477.,98-56455.,98-56587.,98-80477.,98-80582.,98-80603.
PartiesRichard Herman FORD, Petitioner-Appellant, v. S. HUBBARD, Warden; Daniel E. Lungren, Attorney General, Respondents-Appellees. Richard Herman Ford, Petitioner-Appellant, v. S. Hubbard, Warden; Attorney General of the State of California, Respondents-Appellees. Richard Herman Ford, Petitioner, v. United States District Court for the Central District of California, Respondent, S. Hubbard, Warden, Real Party in Interest. Richard Herman Ford, Petitioner, v. S. Hubbard, Warden, Respondent. Richard Herman Ford, Petitioner, v. United States District Court for the Central District of California, Respondent, S. Hubbard, Warden, Real Party in Interest.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Lisa M. Bassis, Los Angeles, CA, for the petitioner-appellant.

Bill Lockyer, Attorney General for the State of California; David P. Druliner, Chief Assistant Attorney General; Carol Wendelin Pollack, Senior Assistant Attorney General; Steven D. Matthews, Supervising Deputy Attorney General; and Paul M. Roadarmel, Jr., Deputy Attorney General, Los Angeles, CA, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California; Richard A. Paez, District Judge, Presiding. D.C. Nos. CV-97-03385-RAP/SH, CV-98-02556-RAP(SH), CV-98-02557-RAP-SH.

Before PREGERSON, REINHARDT and SILVERMAN, Circuit Judges.

Opinion by Judge REINHARDT.

Dissent by Judge SILVERMAN.

ORDER

The majority opinion filed September 6, 2002, and appearing at 305 F.3d 875 (9th Cir.2002), is hereby amended as follows:

1. slip op. at 13347, line 18 : after "See" and before the citation to James v. Pliler, insert "Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir.2003);"

2. slip op. at 13347, line 18 : after the above new citation to Kelly v. Small, insert the following footnote:"As our dissenting colleague is well aware, in the course of confronting similar issues, the Kelly panel and this panel arrived at the same conclusions at approximately the same time, and filed their respective opinions within days of each other. Because we are part of a larger collegial body, and because it is our general practice to try to make our opinions as consistent as possible, both panels decided to make several harmonizing modifications to their originally filed opinions. Each panel amended its opinion to refer to the other, in part to make the coordination of our dispositions clear. We are, accordingly, puzzled that the dissent should find our action `bizarre.'"

3. slip op. at 13347, line 28 : after "(unless he could show that he was entitled to equitable tolling)," insert "See Valerio v. Crawford, 306 F.3d 742, 770-71 (9th Cir.2002) (en banc), cert. denied, ___ U.S. ___, 123 S.Ct. 1788, 155 L.Ed.2d 695 (2003)."

4. slip op. at 13348, line 23 : after the citation to Anthony v. Cambra, insert ", cert. denied, 533 U.S. 941, 121 S.Ct. 2576, 150 L.Ed.2d 739 (2001)."

5. slip op. at 13348, line 26 : after the citation to Zarvela v. Artuz, insert ", cert. denied, 534 U.S. 1015, 122 S.Ct. 506, 151 L.Ed.2d 415."

6. slip op. at 13350, lines 10-11 : replace "Ford did not do so. As a result, on September 10, 1997" with "On July 28, 1997, Ford instead opted to have the petition dismissed in order to exhaust his unexhausted claims. As a result, on August 5, 1997"

7. slip op. at 13353, n. 4, line 5 : replace "Miranda & Wong Sun" with "Miranda and Wong Sun"

8. slip op. at 13355, lines 14-15 : replace "Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (June 17, 2002) (No. 01-301)." with "Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002)."

9. slip op. at 13356, line 10 : after the citation to James v. Giles and before "see also Freeman v. Page," insert "As we recently said in Kelly v. Small, `The exercise of discretion to stay the federal proceeding is particularly appropriate when an outright dismissal will render it unlikely or impossible for the petitioner to return to federal court within the one-year limitation period imposed by [AEDPA].' Kelly, 315 F.3d at 1070;"

10. slip op. at 13356, line 13 : after the citation to Freeman v. Page, insert ", cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277"

11. slip op. at 13357, n. 6, lines 8-9 : replace "Wyatt v. Terhune, 280 F.3d 1238, 1245-46 (9th Cir.2001)" with "Wyatt v. Terhune, 315 F.3d 1108, 1118-19 (9th Cir.2003)"

12. slip op. at 13358, line 20 : after "(quoting Freeman, 208 F.3d at 577)" and before "Thus, the district court, by failing to inform...", insert "; see also Kelly, 315 F.3d at 1070 (finding that the decision `to stay the federal proceeding is particularly appropriate when an outright dismissal will render it unlikely or impossible for the petitioner to return to federal court within the one-year limitation period imposed by [AEDPA].')."

13. slip op. at 13358, line 36 : after "a denial of the request would likely constitute error," replace "See Zarvela" with "As the First Circuit recently recognized, `[T]here is a growing consensus that a stay is required when dismissal could jeopardize the petitioner's ability to obtain federal review.' Nowaczyk v. Warden, N.H. State Prison, 299 F.3d 69, 79 (1st Cir.2002); see also Zarvela"

14. slip op. at 13359, lines 2-3 : replace "see also James, 269 F.3d at 1126" with "James, 269 F.3d at 1126"

15. slip op. at 13360, lines 30-31 : replace "What the district court should have told Ford," with "Other circuits have also noted the deceptive nature of a dismissal without prejudice when the claims dismissed are time-barred; in Rodriguez v. Bennett, 303 F.3d 435 (2d Cir.2002), for example, the Second Circuit explained that for a petitioner dismissed `without prejudice' after a year in federal habeas proceedings, `the `without prejudice' provision was an illusion; petitioner could never succeed in timely refiling the petition because he would already be time-barred.' Rodriguez, 303 F.3d at 439.[¶] We have recognized a district court's obligation to avoid misleading petitioners. In Valerio v. Crawford, 306 F.3d 742 (2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1788, 155 L.Ed.2d 695 (2003), the en banc court instructed the district court to inform a petitioner when claims to be dismissed `without prejudice' would actually be time-barred. See Valerio, 306 F.3d at 770-71. This simple step helps avoid the unnecessary forfeiture of petitioners' constitutional rights. Here, what the district court should have told Ford."

16. slip op. at 13361, line 7 : after "choice between the two options. See, "and before the citation to James, insert" Valerio, 306 F.3d at 770-71 (finding that the district court must inform the petitioner of a potential time-bar before the petitioner chooses whether to amend his mixed petition, in order to make that choice meaningful);"

17. slip op. at 13361, n. 7, line 14 : after "absent equitable tolling," and before "To do otherwise," insert "See Valerio, 306 F.3d at 770-71."

18. slip op. at 13363, line 30 : after the citation to Van Tran v. Lindsey, insert ", cert. denied, 531 U.S. 944, 121 S.Ct. 340, 148 L.Ed.2d 274, overruled on other grounds by Lockyer v. Andrade, ___ U.S. ___, ___, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)."

19. slip op. at 13364, n. 10 : replace n. 10 with "Compare Anthony, 236 F.3d at 574 (holding that the district court's outright dismissal of Anthony's mixed petition without having adequately informed him of his options was `improper') and discussion supra Sections II.A. & II.B. (explaining why Ford's initial habeas petitions were improperly dismissed) with Anthony, 236 F.3d at 574 n. 1 (stating that the dismissal of the mixed habeas petitions in Green, Van Tran, and Henry were `proper')."

20. slip op. at 13364, n. 11, lines 1-3 : replace "See Jorss, 266 F.3d at 957 n. 1 (emphasizing that the petitioner in Green `accepted' the proper dismissal of his mixed petition). Similarly, the petitioners in Van Tran and Henry" with "The petitioners in Green, Van Tran and Henry"

21. slip op. at 13366-67, n. 14, lines 11-14 : replace "; Jorss v. Gomez, 266 F.3d 955, 957-58 (9th Cir.2001) (holding that the district court's erroneous dismissal of Jorss's timely-filed habeas petition as unexhausted constitutes an extraordinary circumstance that equitably tolled AEDPA's statute of limitations)." with". The Fifth Circuit recently found similar circumstances appropriate for equitable tolling in the context of a prisoner's § 1983 suit dismissed ostensibly without prejudice for failure to exhaust administrative remedies. In Clifford v. Gibbs, 298 F.3d 328 (5th Cir.2002), the court recognized the impropriety of a dismissal without prejudice that actually left claims `forever precluded.' Id. at 333. It held that claims should be equitably tolled when the `district court's dismissal ... without prejudice actually operates as a dismissal with prejudice because [the petitioner] is barred from returning to federal court after exhausting his remedies because limitations has already run.' Id. Ford faced the same constraints."

22. slip op. at 13369, line 3 : after the citation to Miranda v. Castro, insert ", cert. denied, ___ U.S. ___, 123 S.Ct. 496, 154 L.Ed.2d 399"

23. slip op. at 13369, n. 18, line 4 : after the citation to Frye v. Hickman, insert ", cert. denied, 535 U.S. 1055, 122 S.Ct. 1913, 152 L.Ed.2d 823 (2002)"

24. slip op. at 13369, n. 18, line 6 : after the citation to Kreutzer v. Bowersox, insert ", cert. denied, 534 U.S. 863, 122 S.Ct. 145, 151 L.Ed.2d 97 (2001)"

25. slip op. at 13369, n. 18, line 9 : after the citation to United States v. Saro, insert ", cert. denied, 534 U.S. 1149, 122 S.Ct. 1111, 151 L.Ed.2d 1005 (2002)"

26. slip op. at 13369, line 7 : replace "Calderon v. United States District Court (Beeler)" with "Calderon v....

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