Gaston v. Palmer

• Decision Date: 02 August 2005
• Docket Number: No. 01-56367.,01-56367.
• Citation: 417 F.3d 1030
• Parties: Anthony (Tony) GASTON, Petitioner-Appellant, v. Anna Ramirez PALMER, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

417 F.3d 1030

Anthony (Tony) GASTON, Petitioner-Appellant, v. Anna Ramirez PALMER, Respondent-Appellee.

No. 01-56367.

United States Court of Appeals, Ninth Circuit.

Submitted September 10, 2003.^*

Withdrawn from Submission September 22, 2003.

Resubmitted October 7, 2004.

Filed August 2, 2005.

COPYRIGHT MATERIAL OMITTED

Gerson Simon, Los Angeles, CA, for the petitioner-appellant.

Anthony (Tony) Gaston, California Medical Facility, Vacaville, CA, for the petitioner-appellant.

Kyle Brodie, Michelle J. Pirozzi, AGCA—Office of the California Attorney General, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Nora M. Manella, District Judge, Presiding. D.C. No. CV-00-06612-NM(Mc).

Before: KLEINFELD, WARDLAW, and FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

Anthony Gaston, a California prisoner, seeks review of the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court held that Gaston's petition was time-barred under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). 28 U.S.C. § 2244(d)(1). Gaston concedes that he filed his petition more than one year after the statutory period began to run, but he makes three arguments why the statute should be tolled. We agree with his third argument, and hold, on the facts of this case, that Gaston is entitled to tolling during the time his state court habeas applications were pending. "Pending," in this context, includes the intervals between the dismissal of one state application and the filing of the next one. Because Gaston is allowed tolling for the time his state court applications were pending, his federal habeas petition is timely. We therefore reverse the district court's dismissal of his petition and remand for further proceedings.

I. Background

Gaston was found guilty by a Los Angeles County Superior Court jury of one count of first degree murder in 1994, and sentenced to 29-years-to-life in state prison. He timely appealed. Although Gaston was appointed counsel for his direct appeal, he moved to act as his own attorney. After Gaston was warned, by both his appointed attorney and the California Court of Appeal, of the pitfalls of representing himself on appeal, the motion was granted.

Acting as his own attorney, Gaston neglected to file a brief in support of his appeal. On February 9, 1996, the California Court of Appeal dismissed the appeal for failure to file a brief. Gaston's conviction became final on March 20, 1996, forty days after the dismissal by the Court of Appeal. See Cal. R. Ct. 24(b)(1), 28(e)(1). Because Gaston's conviction became final before the effective date of AEDPA, the statute of limitations for the filing of his federal habeas application began to run on April 24, 1996, the date AEDPA went into effect, and expired (in the absence of tolling) on April 24, 1997. See Carey v. Saffold, 536 U.S. 214, 216-17, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002).

Gaston filed six applications for habeas corpus in the California state courts. He filed his first application in the California Court of Appeal on July 11, 1995. This application was denied on February 27, 1996, before his conviction became final and before AEDPA's statute of limitations began to run. He filed his second application with the Los Angeles Superior Court on June 9, 1997. This application was denied on July 17, 1997. Gaston filed four additional habeas applications in the California state courts, all of which were denied. He filed in the California Supreme Court on August 11, 1997 (denied on April 15, 1998); in Los Angeles County Superior Court on January 22, 1999 (denied on that date); in the California Court of Appeal on February 8, 1999 (denied on April 27, 1999); and in the California Supreme Court on February 28, 2000 (denied on June 2, 2000).

Gaston filed his first federal habeas petition on March 29, 1999. The district court dismissed the petition on March 1, 2000, "without prejudice to the petitioner's right to file a new petition after he has exhausted state remedies with regard to all issues raised therein." As noted above, the California Supreme Court denied Gaston's sixth and final state habeas application on June 2, 2000. A few weeks later, on June 20, 2000, Gaston filed his second, current federal habeas petition.

In support of his federal petition, Gaston submitted sworn statements and physicians' evaluations documenting physical and mental disabilities from which he states he suffers. He states that he "hears voices," that he suffers from severe pain and multiple sclerosis, and that he is paralyzed from the waist down. The record is in conflict as to the extent of these disabilities, but it is undisputed that Gaston has been in a wheelchair and on psychoactive medications since at least early 1996. Gaston claims that his physical and mental disabilities have made it difficult to gain access to, and to use effectively, the prison law library to prepare his federal habeas petition. The case was referred to a magistrate judge who recommended that the district court dismiss the petition as time-barred under AEDPA's statute of limitations. 28 U.S.C. § 2244(d)(1). On de novo review, the district court adopted the magistrate judge's findings and recommendations and dismissed the petition with prejudice.

The district court denied Gaston's application for a Certificate of Appealability. We granted a Certificate of Appealability on the issue of whether the district court properly dismissed his application as untimely. We review issues of law de novo and findings of fact for clear error. Houston v. Roe, 177 F.3d 901, 905 (9th Cir. 1999).

II. Discussion

Gaston makes three arguments for tolling AEDPA's statute of limitations. He argues for equitable tolling; for relief due to an unconstitutional state "impediment," 28 U.S.C. § 2244(d)(1)(B); and for statutory tolling based on "pending" state habeas applications. Id. § 2244(d)(2). We disagree with Gaston's first two arguments, but we agree with his third. We discuss the arguments in order.

A. Equitable Tolling

Gaston argues that he is entitled to equitable tolling based on his self-representation on direct appeal and his physical and mental disabilities. "Equitable tolling will not be available in most cases, as extensions of time will only be granted if `extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Calderon v. United States Dist. Ct. for the Centr. Dist. of Cal. (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds, Calderon v. United States Dist. Ct. for the Centr. Dist. of Cal. (Kelly), 163 F.3d 530, 540 (9th Cir.1998). Gaston bears the burden of showing that equitable tolling is appropriate. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir.2002).

Gaston has not shown any causal connection between his self-representation on direct appeal and his inability to file a federal habeas application. It is true that his failure to file an appellate brief while he represented himself caused his appeal to be dismissed, but he has not shown that his self-representation on appeal caused him to delay filing his federal habeas application. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) (petitioner must show that extraordinary circumstances were the cause of his untimeliness). Gaston's argument based on self-representation is therefore unpersuasive.

Gaston's argument that his physical and mental disabilities constituted an "extraordinary circumstance" is also unpersuasive. The magistrate judge believed, assuming no tolling was available, that the statute of limitations expired on April 23, 1997. On this assumption, the magistrate judge's report, adopted by the district court, found the following:

[Gaston] alleges that he was physically and mentally incapable of filing a petition on time. However, on July 11, 1995, [Gaston] filed a state habeas petition in the California Court of Appeal. Thus it is clear that [Gaston] was physically and mentally capable of preparing and filing a petition on that date. [Gaston] filed a state habeas petition in the Los Angeles County Superior Court on June 9, 1997. Thus, [Gaston] was capable of preparing and filing a petition on that date. [Gaston] does not allege that his physical or mental condition between the two filings was significantly worse than his condition immediately before or after July 11, 1995 and June 9, 1997. Because [Gaston] was capable of preparing and filing state court petitions on July 11, 1995 and June 9, 1997, it appears that he was capable of preparing and filing a petition during the time in between those dates. On the record presently before the court, it appears that [Gaston] was capable of preparing and filing a petition before the expiration of the statute of limitations on April 23, 1997.

The record before the magistrate and district judges was extensive, including numerous physicians' reports and affidavits by Gaston. It was not clear error for the district court to conclude that Gaston's physical and mental condition between July 11, 1995, and June 9, 1997, was not significantly worse than his condition immediately before or after those dates.

The district court therefore properly rejected Gaston's argument for equitable tolling.

B. Impediment under 28 U.S.C. § 2244(d)(1)(B)

Gaston also seeks relief from the statute of limitations based on his contention that the State impeded his filing of a federal habeas petition. Section 2244(d)(1)(B) provides that the statute of limitations "shall run from the . . . date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed[.]" Gaston argues that there were two such state "impediments": the California Court of Appeal's granting his request...