Grant v. Swarthout

• Decision Date: 07 July 2017
• Docket Number: No. 13-55584,13-55584
• Citation: 862 F.3d 914
• Parties: Willie Ulysess GRANT, Petitioner-Appellant, v. Gary SWARTHOUT, Warden; Xavier Becerra, Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

862 F.3d 914

Willie Ulysess GRANT, Petitioner-Appellant,

v.Gary SWARTHOUT, Warden; Xavier Becerra, Attorney General, Respondents-Appellees.

No. 13-55584

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2016 Pasadena, California

Filed July 7, 2017

Tony Faryar Farmani (argued), Farmani APLC, San Diego, California, for Petitioner-Appellant.

Kevin Vienna (argued) and Mathew Mulford, Deputy Attorneys General; Julie L. Garland, Senior Assistant Attorney General; Office of the Attorney General, San Diego, California; for Respondents-Appellees.

Before: Stephen Reinhardt, A. Wallace Tashima, and Richard A. Paez, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

This case involves a prisoner's right to equitable tolling for the period during which he was prevented from completing his federal petition for habeas corpus by an "extraordinary circumstance." If equitable tolling applies, his habeas petition is timely. If it doesn't, he will likely spend the rest of his life in prison.

FACTS

Willie Ulysess Grant was found guilty of committing first-degree murder, including an enhancement for personally using a firearm in the commission of the crime, on December 14, 2006. He was sentenced to two consecutive terms of twenty-five years to life. The California Court of Appeal affirmed his sentence on September 16, 2008. The California Supreme Court denied his petition for review on December 10, 2008. Grant timely filed a petition for certiorari, which was denied by the U.S. Supreme Court on October 5, 2009. On that date, the one-year statute of limitations for filing a federal habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") began to run. 28 U.S.C. § 2244(d)(1). Grant was also required to file any petition for state collateral review within that one-year period, but the running of the period was statutorily tolled while the state courts were actively processing his petitions.

On September 25, 2010, 354 days after his petition for certiorari was denied, Grant constructively filed a pro se petition for state postconviction relief with the San Diego County Superior Court. This filing commenced the statutory tolling of the AEDPA statute of limitations. Id. § 2244(d)(2). Grant's state postconviction relief efforts continued until November 16, 2011, when the California Supreme Court denied his state habeas petition. This decision ended the period of statutory tolling.¹

Grant received notice that his state petition had been denied five days later, on November 21, 2011. At that time, there were seven days remaining in Grant's one-year filing period under AEDPA.² Grant then "immediately requested a ‘prison account certificate’ from the prison trust office," on November 21. This certificate was required in order to file a federal habeas petition in forma pauperis . See Rules Governing Section 2254 Cases in the United States District Courts, R. 3(a)(2) (requiring a motion, affidavit, and "certificate from the warden or other appropriate officer of the place of confinement showing the amount of money" in the petitioner's prison account in order to proceed in forma pauperis ). The certificate was issued to Grant's correction counselor on December 2, 2011. According to Grant, this delay "was because of the Thanksgiving holiday weekend." Grant finally received the certificate from his counselor on December 19.³ Grant constructively filed his federal pro se petition for a writ of habeas corpus on that same day. Along with his petition, he filed the required declaration and prison certificate to proceed in forma pauperis . The state moved to dismiss the petition, arguing that it was untimely under AEDPA's one-year statute of limitations. Grant contends that the period of time between November 21, when he requested the prison account certificate, and December 19, the date on which he received it, was equitably tolled. If he is correct, his federal habeas petition was timely filed.

The district court adopted the report and recommendation of the magistrate judge, which recommended that the petition be dismissed as untimely. It held that Grant was not entitled to equitable tolling because he had not shown that he was diligent throughout the entire 354 days prior to his filing of his state petition for postconviction relief and that such a showing was necessary to warrant equitable tolling.⁴

DISCUSSION

Under AEDPA, state prisoners have a one-year statutory period to file a federal application for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). This period is in effect a statute of limitations that commences on the latest of four dates designated by statute:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) 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, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Id. Here, the applicable period commenced as provided in paragraph (A). The statutory period is tolled ("statutory tolling") while the prisoner pursues state postconviction relief. Specifically, the one-year statute of limitations is statutorily tolled from the time a state collateral challenge is filed until the state postconviction proceedings are final. See Roy v. Lampert , 465 F.3d 964, 968 (9th Cir. 2006). The statute of limitations is not tolled, however, "from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed." Id. (alteration in original) (citation omitted).

It is well established that a prisoner who files his federal petition for writ of habeas corpus after AEDPA's one-year statute of limitations has expired may be entitled to equitable tolling. H o llan d v. F l ori d a , 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). If a prisoner can demonstrate that he is entitled to equitable tolling for a certain period of time, that period will be subtracted from the total number of days that have passed. If, after those days are subtracted, less than 365 days have passed, the prisoner's petition for habeas corpus will be accepted as timely. The grounds for equitable tolling "are highly fact-dependent." Sossa v. Diaz , 729 F.3d 1225, 1237 (9th Cir. 2013) (citation omitted). They do require, however, the occurrence of what we label an "extraordinary circumstance." Miles v. Prunty , 187 F.3d 1104 (9th Cir. 1999) ("We will permit equitable tolling of AEDPA's limitations period ‘only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.’ " (quoting Calderon v. U.S. Dist. Court , 163 F.3d 530, 541 (9th Cir. 1998) )). We have said, however, that we do not require actual impossibility; rather, equitable tolling is appropriate where "it would have technically been possible for a prisoner to file a petition, but a prisoner would have likely been unable to do so." Gibbs v. Legrand , 767 F.3d 879, 888 (9th Cir. 2014) (quoting Harris v. Carter , 515 F.3d 1051, 1054 n.5 (9th Cir. 2008) ). "At bottom, the purpose of equitable tolling is to ‘soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having [her] day in court.’ " Rudin v. Myles , 781 F.3d 1043, 1055 (9th Cir. 2015) (alteration in original) (citation omitted).

I.

A.

The specific question in this case is whether, when a petitioner would otherwise be able to file a timely petition for federal habeas corpus but an extraordinary circumstance occurs that prevents timely filing, the court may deny equitable tolling solely because it believes that by scheduling his work differently prior to the unanticipated occurrence, the petitioner would have been able to file his federal petition earlier, specifically within in the one-year statute-of-limitations period. Put differently, the question is whether equitable tolling may be denied because a court decides that the prisoner acted unreasonably by failing to work diligently on his case throughout the entire portion of the one-year statute-of-limitations period that preceded the occurrence of the "extraordinary circumstance"?

The seminal case on this issue is Valverde v. Stinson , 224 F.3d 129 (2d Cir. 2000). In that case, the Second Circuit held that a federal habeas petitioner was "not ineligible for equitable tolling simply because he waited until late in the limitations period to file his habeas petition." Id. at 136. The court explained that a petitioner "would have acted reasonably by filing his petition any time during the applicable one-year period of limitations." Id. (emphasis added). It then reasoned that a petitioner "should not be faulted ... for failing to file early or to take other extraordinary precautions early in the limitations period against what are, by definition, rare and exceptional circumstances that occur later in that period." Id. ; see also United States v. Gabaldon , 522 F.3d 1121, 1126 (10th Cir. 2008) ("[To hold] that [a habeas petitioner] could and should have filed ... before his documents were seized would not only arbitrarily shorten his limitations period, but also would unduly penalize him for making the effort to research his claims thoroughly and set forth his arguments in as compelling a manner as possible."). We agree with the Second Circuit that a petitioner is entitled to use the full one-year statute-of-limitations period for the filing of his state and federal habeas petitions and that he need not anticipate the...