Harris v. Carter

• Decision Date: 08 February 2008
• Docket Number: No. 06-35313.,06-35313.
• Citation: 515 F.3d 1051
• Parties: Jerry L. HARRIS, Petitioner-Appellant, v. Sandra CARTER, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

515 F.3d 1051

Jerry L. HARRIS, Petitioner-Appellant, v. Sandra CARTER, Superintendent, Respondent-Appellee.

No. 06-35313.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 11, 2008.

Filed February 8, 2008.

David Zuckerman (argued), Sheryl Gordon McCloud (briefed), Seattle, WA, for the petitioner-appellant.

Gregory J. Rosen, Olympia, WA, Assistant Attorney General, Criminal Justice Division, for the respondent-appellee.

Timothy Foley, Washington, DC, for Amicus Curiae National Association of Criminal Defense Lawyers.

Appeal from the United States District Court for the Western District of Washington; James L. Robart, District Judge, Presiding. D.C. No. CV-05-00885-JLR.

Before: ROBERT R. BEEZER, A. WALLACE TASHIMA, and RICHARD C. TALLMAN, Circuit Judges.

BEEZER, Circuit Judge:

Jerry Harris ("Harris") appeals the district court's order dismissing Harris' 28 U.S.C. § 2254 petition for a writ of habeas corpus as time-barred and concluding that Harris is not entitled to equitable tolling. Harris argues that he is entitled to equitable tolling because he relied on our precedent. We were subsequently overruled by the Supreme Court in a decision that holds that untimely state habeas corpus petitions do not toll the federal statute of limitations for filing a federal petition. Harris' federal habeas petition, which would have been timely under our existing precedent, became time-barred when the Supreme Court decided Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Because we hold that Harris is entitled to equitable tolling, we reverse the judgment, of the district court dismissing Harris' petition as untimely and remand to permit the district court to consider the merits of Harris' petition.

I

On October 21, 1995, Rene Vivas ("Vivas") was shot and killed outside Murdock's Restaurant and Bar in Ferndale, Washington. A Washington Superior Court jury returned a guilty verdict against Harris on a charge of aggravated first degree murder for his role in Vivas' death. The trial court sentenced Harris to life in prison without parole. The Washington Court of Appeals affirmed Harris' conviction. The Supreme Court of Washington denied Harris' petition for review. Harris' conviction became final on May 29, 2000, which was 90 days after the Washington Supreme Court denied Harris' petition for review on direct appeal.¹

Harris filed three successive personal restraint petitions ("PRP") in the Washington courts. On February 20, 2001, 267 days after his conviction became final, Harris filed his first PRP in the Washington Court of Appeals. On August 25, 2003, the Washington Court of Appeals affirmed the conviction. On December 8, 2003, the Commissioner of the Supreme Court of Washington ("Commissioner") entered a ruling denying review.² On February 4, 2004, the Supreme Court of Washington denied Harris' petition to modify the Commissioner's ruling.

Harris filed his second PRP 29 days later, on March 4, 2004. On July 27, 2004, the Commissioner entered a ruling dismissing Harris' petition as untimely because it contained some untimely claims. On October 5, 2004, the Supreme Court of Washington denied Harris' petition to modify the Commissioner's ruling.

Harris filed his third PRP six days later, on October 11, 2004. On March 14, 2005, the Commissioner dismissed Harris' petition as untimely. On June 1, 2005, the Supreme Court of Washington denied Harris' petition to modify the Commissioner's ruling.

II

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Harris had one year from the date his conviction became final to file a habeas corpus petition in federal court. 28 U.S.C. § 2244(d)(1). AEDPA tolls the one-year limitations period while a "properly filed application" for post-conviction review is pending in state court. 28 U.S.C. § 2244(d)(2).

The U.S. Supreme Court holds that untimely state post-conviction petitions are not "properly filed" under AEDPA, and do not toll AEDPA's statute of limitations. Pace, 544 U.S. at 417, 125 S.Ct. 1807. In Harris' case, AEDPA's statute of limitations ran continuously from February 4, 2004 until he filed his federal habeas petition over 15 months later. Harris' federal habeas petition was time-barred under the rule announced in Pace.

Until the Supreme Court decided Pace on April 27, 2005, our circuit law was different. Our precedent stated that an untimely Washington State post-conviction petition was "properly filed" for purposes of § 2244(d) and tolled the statute of limitations while the petition was pending in the state courts. Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir.2001). Under our rule in Dictado, AEDPA's clock was stopped while Harris' second and third PRPs were pending. Under Dictado, Harris would have had 63 days after the Supreme Court of Washington's denial of his third PRP within which to file his federal habeas petition.³

On May 11, 2005, Harris filed his federal habeas corpus petition in the U.S. District Court for the Western District of Washington. Appellee Sandra Carter, (the "State") filed a motion to dismiss arguing that Harris' federal habeas petition was time-barred under Pace. Harris did not contest that his petition would be time-barred under a strict application of Pace, but argued that he was entitled to equitable tolling of the statute of limitations because he relied on controlling Ninth Circuit precedent in waiting to file his federal habeas petition. The magistrate judge issued a report and recommendation concluding that the petition was time-barred and that Harris was not entitled to equitable tolling. The district court adopted the report and recommendation and dismissed Harris' petition. Harris timely appeals.

III

We review de novo the denial of a petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir. 2001). The facts underlying this claim for tolling of AEDPA's limitations period are undisputed. We review de novo whether the statute of limitations should be tolled. Espinoza-Matthews v. California, 432 F.3d 1021, 1025 (9th Cir.2005).

IV

The sole question presented is whether we should strictly apply the Supreme Court's rule announced in Pace on a retroactive basis, or whether we should grant equitable tolling given Harris' reliance on our controlling precedent in Dictado. We hold that equitable tolling should be granted under these circumstances.

A

The parties first dispute which standard we should apply to determine whether equitable tolling is justified in habeas cases such as this one.⁴ The State refers to our observation that equitable tolling is available only when "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time."⁵ See, e.g., Stillman v. LaMarque, 319 F.3d 1199, 1202 (9th Cir.2003). Harris argues that the Supreme Court articulated a new and less strict standard in Pace. In Pace, the Supreme Court says that a habeas petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance has stood in his way." Pace, 544 U.S. at 418, 125 S.Ct. 1807; see also Lawrence v. Florida, ___ U.S. ___, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007).

Our cases since Pace have not settled on a consistent standard. Compare, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir.2006) (citing Pace and applying its standard), with Roy v. Lampert, 465 F.3d 964, 969 (9th Cir.2006) (applying the standard articulated, in Stillman). Our only case to address the issue noted the possibility that Pace "lowered the bar somewhat" compared with our previous standard. See Espinoza-Matthews, 432 F.3d at 1026 n. 5. The case does not decide whether a substantive difference exists between the two standards. See id.

We need not decide whether the Pace standard differs from our previous standard because, as discussed below, the arguable distinctions between the two standards are not at issue in this case.

B

The State argues that Harris does not meet our standard for equitable tolling, set forth above. The State says that Harris failed to file diligently his federal habeas petition in a manner that ensured it would be timely. Harris made a deliberate, tactical choice, the State argues, in waiting to file his federal habeas petition and pursuing post-conviction relief in the state courts. Nothing beyond Harris' own tactical decision, the State further argues, prevented Harris from filing a timely federal habeas petition. The State urges that Harris should be held responsible for the consequences of his own litigation choices, and should not be "rescue[d]" from having made a poor tactical decision.

The State's argument ignores the rationale behind the principle of equitable tolling that formed the basis for the standards articulated in Pace and Stillman. We have stated that the purpose of the equitable tolling doctrine "is to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court." Jones v. Blanas, 393 F.3d 918, 928 (9th Cir.2004). Equitable tolling also serves to "prevent the unjust technical forfeiture of causes of action." Id. Equitable tolling is typically granted when litigants are unable to file timely petitions as a result of external circumstances beyond their direct control. See Stillman, 319 F.3d at 1202. Equitable tolling is typically denied in cases where a litigant's own mistake clearly contributed to his predicament. See Lawrence, 127 S.Ct. at 1085.

The fact that Harris could have filed a timely federal habeas petition at a certain point in time is not dispositive. The critical fact here is that Harris relied in good faith on then-binding circuit precedent in making his tactical decision to delay filing a federal habeas petition. Harris' failure to file a timely petition is not the result of oversight, miscalculation or negligence on his part, all...