Lott v. Mueller

Decision Date19 September 2002
Docket NumberNo. 00-55805.,00-55805.
Citation304 F.3d 918
PartiesRobert Lee LOTT, Petitioner-Appellant, v. Glenn A. MUELLER, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Darlene M. Ricker, Ricker & Mercado, Beverly Hills, CA, for the petitioner-appellant.

Renee Rich, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; J. Spencer Letts, District Judge, Presiding. D.C. No. CV-97-08555-JSL-EE.

Before SCHROEDER, Chief Judge, CUDAHY,* and McKEOWN, Circuit Judges.

Opinion by Judge CUDAHY; Concurrence by Judge McKEOWN.

CUDAHY, Circuit Judge.

On July 23, 1993, Robert Lott was sentenced by a California state court to a nineteen-year prison term for narcotics trafficking. During the last several years, Lott has been pursuing his post-conviction remedies in both state and federal court. In the case now before us, Lott appeals the decision of the district court that his federal habeas petition was untimely under 28 U.S.C. § 2244(d)(1). Because our case law as applied to the particular facts of this case entitles Lott to equitable tolling, we vacate the decision of the district court and remand for further proceedings.


The sole issue before us is whether federal review of the appellant's petition for a writ of habeas corpus is barred by the one-year period of limitation contained in 28 U.S.C. § 2244(d)(1). Lott's federal habeas petition was originally filed on November 20, 1997. After extensive proceedings related to exhaustion of state remedies, the district court eventually referred Lott's habeas petition to a magistrate judge. On November 17, 1999, the magistrate judge filed a report and recommendation concluding that Lott's petition was untimely by at least thirty-seven days. The district court subsequently adopted these findings and recommendations and dismissed Lott's habeas petition with prejudice on February 23, 2000. On April 28, 2000, the district court granted Lott's request for a certificate of appealability, pursuant to 28 U.S.C. § 2253, on the issue whether a federal habeas petition, which is later dismissed for failure to exhaust state remedies, tolls the period of limitation under § 2244(d)(2). On October 17, 2000, this court broadened the certificate of appealability to include the issues of equitable and statutory tolling.

The Supreme Court's decision in Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001), has foreclosed Lott's timeliness argument under § 2244(d)(2) by restricting the benefit of tolling to exhaustion of state, as opposed to federal, remedies. Therefore, this appeal is confined to the two remaining tolling arguments. First, Lott asserts that he is entitled to equitable tolling for the eighty-two (82) day period when a state-imposed impediment prevented him from accessing his legal files. Alternatively, Lott claims that he is entitled to statutory tolling under 28 U.S.C. § 2244(d)(1)(B) for the same eighty-two day period covering the same denial of access to legal files.

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA took effect on April 24, 1996, and imposes a one-year statute of limitation for prisoners in state custody to file a federal petition for writ of habeas corpus. See 28 U.S.C. § 2244(d)(1).1 A state prisoner challenging a non-capital state conviction or sentence must file a federal petition within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). State prisoners, the relevant judgment against whom became final prior to the date of enactment of the AEDPA, had until April 24, 1997, one year from the effective date of the AEDPA, to file a petition. See Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 406, 151 L.Ed.2d 308 (2001). Because the California Supreme Court denied Lott's petition for direct review on December 13, 1995 (i.e., before the AEDPA took effect), the April 24, 1997, deadline applies to Lott.

However, two additional factors extend the April 24, 1997, filing period. First, the AEDPA provides that a prisoner is entitled to tolling for the pendency of a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim." 28 U.S.C. § 2244(d)(2); see also Artuz v. Bennett, 531 U.S. 4, 5, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). According to the district court's calculation, this period of pendency of his state petition extended Lott's filing deadline an additional 161 days. Second, this court has recently determined that the denial of a habeas petition by the California Supreme Court becomes final thirty days after the denial is filed; thus, for purposes of calculating tolling under § 2244(d)(2), the case is still "pending" until thirty days after the denial has been filed. See Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir.2001) (per curiam) (quoting Rule 24 of the California Rules of Court, "A decision of the Supreme Court becomes final 30 days after filing.").

After these tolling considerations have been taken into account, the State maintains that Lott's allowable time for filing a federal petition "was tolled until October 31, 1997, 190 days after April 24, 1997." Since Lott's federal habeas petition was in fact filed on November 20, 1997, the State asserts that Lott's petition was untimely by twenty days. However, Lott claims that he is entitled to the benefit of the "mailbox rule," which provides that a legal document is deemed filed on the date a petitioner delivers it to the prison authorities for filing by mail. See Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999) (applying mailbox rule in context of habeas petition). Accepting Lott's representation that he "completed, copied, and mailed his petition on November 7, 1997," his petition was still untimely by seven days.

However, during the statutory period for filing his federal habeas petition, Lott was a claimant and witness in an unrelated civil court matter in Sonoma County, California. On two occasions in 1997, Lott alleges that he was temporarily transferred from Folsom prison to another state detention center in order to facilitate necessary court appearances. The first transfer lasted thirty-seven days (from April 6 to May 22), and the second lasted forty-five days (from August 12 to September 26). During these two transfers, which totaled eighty-two days, Lott claims that he was deprived of access to legal materials except for certain files related to the civil proceedings for which he was being transferred; in fact, files related to his federal habeas petition were kept in storage at Folsom prison.

To support his allegations, Lott has submitted a copy of the prison transfer log, which details Lott's movements by date. He has also provided an affidavit by James Nichols, who is an inmate worker in Receiving and Shipping at Folsom. The declaration by inmate Nichols includes the following excerpt:

It is the policy and practice of Folsom that inmates being transported out to court be allowed to transport with only the legal materials necessary to the case for which they are being transported. Inmate Lott was transported by Tri-County Transportation system. Tri County will not transport a prisoner with more than a single box. Inmate Lott was not allowed to transport with any legal materials other than those pertaining to the Sonoma case. All of his remaining property was stored in the R & R Annex until his return.

The state asserts that Lott presented this tolling claim and supporting evidence for the first time in his traverse. Therefore, because the district court ruled that Lott's habeas petition was untimely, the state has not yet had an opportunity to investigate or present evidence potentially contradicting the factual basis of Lott's claim and supporting submissions.


A district court's decision to dismiss a petition for writ of habeas corpus under 28 U.S.C. § 2254 is reviewed de novo. See Fields v. Calderon, 125 F.3d 757, 759-60 (9th Cir.1997), cert. denied, 523 U.S. 1132, 118 S.Ct. 1826, 140 L.Ed.2d 962 (1998). Dismissal of a habeas petition on statute of limitation grounds is also reviewed de novo. See Ellis v. City of San Diego, 176 F.3d 1183, 1188 (9th Cir.1999). The district court's findings of facts are reviewed for clear error. See Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir.1996). Questions of law are reviewed de novo. See Canales v. Roe, 151 F.3d 1226, 1228-29 (9th Cir.1998).


In this circuit, equitable tolling of the filing deadline for a habeas petition is available "only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miles, 187 F.3d at 1107 (quoting Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir.1998) (en banc), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999)). In addition, "[w]hen external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling may be appropriate." Miles, 187 F.3d at 1107.

In the case now before us, Lott alleges that, while he was away from Folsom, he was denied access to the legal files related to his federal habeas petition for eighty-two days. On September 26, 1997, when Lott claims that his files were made available to him following his second temporary transfer, the final date for filing his federal habeas petition was by no means clear. Prior to our ruling in Bunney, 262 F.3d at 974, a California state prison inmate could have reasonably believed that his federal habeas filing deadline was no longer being tolled as of...

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