Porter Iii v. Ollison

Decision Date26 August 2010
Docket NumberNo. 07-55305.,07-55305.
Citation620 F.3d 952
PartiesJames PORTER III, Petitioner-Appellant, v. Derrick L. OLLISON, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit


Arthur H. Weed, Esq., Santa Barbara, CA, for the petitioner.

David Delgado-Rucci, Kevin Vienna, Supervising Deputy Attorney General, Office of the California Attorney General, San Diego, CA, for the respondent.

Appeal from the United States District Court for the Central District of California, Manuel Real, District Judge, Presiding. D.C. No. CV 06-01118-R.

Before: RONALD M. GOULD and CARLOS T. BEA, Circuit Judges, and WILLIAM T. HART, * District Judge.


Appellant's petition for rehearing is granted in part and denied in part.

The opinion dated July 29, 2010 is hereby amended as follows:

1. On page 10888, fn5, line 3 change to < California Supreme Court habeas>.

2. On page 10891, line 4 from bottom, change to .

3. On page 10891, last line change to

4. On page 10894, replace the last 4 lines with

No further petitions for rehearing or rehearing in banc will be entertained by the court.


HART, District Judge:

James Porter III was found guilty of being a felon in possession of a firearm and sentenced by a California court to a term of incarceration of 25 years to life. In his pro se federal habeas corpus petition, Porter contends that there was insufficient evidence to support his conviction and that his trial counsel was ineffective for failing to object to certain evidence and a jury instruction. The merits of Porter's habeas petition are not before this court. The only question is whether, on preliminary review, the federal habeas petition was properly dismissed as untimely without responsive briefing and an evidentiary hearing. The principal issue is the possible application of equitable tolling based on misconduct by an attorney who resigned from the State Bar of California (the “Bar”) while facing disciplinary proceedings for running a habeas corpus “writ mill.” On preliminary review, it cannot be conclusively determined that the federal petition was untimely. For the reasons that follow, we vacate the district court order denying Porter's habeas petition as untimely and remand on the ground further factual development will be necessary before a conclusion can be made with respect to the timeliness of Porter's petition.


Because the case was dismissed on preliminary review, respondent has not answered the petition. The full state court pleadings and record were not before the district court. Any preliminary determination is limited to Porter's allegations and exhibits, as well as any state court dockets or pleadings that have been located (including on the Internet) and for which it is proper to take judicial notice. See Smith v. Duncan, 297 F.3d 809, 815 (9th Cir.2002); Abeyta v. Giurbino, 607 F.Supp.2d 1123, 1127 n. 5 (C.D.Cal.2009). 1

On December 15, 1999, Porter was found guilty of being a felon in possession of a firearm. On March 16, 2000, he was sentenced to 25 years to life under California's Three Strikes Law. On December 18, 2000, the California Court of Appeal affirmed the conviction and sentence. On March 14, 2001, the California Supreme Court denied review.

The district court took notice of California Supreme Court and California Court of Appeal records for a first round of habeas proceedings. The district court and the parties on appeal, though, did not note that a pro se habeas petition was first filed in the state trial court on August 27, 2001 2 and denied on September 5, 2001. See In re James Porter III, No. SWHSS4984 (Super. Ct. Cal. San Bernardino County). 3 On September 26, 2001, Porter filed a pro se habeas petition in the California Court of Appeal. On October 1, 2001, the petition was summarily denied. See http:// appellatecases. courtinfo. ca. gov/ search/ case/ dockets. cfm? dist= 42& doc_ id= 663436& doc_ no= E 030333 (accessed Nov. 19, 2009). On November 28, 2001, Porter filed a pro se habeas petition in the California Supreme Court which was denied on April 17, 2002. See http:// appellatecases. courtinfo. ca. gov/ search/ case/ main Case Screen. cfm? dist= 0& doc_ id= 1834111& doc_ no= S 102432 (accessed Nov. 19, 2009).

On April 24, 2003, Porter initiated a second round of habeas proceedings by again filing a habeas petition in the San Bernardino Superior Court. He was represented by attorney Richard Dangler. On August 22, 2003, the petition was denied. On December 1, 2003, a habeas petition was filed in the California Court of Appeal. Porter was represented by Dangler. On December 9, 2003, the petition was denied. On February 9, 2005, Porter filed a pro se habeas petition in the California Supreme Court. On December 21, 2005, it was denied.

On October 11, 2006, Porter's pro se federal habeas corpus petition was docketed. He indicates that it was placed for mailing on September 24, 2006. Applying the “mailbox” rule, Ramirez v. Yates, 571 F.3d 993, 996 n. 1 (9th Cir.2009); Jenkins v. Johnson, 330 F.3d 1146, 1149 n. 2 (9th Cir.2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), the federal petition is deemed to have been filed on September 24, 2006.

A magistrate judge reviewed Porter's petition and recommended dismissing it as untimely. The magistrate judge calculated that the time for filing a federal petition had already expired before Porter began his second round of state habeas petitions in April 2003. The magistrate judge held that equitable tolling could not apply because there is no right to an attorney in habeas corpus proceedings and Porter had not shown that he had acted with diligence. In ruling on objections to the report, the district judge noted that the record indicated only a single request by Porter for return of his files from attorney Dangler, which did not constitute diligently pursuing his rights. The court held that, because the time for a federal appeal had already expired in April 2003, any delays in returning the file could not have affected Porter's ability to file a timely petition. Additionally, the district judge rejected actual innocence contentions that are not raised on appeal. A judgment denying the petition was entered on January 8, 2007. Porter thereafter sought reconsideration, which was denied, and timely appealed.

Viewed in a light favorable to petitioner, the facts are as follows: 4 In November 2001, shortly before or after Porter filed his first round habeas petition in the California Supreme Court, Porter (through his girlfriend Keena Love) retained Dangler to represent him in state and/or federal habeas corpus proceedings. Porter turned over to Dangler virtually all of his legal documents, including his copies of trial transcripts. Porter retained copies of some writs or draft writs.

When, in April 2002, the California Supreme Court issued its order denying the pro se habeas petition, Dangler was representing Porter. At this point in time, one round of state habeas corpus petitions had been completed and more than ten months remained to file a timely federal habeas corpus petition. Dangler, however, did not thereafter file a timely federal petition. Instead, more than a year later in April 2003, Dangler initiated a second round of habeas petitions in the California Superior Court. Dangler informed Porter that this second round state petition was necessary in order to exhaust issues that had not been previously raised. However, the Superior Court petition did not raise any issues that had not already been raised on direct appeal or in the prior pro se petitions. This filing by Dangler was consistent with practices of Dangler designed to run up the bills of clients-practices that eventually resulted in disbarment proceedings being initiated against him based on the charge of running a “writ mill.”

One of the documents submitted by Porter in the district court is the decision of the Client Security Fund Commission of the State Bar of California, which ruled that Dangler was required to return the entire $7,250 fee that had been paid to him for representing Porter in the state habeas proceedings. It was found that the fee paid for representing Porter was lost due to the “dishonest conduct” of Dangler. The Fund Commission's decision includes findings, based on the findings in In re White, 121 Cal.App.4th 1453, 18 Cal.Rptr.3d 444 (2004), that Dangler filed more than 50 habeas corpus petitions for which he did not monitor the timeliness of filings, ensure that frivolous claims were not filed, or limit petitions to claims not already raised on direct appeal. Dangler hired law students to draft the petitions, paid them minimal amounts, and did not actually review the petitions before filing them in court. It was found that Dangler would convince clients to pay him to file pleadings he knew or should have known had little chance of success. Dangler's “entire operation was set up to dupe inmates and their vulnerable families into paying him for basically worthless petitions prepared by non-attorneys.”

Dangler contended before the Fund Commission that his failure to act on Porter's behalf from April 2002 through March 2003 was caused by his poor health, but that he had another attorney working in his office at the time. The Fund Commission found, however, that this attorney, Roman Rector, had no experience in habeas corpus proceedings and lacked the knowledge or experience to supervise persons working on habeas corpus petitions.

In June 2004, while disciplinary proceedings were pending against him, Dangler submitted his resignation from the Bar, which the California Supreme Court accepted in August 2004. In September 2004, Porter learned that Dangler had resigned from the Bar. In a letter, Rector offered to take over the case, but for an additional fee, and using Dangler to assist him in a...

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