Rasberry v. Garcia, 03-15854.

• Decision Date: 25 May 2006
• Docket Number: No. 03-15854.,03-15854.
• Citation: 448 F.3d 1150
• Parties: Jackie Ervin RASBERRY, Petitioner-Appellant, v. Rosie B. GARCIA, et al., Warden, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

448 F.3d 1150

Jackie Ervin RASBERRY, Petitioner-Appellant, v. Rosie B. GARCIA, et al., Warden, Respondents-Appellees.

No. 03-15854.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 2006.

Filed May 25, 2006.

Ann C. McClintock, Assistant Federal Defender, Sacramento, CA, for the petitioner-appellant.

Mark A. Johnson and Eric L. Christoffersen, Deputy Attorneys General, Sacramento, CA, for the respondents-appellees.

Appeal from the United States District Court for the Eastern District of California; Gregory G. Hollows, Magistrate Judge, Presiding. D.C. No. CV-01-01907-LKK/GGH.

Before SCHROEDER, Chief Judge, TROTT and KLEINFELD, Circuit Judges.

TROTT, Circuit Judge.

Petitioner, Jackie Ervin Rasberry, appeals the dismissal as untimely of his 28 U.S.C. § 2254 habeas corpus petition. Rasberry contends that he is entitled to equitable tolling because the district court dismissed Rasberry's wholly unexhausted habeas petition when it should have been apparent to the court that Rasberry had accidently omitted from the petition two claims that he had exhausted in state court. Rasberry argues that the district court should have notified him of the two omitted claims, granted him the opportunity to amend his habeas petition to add the claims, and permitted him to employ the hold and abeyance procedure, allowing him to return to state court to exhaust his remaining claims. Alternatively, he argues that his second habeas petition relates back to his timely filed first habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. A district court has no obligation to inform a pro se habeas petitioner of potentially exhausted claims that the petitioner failed to include in his habeas petition. Additionally, Rasberry's second habeas petition does not relate back to his timely filed first habeas petition. Thus, the district court properly dismissed Rasberry's untimely habeas petition.

I

Rasberry is a California state prisoner who was sentenced to fifty years to life imprisonment for two drug convictions. The drug convictions together constituted his third "strike." The sole issue on appeal is the timeliness of Rasberry's current habeas petition.

Rasberry was convicted and sentenced in 1995. On October 22, 1997, the California Court of Appeal affirmed the convictions but remanded to the superior court on sentencing issues regarding Rasberry's prior two strikes. On remand, the superior court imposed the same sentence, and the court of appeal affirmed this sentence on June 22, 1999. The California Supreme Court denied Rasberry's petition for review on August 25, 1999. The ninety-day period for filing a petition for certiorari with the Supreme Court ended on November 23, 1999, which commenced the statute of limitations clock under 28 U.S.C. § 2244(d) for Rasberry's federal habeas petition. Absent tolling, the statute of limitations would expire on November 23, 2000.

On August 6, 2000, well within the limitations period, Rasberry filed pro se his first federal habeas petition. The state moved to dismiss the habeas petition, asserting that all of the claims were unexhausted. On March 30, 2001, the magistrate judge issued a report and recommendation. The magistrate judge found that Rasberry's petition for review to the California Supreme Court contained two claims, but did not include any of the claims that Rasberry asserted in his federal habeas petition. Concluding that all of the claims in the habeas petition were unexhausted, the magistrate judge recommended that the district court grant the state's motion to dismiss. The magistrate judge neither inquired as to whether Rasberry intentionally omitted from his habeas petition the two claims that he had presented to the California Supreme Court, nor notified Rasberry that he could amend his petition to include the two claims.

In a footnote, the magistrate judge did notify Rasberry of the one-year statute of limitations for federal habeas petitions. However, this notice did not attempt to calculate the starting and ending dates for the statute of limitations and therefore did not notify Rasberry that the limitations period had already expired on November 23, 2000. On May 23, 2001, the district court adopted in full the magistrate's report and recommendation and entered final judgment on Rasberry's habeas petition.

On May 10, 2001, even before the district court adopted the magistrate judge's report and recommendation, Rasberry filed a petition for post-conviction relief with the California Supreme Court to exhaust the claims he had presented in his federal habeas petition. The supreme court denied this petition on August 29, 2001, and this decision became final thirty days later on September 28, 2001.

Having exhausted the claims asserted in his original habeas petition, Rasberry returned to federal court. On October 12, 2001, he filed a "First Amen[d]ed Petition." Like Rasberry's original habeas petition, this petition omitted the two claims that he had previously presented to the California Supreme Court on direct review. The clerk of the court did not treat the habeas petition as an amendment of the previously dismissed habeas petition, but instead assigned to it a new case number. After Rasberry filed the habeas petition, the magistrate judge appointed counsel to represent him.

Appellees then moved to dismiss the current habeas petition as untimely. The magistrate judge issued a report and recommendation on December 9, 2002, recommending that the motion to dismiss be granted. Over Rasberry's timely objections the district court adopted the findings and recommendations in full on March 27, 2003, and dismissed the habeas petition as untimely.

Rasberry timely appeals to this court.

II

A

We review de novo the district court's dismissal of a habeas petition for failure to comply with the statute of limitations. Espinoza-Matthews v. California, 432 F.3d 1021, 1025 (9th Cir.2005). A district court's findings of fact underlying a claim for tolling the limitations period are reviewed for clear error. Id.

B

Rasberry contends that an extraordinary circumstance stood in the way of the pursuit of his rights, thereby warranting equitable tolling of the statute of limitations.¹

Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate. Espinoza-Matthews, 432 F.3d at 1026. The petitioner must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005).

We need not address the diligence element because we conclude that no extraordinary circumstance stood in Rasberry's way. Rasberry argues that district courts have an obligation to notify a pro se petitioner of the right to amend a habeas petition to include exhausted claims that the petitioner omitted from the habeas petition—if it is apparent from the record that the petitioner meant to include the claims. According to Rasberry, it is irrelevant whether the habeas petition itself demonstrates an intent to include the omitted claims. Thus, Rasberry contends, the district court's failure to notify him of this right to amend constitutes an extraordinary circumstance. We disagree.

The notice to which Rasberry claims entitlement is unworkable. Rasberry requests that the district court be obligated to (1) intuit the fact that Rasberry unintentionally omitted a claim from his federal habeas petition; (2) notify Rasberry of this omission; (3) advise Rasberry to amend his habeas petition to include the omitted claim, thereby making it a mixed petition; (4) advise Rasberry to again amend his petition to exclude all unexhausted claims; (5) advise Rasberry to request that the court hold his exhausted claim in abeyance while he exhausts his other claims; and, finally, (6) advise Rasberry to amend his petition to add the newly exhausted claims. Such a notice requirement would not only convert the judge into the petitioner's private counsel, but would also require the judge to guess what claims pro se petitioners had actually intended to include in their petitions.

Additionally, such a notice requirement would run counter to the Supreme Court's holding in Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004). In Pliler, the Court reversed our decision requiring district judges to warn pro se petitioners with mixed petitions that their federal claims would be time-barred upon their return to federal court. Id. The Court reasoned that "[d]istrict judges have no obligation to act as counsel or paralegal to pro se litigants," and that requiring the warning "would force upon district judges the potentially burdensome, time-consuming, and fact-intensive task of making a case-specific investigation and calculation of whether the AEDPA limitations period has already run or will have run by the time the petitioner returns to federal court." Id.

District courts have the discretion to hold a mixed petition in abeyance pending exhaustion of the unexhausted claims. Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 1535, 161 L.Ed.2d 440 (2005). We decline to extend that rule to the situation where the original habeas petition contained only unexhausted claims, but the record shows that there were exhausted claims that could have been included. Such an extension would result in a heavy burden on the district court to determine whether a petitioner who files a petition that on its face is unexhausted may have other exhausted claims that could have been raised. Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust. See Jiminez v....