Roy v. Lampert

• Citation: 465 F.3d 964
• Decision Date: 12 July 2006
• Docket Number: No. 04-35514.,No. 04-35626.,04-35514.,04-35626.
• Parties: Albert ROY, Petitioner-Appellant, v. Robert O. LAMPERT, Respondent-Appellee. Phillip L. Kephart, Petitioner-Appellant, v. Stan Czerniak, Superintendent, OSP, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

465 F.3d 964

Albert ROY, Petitioner-Appellant, v. Robert O. LAMPERT, Respondent-Appellee.

Phillip L. Kephart, Petitioner-Appellant, v. Stan Czerniak, Superintendent, OSP, Respondent-Appellee.

No. 04-35514.

No. 04-35626.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2005.

Filed July 12, 2006.

Amended September 22, 2006.

Anthony D. Bernstein, Portland, OR, for the appellant.

Erin C. Lagesen, Assistant Attorney General, Salem, OR, for the appellee.

Appeal from the United States District Court for the District of Oregon; John P. Cooney, Magistrate Judge, Presiding. D.C. Nos. CV-01-00861-CO, CV-01-00690-CO.

Before JAMES R. BROWNING, DOROTHY W. NELSON, and DIARMUID F. O'SCANNLAIN, Circuit Judges.

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING/REHEARING EN BANC AND AMENDED OPINION

D.W. NELSON, Senior Circuit Judge.

ORDER

The opinion filed on July 12, 2006, slip opinion at 7625 and published at 455 F.3d 945 (9th Cir.2006) is amended as follows:

Page 7641 of the slip opinion, last words:

replace "[other things]" with "[circumstances other than petitioner's lack of diligence]"

Page 7643 of the slip opinion, last two sentences of the first full paragraph:

replace: "Kephart was in fact told by his attorney that the statute of limitations did not expire until December of 1997, eight months after the actual expiration date. Kephart's attorney told him of the date he believed to be the expiration date for filing his habeas claim after Kephart was already in Arizona, and therefore after the point at which he could have confirmed or disproved what his attorney informed him about AEDPA." with "Likewise, Kephart asserted that he had had "no ... notice of the AEDPA" either from the prison library or from any other source, and that he "was not able to gain knowledge of the one year limitation period for filing under [AEDPA]" until after he had filed his state post-conviction petition and had been returned to Oregon."

With these amendments, the members of the panel that decided this case voted unanimously to deny the petition for rehearing. Judge O'Scannlain voted to deny the petition for rehearing en banc. Judges Browning and Nelson recommended denial of the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc.

The petition for rehearing and the petition for rehearing en banc are denied. No further petitions for rehearing or rehearing en banc may be filed.

OPINION

Albert Roy and Phillip Kephart were both convicted of crimes in Oregon state court. The federal district court dismissed both of their federal habeas petitions as untimely because they were filed after the one-year statute of limitations period created by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). We consolidated their cases to answer a single question: Are Roy and Kephart entitled to an evidentiary hearing regarding their claim that the statute of limitations should be equitably tolled because they were transferred to an Arizona prison facility that, they allege, had a woefully deficient law library?

Because we decide that Roy and Kephart made sufficient allegations that they pursued their claims diligently and faced extraordinary circumstances once they were transferred to the Arizona prison facility, we remand this case to the district court to hold an evidentiary hearing.

I

Albert Roy pleaded guilty to two counts of first-degree sodomy in Oregon state court and was convicted of those two counts. Roy appealed this conviction to the Oregon Court of Appeals, which affirmed his conviction on August 23, 1995. Roy did not appeal either to the Oregon Supreme Court or the United States Supreme Court. Accordingly, his direct appeal became final on November 1, 1995.

During this time, Roy was imprisoned in Oregon, but on February 7, 1996, Roy was transferred to a private prison facility in Florence, Arizona. Roy remained at this Arizona facility until April 25, 1997, at which time he was returned to the Oregon prison facility. On February 28, 1997, while he was at the Arizona facility, Roy filed a petition for habeas relief in the United States District Court for the District of Arizona, complaining of his transfer to Arizona and the difficulties it presented for his efforts to continue to pursue a challenge to his conviction. The Arizona court transferred this case to the Oregon district court on August 28, 1998, and the Oregon district court eventually dismissed the case.

On October 22, 1997, while his initial attempt to file a federal habeas petition was pending, and after Roy was transferred back to the Oregon prison facility, Roy filed a petition for post-conviction relief in Oregon state court. This petition was denied. The Oregon Court of Appeals affirmed this denial without an opinion, and the Oregon Supreme Court denied review. The decision of the Oregon Supreme Court became final on December 5, 2000. On May 23, 2001, Roy filed the federal habeas petition leading to this appeal.

Philip Kephart was also convicted in Oregon state court. Kephart was convicted of four counts of second-degree assault, one count of first-degree assault, one count of attempted first-degree assault, and two counts of criminal mistreatment. The Oregon Court of Appeals affirmed his convictions on direct appeal. Kephart petitioned for review in the Oregon Supreme Court, and the Oregon Supreme Court remanded his case to the Oregon Court of Appeals, which again affirmed his convictions. After the Oregon Court of Appeals affirmed his convictions on remand, Kephart did not appeal either to the Oregon Supreme Court or to the United States Supreme Court, and therefore his direct appeal became final on December 8, 1995.

Like Roy, Kephart was initially imprisoned in Oregon, and was later transferred to the correctional facility in Florence, Arizona (on February 7, 1996). On May 6, 1997, Kephart filed his petition for post-conviction relief in Oregon state court, and shortly thereafter, on July 14, 1997, Kephart was returned to an Oregon prison. Kephart's petition for state post-conviction relief was denied on July 17, 1997. The Oregon Court of Appeals affirmed this decision, and the Oregon Supreme Court declined to review the case, a decision that became final on October 23, 2000. Kephart then filed his federal habeas petition, the petition at issue in this appeal, on May 14, 2001.

In both Roy and Kephart's cases, the district court adopted the suggestions of the magistrate judge, and eventually dismissed the habeas petitions as untimely. This court granted a certificate of appealability on the issue of "whether the district court properly denied appellant's federal habeas corpus petition as untimely and denied equitable tolling without an evidentiary hearing despite conflicting affidavits on a factual issue."

II

This court reviews de novo the district court's refusal to consider a petition for habeas corpus on grounds of tardiness. Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir.2001). The decision by the district court to decline to order an evidentiary hearing is reviewed for abuse of discretion. Tapia v. Roe, 189 F.3d 1052, 1056 (9th Cir.1999).

III

We first address whether the district court was correct to consider Roy and Kephart's federal petitions untimely, and we conclude that it was correct that their petitions were untimely.

Pursuant to AEDPA, a prisoner may only file a federal habeas petition within one year from the conclusion of state direct review. 28 U.S.C. § 2244(d). This limitations period is tolled while a state prisoner is exhausting his claims in state court, Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir.1999), and when a prisoner is trying to pursue state post-conviction remedies. Id. at 1006. However, the statute of limitations is not tolled "from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed." Id. The statute of limitations period is also not tolled after state post-conviction proceedings are final and before federal habeas proceedings are initiated. See 28 U.S.C. § 2244(d)(2) (stating that the limitations period does not run while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending" (emphasis added)).

While the AEDPA statute of limitations was running in this case between the end of state direct proceedings and state post-conviction proceedings, as well as between the time of the end of their state post-conviction appeals and the filing of their federal habeas petition, only the former time period was longer than the one-year statute of limitations established by AEDPA. In other words, if the time period while Roy and Kephart were in Arizona is equitably tolled, then Roy and Kephart will not have exceeded AEDPA's one-year statute of limitations.

For both Roy and Kephart, the final dispositions of their direct appeals occurred before the effective date of AEDPA, and therefore they "were required to file any remaining federal petition for which they were otherwise eligible within one year of AEDPA's effective date, that is, by April 24, 1997." Laws v. Lamarque, 351 F.3d 919, 921 (9th Cir.2003). Roy filed his petition for state post-conviction relief on October 22, 1997, a full 551 days after April 24, 1996, well beyond the one-year limitation mandated by AEDPA.

But for this time period, when Roy filed his federal habeas petition, he would have been within the statute of limitations period provided by AEDPA. Roy's state post-conviction appeal became final on January 3, 2001, and Roy filed his federal habeas petition on June 11, 2001, meaning that if the time between his state direct and post-conviction appeals had been equitably tolled, only the time between the termination of his state post...