Smith v. Davis, No. 17-15874

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBEA, Circuit Judge
Citation953 F.3d 582
Parties Anthony Bernard SMITH, Jr., Petitioner-Appellant, v. Ron DAVIS, Respondent-Appellee.
Decision Date20 March 2020
Docket NumberNo. 17-15874

953 F.3d 582

Anthony Bernard SMITH, Jr., Petitioner-Appellant,
v.
Ron DAVIS, Respondent-Appellee.

No. 17-15874

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc September 24, 2019 San Francisco, California
Filed March 20, 2020


BEA, Circuit Judge:

Anthony Smith is imprisoned in the custody of the California Department of Corrections and Rehabilitation having been convicted of burglary, robbery, and forcible oral copulation. He appeals the district court’s denial of his petition for the writ of habeas corpus. The denial was ordered solely because Smith’s petition was not timely filed. Smith acknowledges he filed his petition more than two months after the expiration of the applicable statute of limitations, see 28 U.S.C. § 2244(d)(1), but

953 F.3d 586

argues he was entitled to extend the limitations period by equitable tolling for the 66 days between the date his conviction became final in the state appellate court and the date when his attorney informed him of that unsuccessful appeal and provided him the state appellate court record. The district court found Smith was not diligent in his use of the 10 months remaining in the limitations period after he received the case file from his attorney and that the delay in receiving his record had not been the cause of his untimely filing. The district court refused to apply equitable tolling to toll the statute of limitations.

Smith asks us to reverse the district court and to extend the period of the statute of limitations by those 66 days. He asks us to adopt a flat rule: a "stop-clock" approach to equitable tolling so that whenever a petitioner is impeded from filing his petition by extraordinary circumstances while the time period of a statute of limitations is running out, he may simply add the time during which he was so impeded to extend the period of the statute of limitations, regardless whether he was reasonably diligent in filing his petition after the impediment was removed. What Smith requests is an application of equitable tolling that is contrary to Supreme Court precedent and also contrary to traditional principles of equity, in which "each case as it arises must be determined by its own particular circumstances." McQuiddy v. Ware , 87 U.S. (20 Wall.) 14, 19, 22 L.Ed. 311 (1874). The rule he asks us to apply is something much more akin to the uniform, forward-looking actions of a legislature. But, of course, we are not a legislature; we are a court. Because, as a court, we must follow the precedents that require we employ principles of traditional equity and evaluate whether Smith was reasonably diligent in filing his habeas petition before we equitably toll the statute of limitations, we decline to adopt his suggested approach. Therefore, we affirm the district court’s order denying Smith’s habeas petition because Smith failed to exercise reasonable diligence during the 10 months available after he received his record from his attorney and before the time allowed by the statute of limitations expired.

I. Background

Smith was convicted in California state court in 1998 of one count of residential burglary, two counts of robbery, and one count of forcible oral copulation. He was sentenced to 25-years-to-life. Smith was granted federal habeas relief in 2010 for the forcible oral copulation conviction, but after a retrial he was again convicted of forcible oral copulation and then again sentenced to 25-years-to-life in 2012. Smith appealed his conviction through the California courts, which denied his appeals. His state appeals culminated when the California Supreme Court issued a summary denial of his petition for review on March 12, 2014. Smith did not seek review in the United States Supreme Court, and his conviction became final on June 10, 2014, when the time for filing a petition for a writ of certiorari expired.

Smith was represented in his California state appeals by a court-appointed attorney. After the California Supreme Court denied Smith’s petition for review in March 2014, Smith alleges the next correspondence he had with his attorney was a letter received on August 15, 2014, which informed Smith that his California state appeal had been denied and that the attorney’s representation of Smith was complete. Smith’s attorney also returned the appellate record to Smith in the same mailing. Smith acknowledges that his attorney’s letter was not the first time he learned that his appeal had been denied,

953 F.3d 587

and that his family had informed him of the denial three months earlier, around May 10, 2014. After Smith learned that the California Supreme Court had denied his appeal, Smith sent his attorney a letter the next day, requesting an update from the attorney and the immediate return of his appellate record so that Smith could prepare a federal habeas petition. When Smith did not receive a timely response to his letter, he filed a complaint with the California State Bar in June 2014. It appears that this complaint prompted Smith’s attorney to contact Smith and return his appellate record in August 2014.

Appearing pro se, Smith filed his habeas petition in the district court for the Eastern District of California on August 14, 2015, asserting nearly identical claims to those he had made to the California Supreme Court. California moved to dismiss Smith’s petition as untimely filed. According to the State, the one-year statute of limitations allowing for state prisoners to file federal habeas petitions had expired on June 10, 2015, one year after Smith’s conviction became final. Smith filed an opposition arguing that he was entitled to equitable tolling from June 10 to August 15, 2014 and claimed the statute of limitations did not expire until August 15, 2015, the day after his petition was filed. Smith argued he was entitled to equitable tolling for that 66-day period because he had been abandoned by his attorney, did not have access to his appellate record, and had been diligent in his attempts to contact his attorney to remedy the situation.

The magistrate judge assigned to Smith’s case in the district court issued findings and recommended that California’s motion to dismiss be granted. The magistrate judge noted that even though Smith did not receive his appellate record until two months after the time period prescribed by the statute of limitations had begun to run, he still had ten months thereafter in which to file his habeas petition on time. According to the magistrate judge, the "petitioner has offered no explanation as to why he was unable to file his federal petition during this ten month period"; instead it appeared "it was petitioner’s own lack of diligence during the ten months after he received the appellate record, and not [the attorney’s] delay in forwarding the records, that was the cause of petitioner’s untimeliness." While the magistrate judge was "convinced that petitioner acted diligently to obtain his appellate record" from his attorney, she concluded that "there is no evidence that the delayed receipt of the file made timely filing impossible." The district judge adopted the findings and recommendations of the magistrate judge and denied the petition. Smith appealed.

A three-judge panel affirmed the district court, but we granted rehearing en banc to resolve a conflict within our cases about the nature of the diligence required for a petitioner to be eligible for equitable tolling. See Smith v. Davis , 740 Fed. App'x 131 (9th Cir. 2018), reh’g en banc granted , 931 F.3d 829 (9th Cir. 2019).

II. Standard of Review

We review de novo the dismissal of a federal habeas petition as untimely, including "whether the statute of limitations should be equitably tolled." Fue v. Biter , 842 F.3d 650, 653 (9th Cir. 2016) (en banc) (quoting Corjasso v. Ayers , 278 F.3d 874, 877 (9th Cir. 2002) ). When, as here, the district court has not made factual findings "we accept the facts as alleged by the petitioner" for the purpose of determining whether, if proven, the allegations are sufficient to merit equitable tolling. Id. (alteration and internal quotation marks omitted).

953 F.3d 588

III. Discussion

A. AEDPA and Equitable Tolling

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") subjects federal habeas corpus petitions filed by state prisoners to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). As relevant here, the time provided by the statute of limitations begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A).1 The statute does provide that while "a properly filed application for State post-conviction or other collateral review ... is pending," the time period of the statute of limitations does not run. Id. § 2244(d)(2).2

In addition to this statutory tolling provision, the one-year statute of limitations is also subject to the doctrine of equitable tolling. Holland v. Florida , 560 U.S. 631, 634, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). A petitioner seeking equitable tolling bears the burden of establishing two elements: " ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing." Id . at 649, 130...

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  • Walden v. Shinn, No. 08-99012
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 12, 2021
    ...his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Smith v. Davis , 953 F.3d 582, 588 (9th Cir. 2020) (en banc) (cleaned up). Here, the district court's independent finding, in denying the motion to file an amended petition, th......
  • United States v. Campbell, 16-10128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 16, 2022
    ...Socop-Gonzalez v. Immigr. & Naturalization Serv., 272 F.3d 1176, 1186 n.8 (9th Cir. 2001), abrogated on other grounds by Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) (en banc) ("[F]ailure to raise an issue before an original appellate panel does not preclude an en banc panel's jurisdiction ......
  • United States v. Campbell, 16-10128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 16, 2022
    ...v. Immigr. & Naturalization Serv. , 272 F.3d 1176, 1186 n.8 (9th Cir. 2001), abrogated 26 F.4th 889 on other grounds by Smith v. Davis , 953 F.3d 582 (9th Cir. 2020) (en banc) ("[F]ailure to raise an issue before an original appellate panel does not preclude an en banc panel's jurisdiction ......
  • Jones v. Shinn, CV-19-5258-PHX-DJH (JFM)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • August 20, 2021
    ...but the petitioner bears the burden of showing that equitable tolling is appropriate.”). In the en banc decision in Smith v. Davis, 953 F.3d 582 (9th Cir.), cert. denied, 141 S.Ct. 878, 208 L.Ed.2d 440 (2020) the Ninth Circuit resolved a discrepancy between prior decisions and eschewed the ......
  • Request a trial to view additional results
157 cases
  • Walden v. Shinn, No. 08-99012
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 12, 2021
    ...his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Smith v. Davis , 953 F.3d 582, 588 (9th Cir. 2020) (en banc) (cleaned up). Here, the district court's independent finding, in denying the motion to file an amended petition, th......
  • United States v. Campbell, 16-10128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 16, 2022
    ...Socop-Gonzalez v. Immigr. & Naturalization Serv., 272 F.3d 1176, 1186 n.8 (9th Cir. 2001), abrogated on other grounds by Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) (en banc) ("[F]ailure to raise an issue before an original appellate panel does not preclude an en banc panel's jurisdiction ......
  • United States v. Campbell, 16-10128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 16, 2022
    ...v. Immigr. & Naturalization Serv. , 272 F.3d 1176, 1186 n.8 (9th Cir. 2001), abrogated 26 F.4th 889 on other grounds by Smith v. Davis , 953 F.3d 582 (9th Cir. 2020) (en banc) ("[F]ailure to raise an issue before an original appellate panel does not preclude an en banc panel's jurisdiction ......
  • Jones v. Shinn, CV-19-5258-PHX-DJH (JFM)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • August 20, 2021
    ...but the petitioner bears the burden of showing that equitable tolling is appropriate.”). In the en banc decision in Smith v. Davis, 953 F.3d 582 (9th Cir.), cert. denied, 141 S.Ct. 878, 208 L.Ed.2d 440 (2020) the Ninth Circuit resolved a discrepancy between prior decisions and eschewed the ......
  • Request a trial to view additional results

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