Smith v. Ratelle

• Decision Date: 26 March 2003
• Docket Number: No. 99-55824.,99-55824.
• Citation: 323 F.3d 813
• Parties: James Edward SMITH, Petitioner-Appellant, v. J.M. RATELLE; B. Kathleen Blanchard, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

323 F.3d 813

James Edward SMITH, Petitioner-Appellant, v. J.M. RATELLE; B. Kathleen Blanchard, Respondents-Appellees.

No. 99-55824.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2000.

Submission Vacated December 18, 2000.

Resubmitted March 20, 2003.

Filed March 26, 2003.

Maria E. Stratton, Federal Public Defender, and Mark R. Drozdowski, Deputy Federal Public Defender, Los Angeles, CA, for the petitioner.

Bill Lockyer, Attorney General of California, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Theresa A. Cochrane, Deputy Attorney General, Los Angeles, CA, for the respondent.

Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. No. CV-98-05747-R-EE.

Before: BROWNING, PREGERSON, and BEEZER, Circuit Judges.

Opinion by Judge JAMES R. BROWNING; Dissent by Judge BEEZER.

JAMES R. BROWNING, Circuit Judge.

California state prisoner James E. Smith appeals the dismissal of his habeas corpus petition as barred by the one-year statute of limitations of the Anti Terrorism and Effective Death Penalty Act (AEDPA). We hold that Smith is entitled to equitable tolling because the district court erroneously dismissed his earlier, timely habeas petition without first giving him an opportunity to file an amended petition as an alternative to dismissal. We therefore reverse and remand.

I.

Smith was convicted of first degree burglary and sentenced to 22 years in prison. His conviction was affirmed on direct appeal, and the California Supreme Court denied review on November 2, 1994.

On March 7, 1996, Smith filed a pro se habeas corpus petition in federal district court. The petition contained seven claims, only two of which had been presented to the state courts on direct appeal. Shortly after AEDPA was signed into law on April 24, 1996, the district court dismissed this first petition for failure to exhaust state remedies. The court told Smith that he could either submit a new petition after judgment that omitted the unexhausted claim, or exhaust his state remedies and file a new, fully-exhausted petition in federal court. Smith returned to state court to exhaust the claims that the district court had found unexhausted.

Smith returned to federal court on February 4, 1997, by filing a photocopy of his original handwritten habeas petition. The district court properly gave Smith several opportunities to amend his petitions for clarity and to supplement his claims, but denied his request for appointed counsel. The state filed a motion to dismiss, arguing again that Smith had failed to exhaust certain claims. Smith opposed this motion.

On November 3, 1997, the district court adopted the magistrate's report and recommendation and dismissed Smith's second petition without prejudice because a claim of juror misconduct remained unexhausted.¹ The court again told Smith that after dismissal he could file a new petition that withdrew the unexhausted claim or return to state court and exhaust that claim. However, AEDPA's one-year limitations period had expired on August 13, 1997, while the state's motion to dismiss was pending,² and the district court did not to file a federal habeas petition. See Ford v. Hubbard, 305 F.3d 875, 882 tell Smith that he could withdraw his unexhausted claim as an alternative to dismissal. The court immediately entered final judgment.

Following the court's suggestion, Smith returned to state court to exhaust his one unexhausted claim.³ The California Supreme Court denied his petition on April 29, 1998. Smith filed a third, fully-exhausted federal petition on July 17, 1998, reasserting each of his earlier claims. The state again moved to dismiss, this time on the ground that this final petition was barred by the statute of limitations. The district court held that this petition was untimely and dismissed it with prejudice.

The district court granted a certificate of appealability on the question of whether Smith's petition "related back" to the filing date of his first petition. We granted a motion to expand the COA to include the issue of whether Smith was entitled to equitable tolling,⁴ and we requested supplemental briefing on the effect of Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). We review the district court's order dismissing the petition de novo. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999).

II.

Under 28 U.S.C. § 2254(b)(1), a habeas petitioner may not obtain relief on a "mixed" petition that contains both exhausted and unexhausted claims. In Rose v. Lundy, 455 U.S. 509, 520-21, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), however, the Supreme Court recognized that a petitioner had several options to avoid a procedural default: first, he could amend the petition to drop the unexhausted claims and then obtain a decision on the merits of his remaining, exhausted claims; second, he could withdraw his petition, return to state court to exhaust his unexhausted claims, and then file a new habeas petition with fully-exhausted claims.

The Lundy opinion "contemplated that the prisoner could return to federal court after the required exhaustion." Slack v. McDaniel, 529 U.S. 473, 486, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). However, under AEDPA's new statute of limitations, 28 U.S.C. § 2244(d)(1), a state prisoner generally must file his habeas petition within one year after his state conviction became final. As we explained in Anthony v. Cambra, 236 F.3d 568 (9th Cir.2000), this limitations period may effectively bar a petitioner from exercising his options under Lundy:

Prior to the advent of AEDPA, dismissal without prejudice to the filing of a new, exhausted petition caused no detriment to the petitioner, because there was no time limitation on the filing of a federal habeas petition. AEDPA's one-year statute of limitations, however, has rendered outright dismissal perilous to some litigants, because petitioners such as Anthony may find themselves time-barred when they attempt to resubmit their claims to the district court.

Id. at 573. See also James v. Pliler, 269 F.3d 1124, 1126 (9th Cir.2001) ("To dismiss a petition for curable deficiencies may, therefore, preclude a petitioner from obtaining federal habeas review altogether, even where the dismissal was without prejudice.").

A.

The district court was apparently unaware of the hazards posed by AEDPA's statute of limitations. Smith's second petition was timely, but contained one unexhausted claim. Operating under the pre-AEDPA interpretation of Lundy, the district court's order suggested that dismissal was only a minor procedural setback:

Following dismissal, petitioner will have the option of: (1) submitting to this court a new habeas petition that does not contain any unexhausted claims (which would risk forfeiture of these claims under Rule 9(b) of the Rules Governing § 2254 Cases in the United States District Courts); or (2) exhausting his state remedies and then submitting to this court a petition which contains all of the claims raised in the present proceeding.

(Emphasis in original). Because the limitations period had expired before dismissal, however, it was impossible (absent equitable tolling) for Smith to file another timely petition. The district court's order presented Smith with a Hobson's choice — if he followed either suggested option, he would face an inevitable procedural default.⁵ Not having been advised of this, Smith dutifully returned to state court to exhaust his sole unexhausted claim. When he returned to federal court with a completely-exhausted petition, he belatedly discovered that all of his claims were now time-barred.

This unfortunate predicament was entirely avoidable. Because the statute of limitations may prevent a petitioner from submitting a new petition under Lundy, we have long held that district courts must allow petitioners to amend their mixed petitions and withdraw their unexhausted claims as an alternative to suffering dismissal. See Anthony, 236 F.3d at 572. Moreover, in light of the severe consequences of a dismissal under AEDPA, the complexity of habeas law, and our preference for decisions on the merits, we have recognized that district courts must take special care to advise pro se habeas petitioners of their right to strike unexhausted claims. See Ford, 305 F.3d at 883-84; James, 269 F.3d at 1126; Tillema v. Long, 253 F.3d 494, 503 (9th Cir.2001).

The district court erred by summarily dismissing Smith's second habeas petition and entering final judgment without first giving him an informed opportunity to withdraw his one unexhausted claim before dismissal. Although the court told Smith that he could withdraw his unexhausted claim through a new petition after dismissal and final judgment, this option was illusory: because the limitations period had already expired, any new petition would have been untimely. Smith unwittingly faced the same dilemma as the petitioner in James v. Giles, 221 F.3d 1074 (9th Cir.2000):

We have long held that a federal habeas petition has a right to amend a mixed petition to delete unexhausted claims as an alternative to suffering a dismissal. James unquestionably had a right to amend his petition to delete his three unexhausted claims. But he never had an informed opportunity to do so. By dismissing James' petition without leave to amend at the same time that it explained why it was doing so, the district court failed to provide James with notice of his petition's deficiencies in time for him to seek leave to amend.

Id. at 1077 (citations omitted). Had Smith been given an accurate explanation of his options — either to withdraw the one unexhausted claim before dismissal or to forfeit any opportunity for federal habeas review — he could have salvaged his six properly-exhausted claims. See F...