Sossa v. Diaz

• Decision Date: 10 September 2013
• Docket Number: No. 10–56104.,10–56104.
• Citation: 729 F.3d 1225
• Parties: Armando Jose SOSSA, Petitioner–Appellant, v. Ralph M. DIAZ, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

729 F.3d 1225

Armando Jose SOSSA, Petitioner–Appellant,

v.Ralph M. DIAZ, Warden, Respondent–Appellee.

No. 10–56104.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2013.

Filed Sept. 10, 2013.

Jan B. Norman, Los Angeles, CA, for Petitioner–Appellant.

Michael Katz, Deputy Attorney General, State of California, Los Angeles, CA, for Respondent–Appellee.

Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. 2:08–cv–01549–SVW–FMO.

Before: RICHARD A. PAEZ and PAUL J. WATFORD, Circuit Judges, and MATTHEW F. KENNELLY, District Judge.^*

OPINION

PAEZ, Circuit Judge:

State prisoner Armando Jose Sossa, proceeding pro se, filed a petition for a writ of habeas corpus in the district court challenging the constitutionality of his second degree robbery conviction. The district court dismissed the petition on the ground that it was untimely. We hold that Sossa is entitled to equitable tolling on the ground that he relied on the assigned magistrate judge's order extending the filing deadline beyond the statutory limitation. We further hold that Sossa has sufficiently alleged that he was precluded from filing his habeas petition within the time period provided in the magistrate judge's order to warrant further development of the record. Therefore, we reverse the district court's judgment and remand for further proceedings.

I. BACKGROUND

Sossa was convicted of second degree burglary in 2004. He was sentenced to thirty-five years to life, and the California Court of Appeal affirmed his conviction and sentence. On November 2, 2005, the California Supreme Court denied Sossa's petition for review. For purpose of the one-year limitations period of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1)(A), Sossa's conviction became final ninety days later on January 31, 2006. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999).

On October 22, 2006, Sossa filed a pro se petition for a writ of habeas corpus in the Los Angeles Superior Court seeking to vacate his conviction and sentence, which was denied in November 2006.¹ In April 2007, he next filed a pro se habeas petition in the California Court of Appeal, which was denied in May 2007. Several months later, in August 2007, Sossa filed a pro se habeas petition in the California Supreme Court, which was denied on February 13, 2008.

On February 24, 2008, Sossa filed a pro se petition for a writ of habeas corpus in the district court. To file his petition, Sossa used the form petition provided by the district court. In the section of the form petition where specific claims for relief must be enumerated, Sossa wrote “See Attached Petition” but failed to include any attachment. On March 12, 2008, the magistrate judge dismissed the petition, for failure to state a claim, with leave to amend within thirty days (by April 11, 2008).

On April 6, 2008, Sossa filed a motion for an extension of time to file his First Amended Petition (“FAP”), alleging generally that there were “circumstances out of the control of petitioner which will hamper his ability to make amendments” to the FAP. Three days later, on April 9, 2008, the magistrate judge granted Sossa's motion for an extension of time to amend his petition, setting the new filing deadline as May 9, 2008. On May 5, 2008, Sossa filed a second motion seeking to extend the deadline, stating that “[d]ue to[ ] circumstances out of the physical control of petitioner such as institutional lock-downs and conflicting library operational hours, petitioner will need” another 30 days to complete and file his FAP. On May 8, 2008, the magistrate judge granted Sossa's motion, setting the new deadline as “June 9, 2008,” and further stating: “No further extensions will be granted. Failure to file a [FAP] will result in dismissal of the case.” (bold in original).

Before the June 9 deadline, on June 7, 2008, Sossa filed a motion seeking an additional five-day extension because prison conditions had prevented him from assembling his petition and the necessary facilities would not reopen until June 10—the day after the deadline set by the magistrate judge. The magistrate judge received and rejected Sossa's motion on June 11, 2008, ordering it not to be filed and citing his prior order that “no further extensions will be granted.”

Also on June 11, 2008, Sossa filed his FAP. In response, Respondent (“the State”) filed a motion to dismiss the petition on the ground that the FAP was untimely. Sossa opposed the motion. The magistrate judge issued a report and recommendation (“R & R”) recommending that the FAP be dismissed with prejudice as untimely. He determined that the judgment in Sossa's criminal case became final on January 31, 2006 and AEDPA's one-year statute of limitations expired on January 31, 2007, absent any tolling. He then “assum[ed] without deciding that [Sossa] is entitled to statutory tolling for his complete round of state collateral review from October 22, 2006, to February 13, 2008.” “When [Sossa] filed his habeas petition in the Los Angeles County Superior Court on October 22, 2006, 264 days of his one year statute of limitations period had run [since his conviction became final on January 31, 2006]. Accordingly, [Sossa] had until May 24, 2008, 101 days after February 13, 2008, to file the instant Petition.” (bold in original). He thus concluded that Sossa's original February 24, 2008 petition was timely.

However, the magistrate judge also found that the FAP, filed on June 11, 2008, did not “relate back” to the filing of the original petition because the original petition “failed to set forth any claims for relief.” ² Therefore, he found that the FAP was filed 18 days after the May 24, 2008 deadline and was thus untimely. He further found that Sossa was not entitled to equitable tolling due to prison lock-downs and lack of access to the law library.

Sossa filed a motion seeking discovery that would support his objections to the R & R, which the magistrate judge denied. Without discovery, Sossa filed objections to the R & R. For the first time, he argued that he was entitled to equitable tolling based on his reliance on the magistrate judge's orders extending the habeas filing deadline. The district court adopted the R & R and dismissed the FAP with prejudice. The district court “exercise[d] its discretion and decline[d] to consider” Sossa's argument that he relied on the magistrate judge's orders extending the filing deadline. The district court then proceeded to conclude that “even on the merits” Sossa's arguments for equitable tolling fail.³

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review a final judgment of the district court under 28 U.S.C. § 1291. “We review de novo the district court's denial of a habeas corpus petition for failure to comply with the one-year statute of limitations” of AEDPA. Espinoza–Matthews v. California, 432 F.3d 1021, 1025 (9th Cir.2005) (citing Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir.2003)). “If the facts underlying a claim for tolling of the habeas limitations period are undisputed, the question whether the statute of limitations should be tolled is reviewed de novo. But otherwise a district court's findings of fact are reviewed for clear error.” Id. (citing Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003)).

III. DISCUSSION

A state prisoner must file his federal habeas petition within one year of when his conviction becomes final. 28 U.S.C. § 2244(d)(1). This one-year statute of limitations may be statutorily tolled. Id. at § 2244(d)(2) (“The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”).

Beyond statutory tolling, federal habeas petitioners may also be entitled to equitable tolling of the statute of limitations. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010) (holding that “ § 2244(d) is subject to equitable tolling in appropriate cases”); Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir.), cert. denied,––– U.S. ––––, 133 S.Ct. 769, 184 L.Ed.2d 508 (2012). “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Ford, 683 F.3d at 1237 (quoting Holland, 130 S.Ct. at 2562) (internal quotation marks omitted). “The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Id. (quoting Holland, 130 S.Ct. at 2565) (internal quotation marks omitted).

After Holland, we have continued to rely on our previous equitable tolling cases in which we held that equitable tolling is available “only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time and the extraordinary circumstances were the cause of [the prisoner's] untimeliness.” Id. (quoting Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir.2010) (quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003))) (alterations in Ford ) (internal quotation marks omitted); see also Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir.2011) (citing Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir.2009)). “[T]he requirement that extraordinary circumstances ‘stood in his way’ suggests that an external force must cause the untimeliness, rather than, as we have said, merely ‘oversight, miscalculation or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling.’ ” Waldron–Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.2009) (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir.2008)).

Nonetheless, “[g]rounds for equitable tolling under § 2244(d) are ‘highly fact-dependent.’ ” Laws, 351 F.3d at 922 (quoting ...