U.S. v. Gabaldon

• Decision Date: 16 April 2008
• Docket Number: No. 06-2348.,06-2348.
• Citation: 522 F.3d 1121
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank GABALDON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

522 F.3d 1121

UNITED STATES of America, Plaintiff-Appellee, v. Frank GABALDON, Defendant-Appellant.

No. 06-2348.

United States Court of Appeals, Tenth Circuit.

April 16, 2008.

Submitted on the briefs:^*

Frank Gabaldon, Pro Se.

Larry Gómez, United States Attorney, William J. Pflugrath, Assistant United States Attorney, Albuquerque, NM, for Plaintiff-Appellee.

Before LUCERO, HARTZ, and HOLMES, Circuit Judges.

HARTZ, Circuit Judge.

Frank Gabaldon, a federal prisoner proceeding pro se, appeals the district court's dismissal of his motion under 28 U.S.C. § 2255 on the ground that it was filed more than one year after his convictions became final. This court granted Mr. Gabaldon a certificate of appealability, see 28 U.S.C. § 2253(c), on the timeliness issue. See United States v. Gabaldon, No. 06-2348 (10th Cir. Sept. 25, 2007) (unpublished). We conclude that, in light of Mr. Gabaldon's showing of state interference with his filing, the district court abused its discretion in dismissing the motion on the record before it. We therefore vacate the dismissal and remand for further proceedings in the district court.

I

Mr. Gabaldon's convictions became final when the Supreme Court of the United States denied certiorari on March 21, 2005. See Gabaldon v. United States, 544 U.S. 923, 125 S.Ct. 1688, 161 L.Ed.2d 482 (2005). Consequently, under § 2255's one-year time limit, see 28 U.S.C. § 2255(f), his § 2255 motion was due on or before March 21, 2006. On February 2, 2006, however, Mr. Gabaldon was placed in segregation and prison officials confiscated all his legal materials. They did not release his papers until April 4, 2006. He filed his § 2255 motion and an accompanying brief on April 26, 2006, which was 36 days late.

The magistrate judge ordered Mr. Gabaldon to show cause why his motion should not be dismissed as untimely. Mr. Gabaldon responded through an attorney retained for the limited purpose of responding to the order to show cause. According to the statement under penalty of perjury that Mr. Gabaldon submitted to the district court:

I Frank Gabaldon Declare that on February 2, 2006 I was placed in the Special Housing Unit, this being the third time, and was locked down 24 hours a day 7 days a week. Furthermore, my property was secured and placed in the Property Room. I put in many written requests and made numerous verbal requests, requesting my legal work containing my motion 2255, attached memorandum, caselaw, transcripts, jury instructions, indictment, and relevant documents. Despite these many requests, written and otherwise, my property containing the aforementioned was not issued to me until April 4, 2006. For this reason my motion 2255 and attached memorandum were filed late.

R. Doc. 13, Exh. E. He also presented (1) a statement under penalty of perjury by his cellmate regarding his requests for the return of his documents and (2) copies of written requests that he had submitted to prison staff seeking the return of his documents. In addition, he submitted a copy of a memorandum from an employee of the United States Penitentiary-Hazelton that stated:

Inmate Gabaldon ... was placed in the Special Housing Unit for violation of Bureau rules and regulations on February 02, 2006. I understand that inmate Gabaldon had a deadline of March 21, 2006 for Motion 2255. On February 02, 2006 inmate Gabaldon's property was secured and sent to the Special Housing Unit. Inmate Gabaldon was not issued his property until April 04, 2006. His property contained documents that were needed for his court deadline, Motion 2255; therefore resulting in inmate Gabaldon, Frank ... to not meet his deadline.

Id., Exh. G. Mr. Gabaldon further asserted in an unsworn submission that when his legal materials were returned to him on April 4, he mailed copies to his mother for typing¹ and she had the motion and the brief delivered to the court for filing on April 26, 2006.

The magistrate judge found no ground for equitable tolling and recommended that the § 2255 motion be dismissed as untimely. She stated that Mr. Gabaldon had not been diligent in preparing his materials before his placement in segregation and that the prison's confiscation of his legal papers was not an extraordinary circumstance justifying his failure to file timely. Mr. Gabaldon filed lengthy objections to the magistrate judge's recommendation that detailed the actions he and his family had taken with regard to his claims after the Supreme Court had denied review. The objections included another sworn affidavit supporting Mr. Gabaldon's contentions. After reviewing Mr. Gabaldon's objections, the district court accepted the magistrate judge's recommendation and dismissed the § 2255 motion.

II

The issue before this court is whether Mr. Gabaldon is entitled to equitable tolling of the statutory one-year limitations period for at least 36 days because prison staff confiscated all his legal materials just six weeks before the expiration of the limitations period and held them until two weeks after that period expired.² We review the district court's decision on equitable tolling for an abuse of discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir.2003).

Equitable tolling of the limitations period is available "when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control." Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.2000). We have stated:

Equitable tolling would be appropriate, for example, when a prisoner is actually innocent, when an adversary's conduct — or other uncontrollable circumstances — prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period.... Moreover, a petitioner must diligently pursue his federal habeas claims; a claim of insufficient access to relevant law ... is not enough to support equitable tolling.

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) (citations omitted).

Extraordinary Circumstances

From the facts in the record before this court, it appears that this may be a case in which "an adversary's conduct ... prevent[ed] a prisoner from timely filing." Id.³ The evidence presented by Mr. Gabaldon indicates that six weeks before the expiration of the limitations period, prison officials confiscated all of his legal documents, including a draft § 2255 motion and brief, and refused to return the documents despite his numerous requests before his deadline that they do so. Mr. Gabaldon filed his § 2255 motion just 22 days after officials returned his legal materials to him.

In Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir.2000), the Second Circuit held that "the confiscation of a prisoner's legal papers by a corrections officer shortly before the filing deadline may justify equitable tolling and permit the filing of a petition after the statute of limitations ordinarily would have run." That court found that

[t]he intentional confiscation of a prisoner's habeas corpus petition and related legal papers by a corrections officer is `extraordinary' as a matter of law.... And a person is plainly `prevented' from filing a pleading for some period of time if he is deprived of the sole copy of that pleading, something that the petitioner asserts happened to him here.

Id. at 133-34. The Ninth Circuit has also granted equitable tolling when a prisoner was placed in administrative segregation and denied all access to his legal papers, despite his diligent attempts to retrieve them. Espinoza-Matthews v. California, 432 F.3d 1021, 1027-28 (9th Cir.2005); see also Lott v. Mueller, 304 F.3d 918, 924-25 (9th Cir.2002) (remanding for further factfinding when prisoner was denied access to his legal files during two temporary transfers that lasted 82 days).

The district court distinguished Valverde by stating that Mr. Gabaldon had made "no showing of affirmative or intentional misconduct on the part of a prison official[] in taking the papers in the first instance," and by noting that prison regulations "permit the Warden to restrict the number of legal materials an inmate has access to when in disciplinary segregation." R. Doc. 30 at 3-4. But we do not read Valverde as relying on the petitioner's assertion that the seizure was intentional misconduct. See 224 F.3d at 135. Further, while prisons "may limit the amount of legal materials an inmate may accumulate for security or housekeeping reasons," 28 C.F.R. § 543.11(d)(2), the complete seizure of all legal materials in this case appears to contravene 28 C.F.R. § 543.11(j), which states:

With consideration of the needs of other inmates and the availability of staff and other resources, the Warden shall provide an inmate confined in disciplinary segregation or administrative detention a means of access to legal materials, along with an opportunity to prepare legal documents. The Warden shall allow an inmate in segregation or detention a reasonable amount of personal legal materials.

(emphasis added). The word "shall" indicates a mandatory duty. See Qwest Corp. v. FCC, 258 F.3d 1191, 1200 (10th Cir. 2001).

The district court also distinguished Espinoza-Matthews, noting that it "involved[ed] placement in administrative segregation for the inmate's own protection," whereas Mr. Gabaldon was placed in segregation for "legitimate disciplinary reasons." R. Doc. 30 at 3. It further held that Mr. Gabaldon's "behavior that led to placement in disciplinary segregation is a circumstance within his control." Id. at 4. But an inmate's right of reasonable access to legal materials is not conditioned on the type of segregation to which he is assigned — § 543.11(j) does not distinguish between disciplinary segregation and administrative segregation.

We believe that a complete confiscation of Mr. Gabaldon's legal materials just weeks before his filing deadline would constitute extraordinary circumstances for the...