Fue v. Biter, No. 12-55307

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: BYBEE, Circuit Judge
• Citation: 842 F.3d 650
• Decision Date: 17 November 2016
• Docket Number: No. 12-55307
• Parties: Steven Pelesasa Fue, Petitioner–Appellant, v. Martin Biter, Warden, Respondent–Appellee.

842 F.3d 650

Steven Pelesasa Fue, Petitioner–Appellant,
v.
Martin Biter, Warden, Respondent–Appellee.

No. 12-55307

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc September 8, 2016, San Francisco, California
Filed November 17, 2016

Michael Tanaka (argued), Deputy Federal Public Defender; Sean K. Kennedy, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California, for Petitioner–Appellant.

David F. Glassman (argued) and Yun K. Lee, Deputy Attorneys General; Scott A. Taryle, Supervising Deputy Attorney General; Lance E. Winters, Senior Assistant Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, Los Angeles, California, for Respondent–Appellee.

Before: Sidney R. Thomas, Chief Judge, and Alex Kozinski, Barry G. Silverman, M. Margaret McKeown, William A. Fletcher, Richard A. Paez, Richard C. Tallman, Richard R. Clifton, Jay S. Bybee, N. Randy Smith and Andrew D. Hurwitz, Circuit Judges.

OPINION

BYBEE, Circuit Judge:

After the California Supreme Court denied Steven Fue's direct appeal from his conviction for carjacking, Fue had one year in which to file a federal habeas corpus petition. Instead, Fue filed a state habeas petition, which tolled the time for filing his federal petition. When Fue finally filed his federal habeas petition, the district court dismissed it as untimely. Fue argues that he is entitled to equitable tolling because the California Supreme Court never notified him that it had denied his state petition. We hold that Fue's lack of knowledge of the denial, if proven, would entitle him to equitable tolling. Accordingly, we reverse the judgment of the district court and remand for further proceedings.

I

Fue was sentenced to twenty-six years in state prison after a jury found him guilty of carjacking, second degree robbery, possession of a firearm by a felon, and unlawful driving of a vehicle. The California Court of Appeal affirmed the convictions, and the California Supreme Court denied Fue's petition for review on February 18, 2009. The Antiterrorism and Effective Death Penalty Act ("AEDPA") imposes a one-year limitations period for filing a federal habeas corpus petition, starting

842 F.3d 653

from the date that a petitioner's conviction becomes final. 28 U.S.C. § 2244(d)(1). Fue's convictions became final on May 19, 2009, ninety days after the California Supreme Court denied his petition for review on direct appeal.

On November 15, 2009, Fue mailed a habeas petition to the California Supreme Court, thus tolling the limitations period. See 28 U.S.C. § 2244(d)(2). After fourteen months, Fue wrote to the court clerk on January 31, 2011 to inquire about the status of his petition. The clerk's response letter, dated February 3, 2011, stated in full: "This will acknowledge receipt of your letter received February 3, 2011, I checked our dockets and found no record of a pending petition for writ of habeas corpus having been filed on or about November 2009." In fact, the California Supreme Court had received the petition and denied it on May 20, 2010, six months after it was filed. Fue alleges that the court never notified him that it denied his petition.

After consulting his lawyer about what to make of the clerk's response letter, Fue mailed a federal habeas petition to the United States District Court for the Central District of California on March 7, 2011. Fue's petition noted that he had filed a state habeas petition in the California Supreme Court, but that he did not have a docket number and was "waiting for a response still." The State filed a motion to dismiss the petition as barred under AEDPA's one-year statute of limitations, arguing that the limitations period started running again after the denial of Fue's state habeas petition on May 20, 2010 and expired on November 20, 2010. Fue claims that the State's motion to dismiss was the first notice he ever received that the California Supreme Court had denied his state habeas petition. The district court dismissed Fue's petition as untimely, rejecting his contention that he was entitled to equitable tolling. Fue appealed, and a panel affirmed the district court in a divided decision. See Fue v. Biter , 810 F.3d 1114 (9th Cir. 2016). We granted rehearing en banc, 835 F.3d 892 (9th Cir. 2016), and now reverse.

II

"We review de novo the dismissal of a petition for writ of habeas corpus on statute of limitations grounds." Corjasso v. Ayers , 278 F.3d 874, 877 (9th Cir. 2002). In reviewing a motion to dismiss a habeas petition as untimely, we "accept[ ] the facts as alleged" by the petitioner. See Huizar v. Carey , 273 F.3d 1220, 1224 (9th Cir. 2001). Taking these facts as true, "we review de novo whether the statute of limitations should be equitably tolled." Corjasso , 278 F.3d at 877 (quoting Miles v. Prunty , 187 F.3d 1104, 1105 (9th Cir. 1999) ).

III

A habeas 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." Holland v. Florida , 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ). We have previously held that a petitioner's lack of knowledge that his state habeas petition has been denied can constitute an extraordinary circumstance that prevents timely filing. Ramirez v. Yates , 571 F.3d 993, 997 (9th Cir. 2009). For purposes of this appeal from a motion to dismiss, the State does not contest that the California Supreme Court failed to notify Fue that it denied his state habeas petition. Rather, the State contends that Fue failed to pursue his rights diligently by waiting fourteen months to contact the

842 F.3d 654

court about the status of his case. For the reasons outlined below, we disagree.

A

"The diligence required for equitable tolling purposes is ‘reasonable diligence,’ not ‘maximum feasible diligence.’ " Holland , 560 U.S. at 653, 130 S.Ct. 2549 (citations omitted). Reasonable diligence requires only "the effort that a reasonable person might be expected to deliver under his or her particular circumstances." Doe v. Busby , 661 F.3d 1001, 1015 (9th Cir. 2011). "To determine if a petitioner has been diligent in pursuing his petition, courts consider the petitioner's overall level of care and caution in light of his or her particular circumstances." Id. at 1013.

As with other equitable considerations, determining whether a petitioner acted with reasonable diligence is a fact-specific inquiry. Holland , 560 U.S. at 649–50, 130 S.Ct. 2549 ; Busby , 661 F.3d at 1011. This is "not the arena of bright-lines and dates certain." Busby , 661 F.3d at 1015. We are guided by "decisions made in other similar cases ... with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case." Holland , 560 U.S. at 650, 130 S.Ct. 2549.

One such similar case is Huizar v. Carey , 273 F.3d 1220 (9th Cir. 2001). In that case, a petitioner requested equitable tolling of AEDPA's limitations period when he mailed a habeas petition to the California Superior Court, but the petition was never received. Huizar , 273 F.3d at 1222. He wrote the court two months after mailing the petition to inquire about the status of his case but received no response. Id. He then waited another twenty-one months before contacting the court again. Id. In assessing whether the petitioner acted with reasonable diligence, we stated that twenty-one months is "not an unusually long time to wait for a court's decision." Id. at 1224.

The conclusion that twenty-one months, and by inclusion fourteen months, is "not an unusually long time to wait for a court's decision" applies with extra force in the context of the present case. The petitioner in Huizar filed his habeas petition in the California Superior Court, whereas Fue filed his...