Fue v. Biter

• Decision Date: 15 January 2016
• Docket Number: No. 12–55307.,12–55307.
• Citation: 810 F.3d 1114
• Parties: Steven Pelesasa FUE, Petitioner–Appellant, v. Martin BITER, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

810 F.3d 1114

Steven Pelesasa FUE, Petitioner–Appellant,

v.Martin BITER, Warden, Respondent–Appellee.

No. 12–55307.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 28, 2014.^*

Filed Jan. 15, 2016.

Sean K. Kennedy, Federal Public Defender, Michael Tanaka, Deputy Federal Public Defender, Los Angeles, CA, for Petitioner–Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Yun K. Lee, Deputy Attorney General, Los Angeles, CA, for Respondent–Appellee.

Before: DIARMUID F. O'SCANNLAIN, JOHNNIE B. RAWLINSON, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge RAWLINSON ; Dissent by Judge BYBEE.

OPINION

RAWLINSON, Circuit Judge:

California state prisoner Steven Pelesasa Fue (Fue) appeals the district court's dismissal, as untimely, of his petition for a writ of habeas corpus, filed pursuant to the Antiterrorism and Effective Death Penalty Act (the Act), 28 U.S.C. § 2254. Fue contends that he is entitled to equitable tolling because the state court never notified him that it had denied his state habeas petition. The district court held that Fue was not entitled to equitable tolling because he did not act diligently in waiting fourteen months before inquiring into the status of his petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we agree with the district court's conclusion that Fue failed to act with the requisite diligence.¹

I. BACKGROUND

Fue's habeas petition challenges his 2007 convictions for armed carjacking. Under the Act, Fue had one year from the date his convictions became final to file a federal habeas corpus petition. See 28 U.S.C. § 2244(d). His convictions became final on or about May 19, 2009, ninety days after the California Supreme Court denied his petitions for review on direct appeal.See Sossa v. Diaz, 729 F.3d 1225, 1227 (9th Cir.2013). Six months later, on November 19, 2009, Fue filed a state petition for a writ of habeas corpus in the California Supreme Court, thereby tolling the one-year limitations period while his state post-conviction petition was pending. See 28 U.S.C. § 2244(d)(2). On May 20, 2010, the California Supreme Court denied the state habeas petition. What happened next is relevant to Fue's equitable tolling claim.

According to Fue, the California Supreme Court never notified him that it had denied his state habeas petition. After waiting fourteen months for a decision, on January 31, 2011, Fue mailed a letter to the California Supreme Court to inquire into the status of his case. By letter dated February 3, 2011, the Clerk of the California Supreme Court informed Fue that his habeas case was no longer active.²

Fue's federal habeas petition, filed on March 7, 2011, was dismissed as untimely. In this timely appeal, Fue contends that the district court misapplied the doctrine of equitable tolling when determining the timeliness of his federal habeas petition. We do not agree.

II. STANDARDS OF REVIEW

We review a district court's dismissal of a petition for a writ of habeas corpus for failure to comply with the applicable one-year statute of limitations de novo. See Sossa, 729 F.3d at 1229. If the underlying facts are undisputed, the question whether the statute of limitations should be equitably tolled is reviewed de novo. See id.;see also Gibbs v. Legrand, 767 F.3d 879, 890–93 (9th Cir.2014) (reviewing the district court's diligence determination de novo ). Otherwise, a district court's findings of fact are reviewed for clear error. See Sossa, 729 F.3d at 1229.

III. DISCUSSION

A prisoner seeking equitable tolling bears the burden of showing (1) that an extraordinary circumstance prevented the timely filing of his habeas petition and (2) that he diligently pursued his rights. See Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Lack of knowledge that the state court has reached a decision on his state habeas petition may constitute an extraordinary circumstance so as to justify equitable tolling if the prisoner has acted diligently. See Ramirez v. Yates, 571 F.3d 993, 997–98 (9th Cir.2009). In order to determine whether Fue is entitled to such tolling, we consider "(1) on what date [Fue] actually received notice; (2) whether [Fue] acted diligently to obtain notice; and (3) whether the alleged delay of notice caused the untimeliness of his filing and made a timely filing impossible." Id. at 998 (citations omitted).

Only the second consideration is at issue in this appeal. We must decide whether a prisoner who waits fourteen months before inquiring into the status of his state habeas petition has acted with sufficient diligence to apprise himself of the status of his pending proceedings. While the availability of equitable relief commends a flexible, case-by-case approach, we permissibly look to how other courts have evaluated various delays to inform our reasonable diligence inquiry. Holland, 560 U.S. at 650, 130 S.Ct. 2549 (recognizing that "courts of equity can and do draw upon decisions made in other similar cases"). A brief survey of similar cases in other circuits reflects that courts have generally determined that a prisoner who delayed fewer than ten months before inquiring into the status of his case acted with sufficient diligence. See Diaz v. Kelly, 515 F.3d 149, 155–56 (2d Cir.2008) (nine months); see also Miller v. Collins, 305 F.3d 491, 495–96 (6th Cir.2002) (same). On the other hand, a prisoner who delayed sixteen months and more was deemed not to have acted with sufficient diligence. See LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir.2005) (twenty-one months); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.2002) (nearly two years); Drew v. Dep't of Corr., 297 F.3d 1278, 1288 (11th Cir.2002) (sixteen months). While not dispositive, Fue's delay of fourteen months before inquiring into the status of his state habeas petition is closer to the majority of cases finding a lack of reasonable diligence.

Unlike our dissenting colleague, we easily see how waiting fourteen months before inquiring about the status of his state court petition was unreasonable in these circumstances. Although no statute or rule requires prisoners to seek periodic updates from the California Supreme Court, reasonable diligence requires action on the part of the petitioner—including one appearing pro se. See Diaz, 515 F.3d at 155 (suggesting that a pro se litigant should inquire "as to whether a pending motion has been decided" after "a substantial period of time has elapsed," in that case nine months); see also Miller, 305 F.3d at 496 (noting that the pro se petitioner "did not passively await decision," but acted reasonably in filing a motion asking the court to rule on his application after approximately nine months); Drew, 297 F.3d at 1288 (criticizing the pro se petitioner for sending only one letter inquiring about this case); Emp. Painters' Trust v. Ethan Enters., 480 F.3d 993, 997 n. 7 (explaining that diligence requires "keeping apprised of recent filings").

The dissent inquires why we would require habeas petitioners to pursue a "steady stream of correspondence" regarding filings that have been pending for a considerable time. Dissenting Opinion, p. 1121. The answer is obvious: to demonstrate the required diligence on the part of the habeas petitioner. Cf. Drew, 297 F.3d at 1288 (criticizing the sending of only one letter).

The dissenting opinion rests its analysis largely on the failure of the California Supreme Court to notify Fue of its decision. See Dissenting Opinion, pp. 1122–23. However, the failure of the court to notify Fue of its decision has absolutely nothing to do with Fue's diligence. Rather, the failure of the court to notify Fue satisfied the extraordinary circumstances prong of the equitable tolling equation. See Ramirez, 571 F.3d at 997 ("We agree with our sister circuits that a prisoner's lack of knowledge that the state courts have reached a final resolution of his case can provide grounds for equitable tolling if the prisoner has acted diligently ...") (citations and internal quotation marks omitted) (emphasis added). The diligence requirement is separate and apart from the extraordinary circumstances requirement. The extraordinary circumstances requirement focuses on the action(s) of a party or parties outside the petitioner's control. See Sossa, 729 F.3d at 1229 (describing extraordinary circumstances as those circumstances "beyond a prisoner's control" and attributable to "an external force"). The diligence requirement focuses squarely on the habeas petitioner's actions, or lack thereof. See Holland, 560 U.S. at 649, 130 S.Ct. 2549 (clarifying that a habeas petitioner warrants equitable tolling only if "he has been pursuing his rights diligently") (citation omitted) (emphasis added).

We readily acknowledge that we previously determined in Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir.2001), that a prisoner was diligent despite a longer delay. However, in Huizar, the prisoner engaged in a "steady stream of correspondence" with a non-responsive court. Id. The prisoner first contacted the court two months after he delivered his state habeas petition to prison officials. See id. Twenty-one months later, after receiving no response from the court, the prisoner had his sister mail a second copy of the petition by certified mail. See id. After five months more of waiting, the prisoner sent yet another letter to the court, his fourth mailing. See id. It was the prisoner's "steady stream of correspondence ... [that] show[ed] reasonable diligence on his part." Id.

There is really no credible comparison to be made between Huizar and Fue. Huizar was also entitled to rely on notice from the California court. But he didn't just wait for notice from the court. He undertook an investigation within a reasonable time after he expected a decision to have been rendered.³ By contrast, Fue sat...