Carlos Levy v. David Osborne ( 2018 )


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  •                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 18a0250n.06
    Case No. 17-5050
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    FILED
    May 23, 2018
    CARLOS LEVY,                                        )
    DEBORAH S. HUNT, Clerk
    )
    Petitioner-Appellant,                        )
    )      ON APPEAL FROM THE UNITED
    v.                                                  )      STATES DISTRICT COURT FOR
    )      THE MIDDLE DISTRICT OF
    DAVID R. OSBORNE, Warden,                           )      TENNESSEE
    )
    Respondent-Appellee.                         )
    )
    )
    BEFORE: SILER, ROGERS, and LARSEN, Circuit Judges.
    SILER, Circuit Judge. Carlos Levy, a Tennessee prisoner proceeding with counsel,
    challenges an order of the district court that dismissed as untimely his 28 U.S.C. § 2254 habeas
    petition. On appeal, Levy argues that the habeas deadline in his case should be equitably tolled
    because a language barrier prevented him from timely filing his petition and because he
    diligently pursued his rights. Because the district court did not abuse its discretion by finding
    that Levy failed to diligently pursue his rights, we AFFIRM.
    I.
    The facts of this case are more fully set forth in our order granting Levy a certificate of
    appealability. See Levy v. Osborne, No. 17-5050 (6th Cir. Aug. 29, 2017). In short, Levy pled
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    guilty to numerous offenses in Tennessee state court. He was sentenced to thirty years of
    imprisonment, and his direct appeal was unsuccessful.
    In January 2010, Levy filed a pro se federal habeas petition, which he later amended.
    The next year, he filed a counseled habeas petition. In 2013, the magistrate judge recommended
    that Levy’s petition be dismissed as untimely. The district court rejected that recommendation
    and sent the case back to the magistrate judge for an evidentiary hearing on whether Levy’s
    asserted lack of ability to communicate in English and his lack of access to Spanish-language
    legal materials or assistance entitled him to equitable tolling.
    The magistrate judge held an evidentiary hearing and again recommended to the district
    court that Levy’s petition be dismissed as untimely. This time, over Levy’s objections, the
    district court accepted the magistrate judge’s recommendation and declined to issue a certificate
    of appealability.
    We issued a certificate of appealability as to (1) whether Levy established an
    extraordinary circumstance that prevented timely filing of his habeas petition and (2) whether,
    and to what extent, a non-English-speaking petitioner’s ignorance of the law factors into the
    diligence requirement of an equitable-tolling claim based on that petitioner’s lack of English
    proficiency.
    II.
    “[W]here the facts are undisputed or the district court rules as a matter of law that
    equitable tolling is unavailable, we apply the de novo standard of review to a district court’s
    refusal to apply the doctrine of equitable tolling; in all other cases, we apply the abuse of
    discretion standard.” Robertson v. Simpson, 
    624 F.3d 781
    , 784 (6th Cir. 2010) (citation omitted).
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    Levy v. Osborne
    Levy submits our review should be de novo because the facts are undisputed.
    Conversely, the warden argues for abuse-of-discretion review, asserting that “there is a
    prominent dispute of fact about the extent to which petitioner’s English proficiency played any
    role in his untimely filing.” The warden also points out that equitable tolling does not involve
    the application of bright-line rules.
    The warden has the better argument. Indeed, there is a significant factual dispute in this
    case concerning the extent of Levy’s English proficiency. Accordingly, we will review for abuse
    of discretion. See 
    id. (“The district
    court appeared to exercise its discretion in determining that
    Robertson did not meet his burden of proving he was entitled to equitable tolling.”). A district
    court abuses its discretion by relying on clearly erroneous findings of fact, improperly applying
    the law, or using an incorrect legal standard. 
    Id. III. The
    Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year
    statute of limitations for 28 U.S.C. § 2254 petitions. See 28 U.S.C. § 2244(d). As we explained
    in our prior order, Levy has not identified a newly recognized constitutional right or any newly
    discovered facts. Levy, No. 17-5050, Order at 6. He also has not argued that the state created an
    impediment to his timely filing of a petition. 
    Id. Thus, the
    limitations period for Levy’s petition
    began to run on “the date on which the judgment became final by the conclusion of direct review
    or the expiration of the time for seeking such review.” 
    Id. (quoting 28
    U.S.C. § 2244(d)(1)(A)).
    Levy’s conviction became final in November 2007, so the limitations period ran in
    November 2008. Because he did not file his petition until January 2010, there is no dispute that
    his filing was untimely. The question before the court, then, is whether Levy is entitled to
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    equitable tolling. See Holland v. Florida, 
    560 U.S. 631
    , 634 (2010) (holding that the federal
    habeas corpus statute is subject to equitable tolling).
    A petitioner seeking equitable tolling must demonstrate (1) that some extraordinary
    circumstance stood in his way and prevented timely filing and (2) that he has been pursuing his
    rights diligently. 
    Id. at 649.
    Levy primarily seeks equitable tolling for the relevant period that he
    was at Northwest Correctional Complex, which was from November 2007 to August 2009.
    Levy contends that an inability to communicate in English is similar to a physical or
    mental impediment and that it qualifies as an extraordinary circumstance that can prevent a
    timely filing of a habeas petition. We have found that a lack of English proficiency, standing
    alone, is insufficient to entitle a petitioner to equitable tolling. See Cobas v. Burgess, 
    306 F.3d 441
    , 444 (6th Cir. 2002). However, Levy urges us to follow the lead of the Second, Third, and
    Ninth Circuits and find that the inability to read and understand English, coupled with the denial
    of access to translation or legal assistance, can constitute an extraordinary circumstance in the
    equitable-tolling context. See Pabon v. Mahanoy, 
    654 F.3d 385
    (3d Cir. 2011); Diaz v. Kelly,
    
    515 F.3d 149
    (2d Cir. 2008); Mendoza v. Carey, 
    449 F.3d 1065
    (9th Cir. 2006).
    We need not decide whether Levy faced an extraordinary circumstance, though, because
    the district court did not abuse its discretion by finding that he failed to act with due diligence.
    On the diligence prong, Levy must show that “he was unable, despite diligent efforts, to procure
    either legal materials in his own language or translation assistance from an inmate, library
    personnel, or other source.” 
    Mendoza, 449 F.3d at 1070
    .
    A review of cases addressing the diligence requirement from our sister circuits places
    Levy’s actions into perspective. For example, the Second Circuit has held that petitioners who
    “claimed nothing more than the unavailability of personnel within their prisons who could
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    translate for them during the applicable limitations periods” failed to act with due diligence.
    
    Diaz, 515 F.3d at 154
    .     In Diaz, the court found particularly relevant that there was “no
    allegation of any efforts to contact anyone outside the prison who might assist in making them
    aware, in their language, of legal requirements for filing a habeas corpus petition, nor what
    efforts were made to learn of such requirements within their places of confinement.” 
    Id. At the
    other end of the spectrum, the Third Circuit has held that a petitioner who
    “attempted to pursue his claims repeatedly” did satisfy the diligence requirement.         
    Pabon, 654 F.3d at 403
    . Indeed, that court noted that it “count[ed] ten or more efforts where [the
    petitioner] sought assistance, both before and after the AEDPA deadline.” 
    Id. at 402.
    Levy’s efforts fall somewhere between those of the petitioners in Diaz and the petitioner
    in Pabon. In such a posture, the district court was faced with two competing narratives. On the
    one hand, Levy and his fellow inmates testified that Northwest did not have any Spanish legal
    materials or Spanish-speaking inmate advisors. Further, the record demonstrates that Levy used
    the help of bilingual inmates when he had access to them.          For instance, Levy filed an
    application for permission to appeal to the Tennessee Supreme Court with the help of a bilingual
    cellmate. Additionally, when Levy received a letter from a court, he asked for translation
    assistance, but none was provided. Yet, on the other hand, Levy’s plea counsel testified that she
    had no trouble communicating with him when advising him before he entered his plea, and Levy
    never renewed his request for translation help, asked for Spanish legal materials, or sought an
    interpreter. Neither did Levy ask bilingual inmates to speak with prison staff on these topics—
    even though Levy did ask bilingual inmates to speak with prison staff on his behalf about day-to-
    day matters.
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    Levy challenges the district court’s finding that he had not acted with due diligence in
    several respects. For instance, Levy urges the court that he should not be required to return to a
    “dry well” and to seek assistance when none had been provided when previously requested. He
    further contends that, when an inmate relies on a third party to handle his habeas litigation, he is
    held responsible for whatever mistakes the third party makes, and this is an unfair demand.
    We are reviewing for abuse of discretion, and the district court’s conclusion was
    reasonable in light of the record it had before it, which reveals only minimal efforts by Levy to
    pursue his rights. After bilingual fellow-inmate Jones was transferred, Levy asked for translation
    assistance at Northwest only one time. Also, none of Levy’s asserted acts of diligence pertained
    to federal habeas relief in particular. The thrust of Levy’s argument is that the language barrier
    left him unable to even learn about the existence of that remedy, but Levy could have asked
    Jones, who had assisted him with other legal matters, about the existence of collateral remedies.
    The district court therefore did not abuse its discretion by finding that Levy failed to establish
    due diligence and denying him the extraordinary remedy of equitable tolling.
    AFFIRMED.
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