Darin Johnson v. Frank X. Chavez , 585 F. App'x 448 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARIN JOHNSON, No. 12-55312
Petitioner - Appellant, D.C. No. 2:11-cv-03099-PSG-
RNB
v.
FRANK X. CHAVEZ, Warden-HDSP, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted October 9, 2014
Pasadena, California
Before: HAWKINS and GRABER, Circuit Judges, and SEDWICK,** District
Judge.
Petitioner Darin Johnson appeals the district court’s dismissal of his federal
habeas petition as untimely under 28 U.S.C. § 2244(d). Reviewing de novo,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John W. Sedwick, Senior United States District Judge for
the District of Alaska, sitting by designation.
Shannon v. Newland, 410 F.3d 1083, 1087 n.3 (9th Cir. 2005), we vacate and
remand for further proceedings.
1. The district court did not err in declining to apply an alternate start date
under 28 U.S.C. § 2244(d)(1)(B), which is a "far higher bar than that for equitable
tolling." Ramirez v. Yates, 571 F.3d 993, 1000 (9th Cir. 2009). Petitioner has not
shown that the prison’s actions "altogether prevented him from presenting his
claims in any form, to any court." Id. at 1001.
2. The district court erred by rejecting Petitioner’s claim of equitable tolling
without further factual development. See Espinoza-Matthews v. California, 432
F.3d 1021, 1026 (9th Cir. 2005) (holding that the inquiry is "highly fact-
dependent" (internal quotation marks omitted)). For example, it is unclear from
the existing record whether, during the several-month period of administrative
segregation, Petitioner expressly sought to obtain his legal files or access the
library and, if so, whether he was denied access. If the regulations allowed him
access to his files and to library materials but he did not ask for them, equitable
tolling would not be appropriate because no extraordinary circumstance prevented
his filing and he failed to exercise diligence. See Holland v. Florida, 560 U.S. 631,
649 (2010) (describing the two requirements). But if the regulations did not allow
access or if he asked but was denied, then equitable tolling may be appropriate.
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See Espinoza-Matthews, 432 F.3d at 1027–28 (holding that a petitioner who was
denied access to his legal files while in administrative segregation was entitled to
equitable tolling); see also Lott v. Mueller, 304 F.3d 918, 924–25 (9th Cir. 2002)
(applying equitable tolling where the prison applied a policy that inmates not have
access to their legal files during a transfer).
Similarly, the relevant facts are unclear during the period from Petitioner’s
first pending library request until he filed the petition. The existing record does not
disclose whether prison officials declined his library request for ordinary,
legitimate penological reasons or if the prison officials, whether through neglect, ill
will, or discrimination, created an "extraordinary circumstance [that] stood in his
way and prevented timely filing." Holland, 560 U.S. at 649 (internal quotation
marks omitted); see Ramirez, 571 F.3d at 998 (holding that "[o]rdinary prison
limitations on [a petitioner’s] access to the law library" do not constitute
"extraordinary circumstances"). The record also does not disclose why Petitioner
declined to file his petition after receiving the needed form on March 16. If
Petitioner was prevented from filing by an extraordinary circumstance and if he
exercised "reasonable diligence," Holland, 560 U.S. at 653 (internal quotation
marks omitted), then equitable tolling might be warranted for this period.
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On remand, if the district court concludes that an extraordinary circumstance
prevented a timely filing, the court should consider whether Petitioner exercised
diligence by reference to our recent opinion in Gibbs v. Legrand, No. 12-16859,
2014 WL 4627991 (9th Cir. Sept. 17, 2014). See, e.g., id. at *10 ("[D]iligence
during the existence of an extraordinary circumstance is the key consideration.").
In sum, we vacate the district court’s dismissal and remand for further
factual development and for the district court’s reconsideration of equitable tolling
in light of that development. See, e.g., Whalem/Hunt v. Early, 233 F.3d 1146,
1148 (9th Cir. 2000) (en banc) (per curiam) ("[B]ecause the district court is in a
better position to develop the facts and assess their legal significance in the first
instance, we believe the best course is to remand to the district court for
appropriate development of the record.").
VACATED and REMAND for further proceedings. The parties shall
bear their own costs on appeal.
4