Steven Fue v. Martin Biter , 810 F.3d 1114 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN PELESASA FUE, No. 12-55307
Petitioner-Appellant,
D.C. No.
v. 2:11-cv-02436-
DMG-MRW
MARTIN BITER, Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted August 28, 2014*
Pasadena, California
Filed January 15, 2016
Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Rawlinson
Dissent by Judge Bybee
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 FUE V. BITER
SUMMARY**
Habeas Corpus
Affirming the district court’s dismissal, as untimely, of a
California state prisoner’s habeas corpus petition, the panel
held that the prisoner failed to act with the requisite diligence
to justify application of the equitable tolling doctrine where
he waited fourteen months before inquiring into the status of
his state habeas petition.
Dissenting, Judge Bybee wrote that, since it is only the
extraordinary case in which the state court fails to send notice
of a decision, a rule requiring prisoners to seek early and
frequent updates about the status of a pending petition would
be a waste of time for prisoners and a heavy administrative
burden for state courts.
COUNSEL
Sean K. Kennedy, Federal Public Defender, Michael Tanaka,
Deputy Federal Public Defender, Los Angeles, California, 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, California, for Respondent-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FUE V. BITER 3
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
1
We have no quarrel with the principle that equitable tolling may
require us to calculate time with the awareness that special treatment may
be warranted “in an appropriate case.” Dissenting Opinion, p. 13 (quoting
Holland v. Florida, 560 U.S. 631, 650 (2010). We simply disagree that
Fue’s case is “special.”
4 FUE V. BITER
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
2
The dissent takes the position that this letter was deceptive. See
Dissenting Opinion, p. 18. We disagree. Informing a habeas petitioner
that his case is no longer active conveys that there are no pending matters
before the court.
FUE V. BITER 5
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
(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 (recognizing that “courts
of equity can and do draw upon decisions made in other
similar cases”). A brief survey of similar cases in other
6 FUE V. BITER
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”).
FUE V. BITER 7
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. 14. 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. 15–17. 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 (clarifying that a habeas petitioner warrants equitable
tolling only if “he has been pursuing his rights diligently”)
(citation omitted) (emphasis added).
8 FUE V. BITER
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 on his hands and did not
3
Although the Huizar opinion did not so explain, superior courts in
California at the time Huizar filed his state petition were required to “rule
on a petition for writ of habeas corpus within 30 days after the petition
[was] filed.” Cal. R. Ct. 4.551(a)(3)(A)(1996); see also Cal. R. Ct.
4.550(a) (providing that Rule 4.551 “applies to habeas corpus proceedings
in the superior court”); Jackson v. Superior Court, No. B164449, 2003
WL 22146535, at *1 (Cal. Ct. App. Sept. 18, 2003) (applying the 30-day
rule). Judge Bybee correctly observes that the California Supreme Court
does not have an analogous deadline for ruling on habeas petitions, so Fue
did not know exactly when the court would issue its opinion. Dissenting
Opinion, p. 15 n.1. But that fact is quite beside the point. Fue was
undeserving of equitable tolling regardless of what he knew (or didn’t
know) about his petition because it was unreasonable for him not to take
FUE V. BITER 9
bother to inquire into the status of his petition, even after “a
substantial period of time” – more than a whole year –
“elapsed.” Cf. Diaz, 515 F.3d at 156 (involving less than a
year delay). In addition, Huizar didn’t stop with only one
mailing to the state court. Although the dissent takes issue
with a “steady stream of correspondence” as reflecting due
diligence, see Dissenting Opinion, p. 14, we explicitly held
that Huizar’s “steady stream of correspondence . . . would
show reasonable diligence on his part.” Huizar, 273 F.3d at
1224.
Our colleague in dissent seeks to characterize our holding
in Huizar as sanctioning a delay of twenty-one months in
contacting the state court. See Dissenting Opinion, p. 17.
However, that characterization completely ignores Huizar’s
initial inquiry after two months, and Huizar’s “steady string
of correspondence” thereafter that persuaded us that Huizar
was reasonably diligent. See Huizar, 273 F.3d at 1224. Fue’s
single inquiry after fourteen months comes nowhere close to
the diligence exercised by Huizar. Cf. Drew, 297 F.3d at
1288 (concluding that the sending of a single letter did not
establish reasonable diligence).
Fue simply did not display diligence similar to that
displayed by Huizar. Rather, he waited fourteen months
before initially inquiring into the status of his state habeas
petition. There was no indication in the record that any
impediment prevented Fue from inquiring earlier about the
status of his habeas petition. The dissenting opinion seeks to
blunt the force of Fue’s dilatoriness by pointing to the relative
alacrity of Fue’s filing in federal court after receiving notice
any action to investigate its status for as many as fourteen months after
filing.
10 FUE V. BITER
from the state court. See Dissenting Opinion, p. 19.
However, it is the pre-notice lack of diligence that dooms
Fue’s claim of diligence. See Huizar, 273 F.3d at 1224
(focusing on pre-notice diligence). Fue’s unwarranted delay
persuades us that he failed to act with sufficient diligence to
justify application of the equitable tolling doctrine. See Emp.
Painters’ Trust, 480 F.3d at 999 n.7 (“Once a party appears
in a civil action it is responsible for the diligent presentation
of its case, which includes, inter alia, keeping apprised of
recent filings . . .”).4
Finally, the dissent takes issue with the “fine line” drawn
by our holding. Dissenting Opinion, p. 20. However, our
colleague in dissent would also draw a line. He merely
prefers that the line be drawn on the other side of the facts in
this case. The fact of the matter is that regardless of where
the line is drawn, cases will fall on either side of the line. We
are persuaded that our conclusion is more consistent with the
purpose of the Act, to “encourag[e] prompt filings in federal
court in order to protect the federal system from being forced
to hear stale claims. . . .” Baek v. Long, No. 13CV421-
MMA(BLM), 2013 WL 6587873, at *4 (S.D. Cal. Dec. 16,
2013) (quoting Guillory v. Rose, 329 F.3d 1015, 1018 (9th
Cir. 2003).
The dissent speculates that if Fue had been more diligent
by six weeks, “perhaps then the majority would say he was
sufficiently diligent.” Dissenting Opinion, p. 20. Perhaps
so. But that is not the case before us. Fue did not inquire of
4
The fact that Fue’s case has been pending in this Court for over
fourteen months, see Dissenting Opinion, p. 24 n.5, in no way excuses his
lack of diligence in the state court. See Emp. Painters’ Trust, 480 F.3d at999 n.7 (requiring a litigant to keep track of court filings).
FUE V. BITER 11
the state court six weeks earlier, and we are persuaded that
the length of his delay and the attendant circumstances place
his case squarely on the non-diligent side of the scale.
We are not persuaded by the dissent’s reliance on Hardy
v. Quarterman, 577 F.3d 596 (5th Cir. 2009), see Dissenting
Opinion, p. 21. The delay in Hardy was eleven months as
opposed to the considerably longer period of fourteen months
here. Performing the same line-drawing analysis we have
undertaken, the Fifth Circuit concluded that the eleven-month
delay was closer to the eight-month delay in one case than to
the thirty-month delay in a different case. See Hardy, 577
F.3d at 599. It is also completely understandable that the
Fifth Circuit would consider a delay of eleven months to be
comparable to the delay of nine months discussed in Diaz and
Miller. The Fifth Circuit was not called upon to decide the
diligence of a habeas petitioner who delayed longer, and we
do not know how it would have ruled. But we do know that
at least two district courts in California have determined that
delays similar to Fue’s reflected a lack of reasonable
diligence. See Baek, 2013 WL 6587873, at *5 (holding that
a delay of thirteen months “does not constitute the required
diligence”) (citations and footnote reference omitted); see
also Retano v. Janda, No. CV 12-8214-GW (OP), 2013 WL
6499702, at *4 (C.D. Cal. Dec. 10, 2013) (concluding that a
delay of approximately fifteen months “indicate[d] a lack of
diligence”). Fue’s fourteen-month delay falls squarely
between these two California federal court decisions finding
a lack of diligence.
We can dispose of the dissent’s reliance on Knight v.
Schofield, 292 F.3d 709 (11th Cir. 2002), in short order. See
Dissenting Opinion, p. 22. As the dissent acknowledges, the
Eleventh Circuit almost immediately distinguished Knight.
12 FUE V. BITER
See Dissenting Opinion, p. 22 n.4; see also Drew, 297 F.3d at1288 & n.3 (distinguishing Knight and concluding that a
sixteen-month delay reflected a lack of diligence). Although
the dissent takes issue with the basis upon which the Eleventh
Circuit distinguished its prior precedent, see Dissenting
Opinion, p. 22 n.4, the fact remains that Knight was
distinguished by the same court that authored it.
The dissent accuses both the majority and the Eleventh
Circuit of relying “on an instinctive sense of what seems like
a long time . . .” Dissenting Opinion, p. 24 (emphasis in the
original). However, the exact same point could be made
regarding the dissent’s view.
At bottom, comparing the facts of this case to those
within and without our circuit leads us to the conclusion that
the district court committed no error in denying Fue’s request
for equitable tolling, In particular, unlike the prisoner in
Huizar, Fue took no initiative to inquire about the status of
his petition within a time frame we and other courts have
recognized as reasonably diligent. The district court properly
dismissed Fue’s petition as untimely.
AFFIRMED.
BYBEE, Circuit Judge, dissenting:
In one of his brilliant books explaining physics to non-
rocket scientists, Brian Greene wrote that “[o]f the many
strange things Einstein’s work revealed, the fluidity of time
is the hardest to grasp.” Although “everyday experience
convinces us that there is an objective concept of time’s
FUE V. BITER 13
passage,” in fact, “[t]he passage of time depends on the
particulars . . . of the measurer.” Brian Greene, The Hidden
Reality: Parallel Universes and the Deep Laws of the Cosmos
66 (2011). As in physics, so in law. At least in equity. In a
case that turns on equitable tolling, unlike one involving
jurisdictional limitations, we must measure time “with
awareness of the fact that specific circumstances, often hard
to predict in advance, . . . warrant special treatment in an
appropriate case.” Holland v. Florida, 560 U.S. 631, 650
(2010).
No one disputes that Steven Fue has alleged extraordinary
circumstances, beyond his control, that caused him to file his
federal habeas petition after the statutory deadline. The
California Supreme Court decided his habeas petition six
months after he filed it, but the court never told Fue. In fact,
when he wrote the court to inquire about his petition, the
Clerk told him the court had “no record” of his petition. We
have held that this very situation can justify equitable tolling
of AEDPA’s statute of limitations if the prisoner has acted
with reasonable diligence. Ramirez v. Yates, 571 F.3d 993,
997 (9th Cir. 2009).
Yet, with Newtonian precision, the majority holds that
Fue did not behave reasonably—and is thus ineligible for
equitable tolling—because he waited 14 months before
sending a letter to the California Supreme Court asking about
the status of his petition. Maj. Op. at 5–6. But I fail to see
how this was at all unreasonable. The California Supreme
Court is required to “promptly” send a copy of its decisions
to prisoners. See Cal. R. Ct. 8.387(a)(2), 8.532(a). Fue had
not received a copy of any decision, and no statute or rule
requires prisoners to seek periodic status updates from the
California Supreme Court. Perhaps we should expect
14 FUE V. BITER
prisoners to inquire with the court after an unusually long
time has passed with no decision, but 14 months is not an
unusually long time for a court—least of all the California
Supreme Court—to decide a petition. See Huizar v. Carey,
273 F.3d 1220, 1224 (9th Cir. 2001) (21 months “not an
unusually long time [for a prisoner] to wait for a court’s
decision”).
Why would we require Fue, and other prisoners like him,
to pursue a “steady stream of correspondence,” Maj. Op. at 8,
with the California Supreme Court to verify that the court has
followed its own rules? This is a burden I expect neither the
prisoners nor the California Supreme Court will welcome. I
respectfully dissent.
I
“The diligence required for equitable tolling purposes is
‘reasonable diligence,’ not ‘maximum feasible diligence.’”
Holland, 560 U.S. at 653 (citations and internal quotation
marks omitted). Reasonable diligence is not an exacting
standard. It simply requires “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).
The key “particular circumstances” in this case are as
follows: Fue, proceeding without the aid of counsel, filed a
habeas corpus petition with the California Supreme Court.
Unlike superior courts in California, the California Supreme
FUE V. BITER 15
Court has no deadline for deciding habeas petitions.1 And,
unlike habeas proceedings in the superior courts, no rule
permits prisoners proceeding before the California Supreme
Court to file a request for decision after a certain amount of
time has elapsed.2 The California Supreme Court has,
however, obligated itself by rule of court to “promptly”
inform prisoners when it renders a decision on their habeas
petitions.3 Habeas petitioners such as Fue may rely on this
rule and look for “prompt[]” delivery when the California
Supreme Court reaches a decision. Conversely, relying on
this rule, they may reasonably assume the court has not
reached a decision when the clerk has not “sen[t them] copies
showing the filing date.”
We are asked to decide what effort a reasonable person
might be expected to undertake in the circumstance in which
1
Superior courts “must rule on a petition for writ of habeas corpus
within 60 days after the petition is filed.” Cal. R. Ct. 4.551(a)(3)(A); see
also Cal. R. Ct. 4.550(a) (providing that Rule 4.551 “applies to habeas
corpus proceedings in the superior court”). Although the California
Supreme Court has no analogous deadline for deciding habeas petitions,
it does have a deadline for deciding petitions for review of lower court
decisions. See Cal. R. Ct. 8.512(b) (petitions for review filed with the
California Supreme Court are “deemed denied” if the court does not rule
on the petition or grant an extension within 60 days).
2
See Cal. R. Ct. 4.551(a)(3)(B) (“If the [superior] court fails to rule on
the petition within 60 days of its filing, the petitioner may file a notice and
request for ruling.”).
3
See Cal. R. Ct. 8.532(a) (“The Supreme Court clerk must promptly file
all opinions and orders issued by the court and promptly send copies
showing the filing date to the parties . . . .”); see also Cal. R. Ct.
8.387(a)(2) (providing that Rule 8.532(a) governs the filing of the
California Supreme Court’s decisions in habeas corpus proceedings).
16 FUE V. BITER
the court has not sent notice of a decision. In answering this
question, we must keep in mind that, “[f]rom a litigant’s
perspective, it is a difficult, if not impossible endeavor, to
estimate how long a reviewing court will take to decide a
[petition].” Miller v. Collins, 305 F.3d 491, 496 (6th Cir.
2002). Understanding this, courts have “see[n] no point in
obliging a pro se litigant to pester a state court with frequent
inquiries as to whether a pending [petition] has been decided,
at least until a substantial period of time has elapsed.” Diaz
v. Kelly, 515 F.3d 149, 155 (2d Cir. 2008).
In my view, a “reasonable person,” knowing that the court
will send notice when a decision has been made, might
refrain from asking the court about a petition until the petition
has remained pending for an unusually long time. How long
is unusually long depends, of course, “on the particulars . . .
of the measurer.” In light of the “particulars” of a pro se
prisoner, and perhaps thinking of our own docket, we have
charitably allowed that even 21 months is “not an unusually
long time to wait for a court’s decision.” Huizar v. Carey,
273 F.3d 1220, 1224 (9th Cir. 2001).
In Huizar, a California superior court failed to respond to
a state prisoner’s habeas petition. Knowing that the superior
court must act within 60 days, Cal. R. Ct. 4.551(a)(3)(A),
Huizar first inquired about his petition two months after it
was filed. When he got no reply he waited 21 months before
mailing a second copy to the same court. He waited five
months, got no reply, and sent another letter. Huizar went a
total of 28 months before learning that his petition had not
been received by the superior court and then another four
months before filing his federal petition. Id. at 1222. The
district court dismissed his federal petition as untimely. We
reversed, however, and instructed the district court to
FUE V. BITER 17
determine on remand if Huizar’s efforts were as he claimed
them to be and, if so, to “deem his petition timely and
consider it on the merits.” Id. at 1224.
It is very difficult to square Huizar with our decision in
this case. The majority attempts to distinguish Huizar on the
ground that the prisoner there engaged in a “steady stream of
correspondence” with a non-responsive court. Maj. Op. at
8–9. But that misses the point. The point is that Huizar
found a delay of 21 months between correspondences
followed by a delay of five months to be a “steady stream of
correspondence.” Given the misleading answer Fue received
from the Clerk of the California Supreme Court in response
to his January 31, 2011 inquiry (I discuss the details of the
Clerk’s response below), Fue, hardly less than Huizar,
sufficiently corresponded with a non-responsive court.
Fue never delayed so much as 21 months. Indeed, in
comparison with Huizar, he was downright chatty. After 14
months and no word from the California Supreme Court, Fue
took the initiative and sent a letter to the Clerk of the
California Supreme Court. A prisoner could show his
diligence by sending inquiries to a state court each and every
day after the case has been submitted. Yet that does not mean
that a prisoner who shows something less than hyper
diligence in initially reaching out and then following up with
a state court has acted unreasonably. In other words, simply
because Fue was less proactive than some other prisoner does
not mean Fue has acted unreasonably. In light of Fue’s pro
se status and the California Supreme Court’s obligation to
notify him of its decision, I believe Fue’s actions were
entirely consistent with what a reasonable person might be
expected to do.
18 FUE V. BITER
II
Ordinarily, a prisoner must show reasonable diligence not
only before but also after receiving delayed notice of a state
court’s decision. Miller, 305 F.3d at 496 (considering
whether the petitioner “acted promptly after receiving notice
of the appellate court’s decision”); see, e.g., Earl v. Fabian,
556 F.3d 717, 724 (8th Cir. 2009) (petitioner who filed
habeas petition more than eight months after receiving
delayed notice failed to pursue rights with diligence). Here,
however, Fue need not meet that requirement because he did
not receive notice of the California Supreme Court’s decision
until after he filed his federal habeas petition.
The majority says Fue received notice when the Clerk of
the California Supreme Court informed him, in a letter dated
February 3, 2011, “that his habeas case was no longer active.”
Maj. Op. at 4. But the Clerk told him no such thing. The
Clerk’s February 3, 2011 letter 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.” The misleading implication of the
Clerk’s response was that the court never received Fue’s
November 2009 petition. Certainly that was how Fue
understood it. He “did not know what to think of it,” so he
wrote to his appellate lawyer and asked, “What should I do?”
The majority understands this letter differently; it thinks the
letter informed Fue “that his case [was] no longer active” and
that there was therefore “no pending matter[] before the
court.” Maj. Op. at 4 n.2. I do not think that is a fair reading
of the Clerk’s language quoted above. Even Fue’s lawyer
understood the Clerk’s response to mean the court never
received Fue’s petition. He told Fue to “explain to the Court
FUE V. BITER 19
. . . that you already sent your petition” and to seek leave to
file the petition again.
Taking the letter at face value, Fue instead decided to file
his federal habeas petition immediately. In the questionnaire
attached to his petition, he wrote that the date of the
California Supreme Court’s decision on his habeas petition
was “N/A” and the result was “waiting for a response still.”
Fue claims—and the State does not dispute—that “the first
[he] knew of the denial was when he read the state’s motion
to dismiss the petition in this case.” By that time, of course,
he had already filed his federal habeas petition, so his need to
act with post-notice diligence was moot.
In any event, even if the Clerk’s February 3, 2011 was
sufficient to put Fue on notice that his state habeas petition
had been denied, Fue still acted with complete diligence after
receiving notice of the court’s decision. Based on the facts as
he understood them, Fue expected to have three months after
receiving notice of the California Supreme Court’s decision
to prepare and file his federal habeas petition. (He actually
had six months, but his appellate lawyer misinformed him.)
Yet once he learned that the California Supreme Court had
“no record” of his petition, he filed his federal petition within
32 days. Cf. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.
2000) (petitioner who filed federal habeas petition within one
month of receiving delayed notice pursued rights with
diligence). And Fue was not just sitting on his hands; those
32 days included the time he took to write his appellate
lawyer for advice on how to proceed and then to wait for his
lawyer’s response. These actions clearly show that Fue made
“the effort that a reasonable person might be expected to
deliver under his or her particular circumstances.” Busby,
661 F.3d at 1015.
20 FUE V. BITER
III
The majority bases its holding on what other circuits have
held in “similar cases.” Maj. Op. at 5. But the majority does
not effectively deal with the cases most similar to ours, and
the unreasonable-delay cases the majority relies on are either
unpersuasive or not similar at all.
The majority divides the cases into two groups. First are
the cases in which the petitioner inquired about a petition
after less than 10 months; in these cases, the courts found, the
petitioners acted with sufficient diligence. Id. at 5. Then are
the cases in which the petitioner waited sixteen months or
more; those petitioners were deemed not to have acted with
sufficient diligence. Id. The majority reasons that because
Fue’s 14 months is “closer to the majority of cases finding a
lack of reasonable diligence,” Fue was therefore not
reasonably diligent. Id. In other words, the majority
effectively argues, because 14 months is closer to 16 months
than it is to 10 months, Fue’s petition cannot be reviewed.
While I cannot argue with the mathematical precision of
the majority’s approach, this certainly draws a fine line. See
Busby, 681 F.3d at 1015 (“Equitable tolling is not the arena
of bright-lines and dates certain[.]”). Under this reasoning, if
Fue had only inquired just six weeks earlier, his delay of 12
and a half months would have been closer to 10 months than
to 16; perhaps then the majority would say he was sufficiently
diligent. But the majority’s line-drawing is an exercise in
rule making, not an exercise in equity. Although the majority
does not create a hard deadline—such as might be found in a
statute of limitations—it has created an asymptote, a limit
that approaches a finite number, around 13 months.
FUE V. BITER 21
The majority draws the line finer still by its treatment of
the Fifth Circuit’s decision in Hardy v. Quarterman, 577 F.3d
596 (5th Cir. 2009). The court there held that a prisoner acted
reasonably in waiting 11 months before contacting the Texas
Court of Criminal Appeals about his petition. Id. at 599.
Two circumstances were particularly relevant to the court:
first, Hardy’s pro se status, and second, the fact that the court
had a legal duty to notify him when it issued a decision. Id.;
see also id. at 598 (noting that, under Texas rules of appellate
procedure, “[t]he [Texas Court of Criminal Appeals] is . . .
legally obligated to notify a petitioner once a decision has
been rendered on his habeas petition”). Looking to its own
prior decisions, the court reasoned that “[Hardy’s] eleven-
month wait is much more analogous to the eight months the
petitioner in [one case] allowed to elapse than the two and a
half-year wait in [another case].” Id. at 599. The court also
cited two of the cases cited by the majority here—Diaz v.
Kelly, 515 F.3d 149, 155 (2d Cir. 2008), and Miller v. Collins,
305 F.3d 491, 495–96 (6th Cir. 2002)—and reasoned that
“the timing of Hardy’s inquiry is not significantly different
from time periods found to be reasonable by other circuits.”
Id.Our case is quite similar to Hardy. Fue, like Hardy, was
representing himself in his habeas proceedings before the
California Supreme Court. The California Supreme Court,
like the Texas Court of Criminal Appeals, is legally required
to notify prisoners “promptly” when it has rendered a
decision on their habeas petitions. See Cal. R. Ct.
8.387(a)(2), 8.532(a). And the timing of Fue’s inquiry is not
significantly different from the time period found reasonable
in Hardy, despite the majority’s assertion that a fourteen-
month delay is “considerably longer” than eleven months.
Maj. Op. at 11.
22 FUE V. BITER
Another similar case the majority fails to appreciate is
Knight v. Schofield, 292 F.3d 709 (11th Cir. 2002). In that
case, the court held that a prisoner’s delay of 18 months
before inquiring about the status of his petition was
reasonable. If Knight’s 18-month delay was reasonable,
Fue’s 14-month delay should be reasonable too.4
Of the three cases cited by the majority that found a
prisoner’s delay unreasonable, two involved much more delay
than 14 months (one was 21 months, the other 24 months),
and both of those cases involved a prisoner who was
represented by counsel. See LaCava v. Kyler, 398 F.3d 271,
276 (3d Cir. 2005) (noting that “LaCava was not entitled to
personal notice of the Pennsylvania Supreme Court’s order”
because he “was represented by counsel during his state
collateral proceedings”); Cousins v. Lensing, 310 F.3d 843,
849 (5th Cir. 2002) (declining to grant equitable tolling
4
Soon after Knight was decided, the Eleventh Circuit distinguished it on
the ground that a court clerk told Knight when he filed his petition that he
would be notified as soon as a decision was issued. Drew v. Dep’t of
Corr., 297 F.3d 1278, 1288 n.3 (11th Cir. 2002). But I believe the Drew
majority was wrong to distinguish Knight on this ground. The court in
Drew treated equitable tolling as though it required equitable estoppel.
See id. (“[M]ost importantly, [Drew] received no assurances from the
Clerk on which to rely.”). But equitable tolling does not; it only requires
reasonable diligence.
Fue, like Drew, “had every reason to expect that the court would
notify him once it ruled on his petition; every litigant knows that the court
is supposed to inform the parties when a result has been reached.” Id. at
1300 (Barkett, J., dissenting). Indeed, as explained above, the California
Supreme Court’s rules obligate it to notify prisoners promptly when it
rules on their habeas petitions. To suggest “that it would make all the
difference to [Fue]’s case had the Clerk of the [California Supreme Court]
told him, at the time he filed his petition, that he would be notified of the
result [would be] disingenuous.” Id.FUE V. BITER 23
because “[t]he petition at issue in this case remained
submitted but unfiled for almost two years, at least in part
because counsel failed adequately to investigate the status of
the case”). These decisions are not similar to ours, so we
should not follow them.
That leaves just one case: Drew v. Department of
Corrections, 297 F.3d 1278 (11th Cir. 2002), which
determined that a prisoner’s 16-month delay before
contacting the court constituted a lack of reasonable
diligence. Notably, however, Drew never held that a 16-
month delay is unreasonable as a matter of law; it held that it
was not clear error for the district court to determine that
Drew’s 16-month delay was unreasonable. Id. at 1289–90.
Indeed, in the face of statistics showing that Drew’s 16-month
wait was not far off of the average time courts take to rule on
petitions like his, the Drew majority refused to consider the
evidence. To consider the evidence, the majority reasoned,
would amount to “de novo fact-finding” and would
“eviscerate[]” the trial court’s central role. Id. at 1289–90 &
n.4; see also id. at 1289 (“Even if there were some reasonable
debate as to Drew’s diligence, . . . the dissent offers no reason
to find clear error . . . .”). Given that the majority here
reviews the district court’s diligence determination de novo,
Maj. Op. at 4, it makes little sense to hold that Fue’s 14-
month delay was unreasonable because it was “close” to the
16-month delay the Drew majority deemed unreasonable
under a highly deferential standard of review.
Even if we set aside the fact that Drew was decided under
clear-error review, the decision is unpersuasive. I see no
basis articulated in the Drew majority’s opinion for its
“finding . . . that a sixteen month ‘delay’ before contacting
the court about the status of the petition constitutes a lack of
24 FUE V. BITER
diligence.” Id. at 1301 (Barkett, J., dissenting). The Drew
majority’s opinion, much like the majority’s opinion here,
appears to be based on an instinctive sense of what seems like
a long time; it does not appear to be based on evidence of
what any reasonable pro se prisoner would know or do under
the circumstances.
If Drew’s 16-month delay was indeed close to the average
amount of time a court takes to decide petitions like his, it
would seem to me that Drew acted well within the bounds of
reasonable diligence. See id. at 1300–01. Ultimately,
however, such proof is unnecessary. Recognizing that it may
be nearly impossible for a pro se prisoner to know how long
it may take a court to decide a petition, Miller, 305 F.3d at
496, a prisoner should be able to trust that the court will send
notice when a decision has been made—at least until the
petition has remained pending for an unusually long time.
And neither 16 months nor 14 months is an unusually long
time. Huizar, 273 F.3d at 1224.5
At bottom, the only case cited by the majority that comes
even remotely close to ours (Drew) involved a longer delay,
was decided under a different and highly deferential standard
of review, and refused to consider evidence that the delay
involved there in fact was reasonable. We should not feel
bound by it.
* * *
5
Indeed, it has taken our court a good deal longer than 14 months to
decide Fue’s case. The wheels of justice often turn slowly, and it is not
unreasonable for a pro se prisoner to be aware of that fact and act
accordingly.
FUE V. BITER 25
Since it is only the extraordinary case in which the state
court fails to send notice of a decision, a rule requiring
prisoners to seek early and frequent updates would be a waste
of time for almost all prisoners, would be a heavy
administrative burden for state courts, and would only
minimally serve the interest of preventing stale federal habeas
petitions. Fue affirmatively inquired with the California
Supreme Court about the status of his petition after 14
months, he sent a letter to his appellate attorney, and he then
promptly filed his federal habeas petition. In doing all this,
Fue acted just as we should expect a reasonable person in his
shoes to act. I would give him his day in federal court.
Accordingly, I dissent.