Harris v. Carter ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY L. HARRIS,  No. 06-35313
Petitioner-Appellant,
v.  D.C. No.
CV-05-00885-JLR
SANDRA CARTER, Superintendent,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted
January 11, 2008—Seattle, Washington
Filed February 8, 2008
Before: Robert R. Beezer, A. Wallace Tashima, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Beezer
1843
HARRIS v. CARTER 1845
COUNSEL
David Zuckerman (argued), Sheryl Gordon McCloud
(briefed), Seattle, Washington, for the petitioner-appellant.
Gregory J. Rosen, Olympia, Washington, Assistant Attorney
General, Criminal Justice Division, for the respon-
dent-appellee.
OPINION
BEEZER, Circuit Judge:
Jerry Harris (“Harris”) appeals the district court’s order dis-
missing Harris’ 28 U.S.C. § 2254 petition for a writ of habeas
1846 HARRIS v. CARTER
corpus as time-barred and concluding that Harris is not enti-
tled to equitable tolling. Harris argues that he is entitled to
equitable tolling because he relied on our precedent. We were
subsequently overruled by the Supreme Court in a decision
that holds that untimely state habeas corpus petitions do not
toll the federal statute of limitations for filing a federal peti-
tion. Harris’ federal habeas petition, which would have been
timely under our existing precedent, became time-barred
when the Supreme Court decided Pace v. DiGuglielmo, 544
U.S. 408 (2005). Because we hold that Harris is entitled to
equitable tolling, we reverse the judgment of the district court
dismissing Harris’ petition as untimely and remand to permit
the district court to consider the merits of Harris’ petition.
I
On October 21, 1995, Rene Vivas (“Vivas”) was shot and
killed outside Murdock’s Restaurant and Bar in Ferndale,
Washington. A Washington Superior Court jury returned a
guilty verdict against Harris on a charge of aggravated first
degree murder for his role in Vivas’ death. The trial court sen-
tenced Harris to life in prison without parole. The Washington
Court of Appeals affirmed Harris’ conviction. The Supreme
Court of Washington denied Harris’ petition for review. Har-
ris’ conviction became final on May 29, 2000, which was 90
days after the Washington Supreme Court denied Harris’ peti-
tion for review on direct appeal.1
Harris filed three successive personal restraint petitions
(“PRP”) in the Washington courts. On February 20, 2001, 267
days after his conviction became final, Harris filed his first
1
A judgment becomes final for purposes of 28 U.S.C. § 2244(d) when
the period for filing a petition for certiorari in the U.S. Supreme Court
expires. Shannon v. Newland, 410 F.3d 1083, 1086 (9th Cir. 2005). Peti-
tions for certiorari must be filed in the U.S. Supreme Court within 90 days
after the supreme court of the state in which the prisoner was convicted
issues its opinion or denies review. Bowen v. Roe, 188 F.3d 1157, 1159
(9th Cir. 1999).
HARRIS v. CARTER 1847
PRP in the Washington Court of Appeals. On August 25,
2003, the Washington Court of Appeals affirmed the convic-
tion. On December 8, 2003, the Commissioner of the
Supreme Court of Washington (“Commissioner”) entered a
ruling denying review.2 On February 4, 2004, the Supreme
Court of Washington denied Harris’ petition to modify the
Commissioner’s ruling.
Harris filed his second PRP 29 days later, on March 4,
2004. On July 27, 2004, the Commissioner entered a ruling
dismissing Harris’ petition as untimely because it contained
some untimely claims. On October 5, 2004, the Supreme
Court of Washington denied Harris’ petition to modify the
Commissioner’s ruling.
Harris filed his third PRP six days later, on October 11,
2004. On March 14, 2005, the Commissioner dismissed Har-
ris’ petition as untimely. On June 1, 2005, the Supreme Court
of Washington denied Harris’ petition to modify the Commis-
sioner’s ruling.
II
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Harris had one year from the date his con-
viction became final to file a habeas corpus petition in federal
court. 28 U.S.C. § 2244(d)(1). AEDPA tolls the one-year lim-
itations period while a “properly filed application” for post-
conviction review is pending in state court. 28 U.S.C.
§ 2244(d)(2).
2
The Commissioner is a staff member of the Supreme Court of Wash-
ington, and is appointed by the court. The Commissioner screens petitions
for review to the court, and has authority to issue rulings denying review.
See Wash. R. App. P. 1.1(f); Wash. Sup. Ct. Admin. R. 15(c). If the Com-
missioner denies a petition for review, the petitioner may file a motion to
modify the Commissioner’s ruling. In such cases, the court will examine
the matter and will either grant or deny the motion to modify.
1848 HARRIS v. CARTER
The U.S. Supreme Court holds that untimely state post-
conviction petitions are not “properly filed” under AEDPA,
and do not toll AEDPA’s statute of limitations. Pace, 544
U.S. at 417. In Harris’ case, AEDPA’s statute of limitations
ran continuously from February 4, 2004 until he filed his fed-
eral habeas petition over 15 months later. Harris’ federal
habeas petition was time-barred under the rule announced in
Pace.
Until the Supreme Court decided Pace on April 27, 2005,
our circuit law was different. Our precedent stated that an
untimely Washington State post-conviction petition was
“properly filed” for purposes of § 2244(d) and tolled the stat-
ute of limitations while the petition was pending in the state
courts. Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir.
2001). Under our rule in Dictado, AEDPA’s clock was
stopped while Harris’ second and third PRPs were pending.
Under Dictado, Harris would have had 63 days after the
Supreme Court of Washington’s denial of his third PRP
within which to file his federal habeas petition.3
On May 11, 2005, Harris filed his federal habeas corpus
petition in the U.S. District Court for the Western District of
Washington. Appellee Sandra Carter (the “State”) filed a
motion to dismiss arguing that Harris’ federal habeas petition
was time-barred under Pace. Harris did not contest that his
petition would be time-barred under a strict application of
Pace, but argued that he was entitled to equitable tolling of
the statute of limitations because he relied on controlling
3
We hold that the statute of limitations is tolled for “all of the time dur-
ing which a state prisoner is attempting, through proper use of state court
procedures, to exhaust state court remedies with regard to a particular
post-conviction application.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th
Cir. 1999), cert. denied, 529 U.S. 1104 (2000) (internal quotations and
citation omitted). Under the rules established in Nino and Dictado, Harris’
PRPs were pending, and the statute of limitations was tolled, until the
Washington Supreme Court denied Harris’ petition to modify the Com-
missioner’s ruling for each PRP.
HARRIS v. CARTER 1849
Ninth Circuit precedent in waiting to file his federal habeas
petition. The magistrate judge issued a report and recommen-
dation concluding that the petition was time-barred and that
Harris was not entitled to equitable tolling. The district court
adopted the report and recommendation and dismissed Harris’
petition. Harris timely appeals.
III
We review de novo the denial of a petition for a writ of
habeas corpus brought under 28 U.S.C. § 2254. Alvarado v.
Hill, 252 F.3d 1066, 1068 (9th Cir. 2001). The facts underly-
ing this claim for tolling of AEDPA’s limitations period are
undisputed. We review de novo whether the statute of limita-
tions should be tolled. Espinoza-Matthews v. California, 432
F.3d 1021, 1025 (9th Cir. 2005).
IV
The sole question presented is whether we should strictly
apply the Supreme Court’s rule announced in Pace on a retro-
active basis, or whether we should grant equitable tolling
given Harris’ reliance on our controlling precedent in Dic-
tado. We hold that equitable tolling should be granted under
these circumstances.
A
The parties first dispute which standard we should apply to
determine whether equitable tolling is justified in habeas
cases such as this one.4 The State refers to our observation
that equitable tolling is available only when “extraordinary
circumstances beyond a prisoner’s control make it impossible
4
Although the Supreme Court has never explicitly decided whether
§ 2244(d) allows for equitable tolling, see Lawrence v. Florida, 127 S. Ct.
1079, 1085 (2007), we hold that it does, see, e.g., Espinoza-Matthews, 432
F.3d at 1026.
1850 HARRIS v. CARTER
to file a petition on time.”5 See, e.g., Stillman v. LaMarque,
319 F.3d 1199, 1202 (9th Cir. 2003). Harris argues that the
Supreme Court articulated a new and less strict standard in
Pace. In Pace, the Supreme Court says that a habeas peti-
tioner must show “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance has
stood in his way.” Pace, 544 U.S. at 418; see also Lawrence
v. Florida, 127 S. Ct. 1079, 1085 (2007).
Our cases since Pace have not settled on a consistent stan-
dard. Compare, e.g., Raspberry v. Garcia, 448 F.3d 1150,
1153 (9th Cir. 2006) (citing Pace and applying its standard),
with Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006)
(applying the standard articulated in Stillman). Our only case
to address the issue noted the possibility that Pace “lowered
the bar somewhat” compared with our previous standard. See
Espinoza-Matthews, 432 F.3d at 1026 n.5. The case does not
decide whether a substantive difference exists between the
two standards. See id.
We need not decide whether the Pace standard differs from
our previous standard because, as discussed below, the argu-
able distinctions between the two standards are not at issue in
this case.
B
The State argues that Harris does not meet our standard for
equitable tolling set forth above. The State says that Harris
5
Despite the unequivocal “impossibility” language in our standard, we
have not insisted that it be literally impossible for a petitioner to file a fed-
eral habeas petition on time as a condition of granting equitable tolling.
We have granted equitable tolling in circumstances where it would have
technically been possible for a prisoner to file a petition, but a prisoner
would have likely been unable to do so. See, e.g., Mendoza v. Carey, 449
F.3d 1065, 1069-71 (9th Cir. 2006) (holding that Spanish-speaking peti-
tioner who did not have access to Spanish language legal materials alleged
facts that, if true, could entitle him to equitable tolling).
HARRIS v. CARTER 1851
failed to file diligently his federal habeas petition in a manner
that ensured it would be timely. Harris made a deliberate, tac-
tical choice, the State argues, in waiting to file his federal
habeas petition and pursuing post-conviction relief in the state
courts. Nothing beyond Harris’ own tactical decision, the
State further argues, prevented Harris from filing a timely fed-
eral habeas petition. The State urges that Harris should be
held responsible for the consequences of his own litigation
choices, and should not be “rescue[d]” from having made a
poor tactical decision.
[1] The State’s argument ignores the rationale behind the
principle of equitable tolling that formed the basis for the
standards articulated in Pace and Stillman. We have stated
that the purpose of the equitable tolling doctrine “is to soften
the harsh impact of technical rules which might otherwise
prevent a good faith litigant from having a day in court.”
Jones v. Blanas, 393 F.3d 918, 928 (9th Cir. 2004). Equitable
tolling also serves to “prevent the unjust technical forfeiture
of causes of action.” Id. Equitable tolling is typically granted
when litigants are unable to file timely petitions as a result of
external circumstances beyond their direct control. See Still-
man, 319 F.3d at 1202. Equitable tolling is typically denied
in cases where a litigant’s own mistake clearly contributed to
his predicament. See Lawrence, 127 S. Ct. at 1085.
[2] The fact that Harris could have filed a timely federal
habeas petition at a certain point in time is not dispositive.
The critical fact here is that Harris relied in good faith on
then-binding circuit precedent in making his tactical decision
to delay filing a federal habeas petition. Harris’ failure to file
a timely petition is not the result of oversight, miscalculation
or negligence on his part, all of which would preclude the
application of equitable tolling. See Lawrence, 127 S. Ct. at
1085. Harris was undoubtedly aware of when AEDPA’s stat-
ute of limitations would expire under our rule in Dictado.
Harris presumably chose his tactical strategy precisely
because he believed that, under Dictado, he could pursue
1852 HARRIS v. CARTER
relief in state courts without jeopardizing his ability to file a
federal habeas petition.
[3] Harris’ circumstances justify equitable tolling under
both our circuit’s standard and the Pace standard. Harris dili-
gently pursued his rights. He filed successive petitions for
state post-conviction relief while ensuring that enough time
would remain to file a federal habeas petition under the then-
existing Dictado rule. The Supreme Court’s overruling of the
Dictado rule made it impossible for Harris to file a timely
petition. Harris’ petition became time-barred the moment that
Pace was decided. Finally, Harris had no control over the
operative fact that caused his petition to become untimely—
the Supreme Court’s decision in Pace. These are precisely the
circumstances in which equitable principles justify tolling of
the statute of limitations.
C
Harris argues that Supreme Court case law counsels in
favor of granting equitable tolling in this case. In Pliler v.
Ford, 542 U.S. 225 (2004), the Supreme Court reversed our
holding that district courts were required to provide habeas
petitioners with a specific warning that their case could
become time-barred. Id. at 231. The Supreme Court remanded
the case to us for consideration of equitable tolling given our
“concern that respondent had been affirmatively misled” by
the district court. Id. at 234. The unstated implication in the
Supreme Court’s opinion is that equitable tolling would likely
be appropriate in at least some situations where a petitioner is
affirmatively misled by a district court. See id.; see also id. at
235 (O’Connor, J., concurring) (“Nevertheless, if the peti-
tioner is affirmatively misled, either by the court or by the
State, equitable tolling might well be appropriate.”); Brambles
v. Duncan, 412 F.3d 1066, 1070 (9th Cir. 2005) (“Consistent
with the Court’s decision in Pliler, the sole issue before us is
whether [petitioner] was affirmatively misled by the district
court’s instructions.”).
HARRIS v. CARTER 1853
[4] Pliler does not compel us to grant equitable tolling in
this case. The Supreme Court’s decision to remand for consid-
eration of equitable tolling nonetheless supports our conclu-
sion that equitable relief is justified under these
circumstances. In Pliler, the Supreme Court remanded
because of the possibility that a petitioner relied upon, and
was misled by, a district court’s representations. Harris’
request for equitable tolling arises from his reliance on our
holding that was subsequently declared to be legally errone-
ous. Our holding misled Harris into believing that he had
ample time to file his federal habeas petition, whereas in real-
ity time was running out. Although Harris was misled by reli-
ance on our precedent rather than by a statement of the court
addressed directly to him, the consequences were the same.
Harris’ petition became time-barred.
D
Harris argues that authority from other federal courts sup-
port his request for equitable tolling. We agree. The Tenth
Circuit has granted equitable tolling on facts similar to those
here. See York v. Galetka, 314 F.3d 522 (10th Cir. 2003). In
York, the district court had previously dismissed the petition-
er’s second federal habeas petition for failure to exhaust all
claims. Id. at 526. The petitioner did not immediately file a
third federal petition raising only the exhausted claims. Id.
Instead, petitioner waited several months, attempting to
exhaust his remaining state claims before filing another fed-
eral habeas petition. Id. At the time, the law was unclear
whether the pendency of a federal habeas petition tolled
AEDPA’s limitations period. See id. at 528. Petitioner’s third
federal petition would be timely only if the law was resolved
in his favor.
After petitioner filed his third habeas petition, the Tenth
Circuit resolved the law in petitioner’s favor. The Tenth Cir-
cuit held that a pending federal habeas petition did toll the
statute of limitations. Id.; see Petrick v. Martin, 236 F.3d 624,
1854 HARRIS v. CARTER
629 (10th Cir. 2001). The Supreme Court overruled the Tenth
Circuit in Duncan v. Walker, 533 U.S. 167 (2001). As a
result, petitioner’s third federal habeas petition became
untimely.
The Tenth Circuit held that petitioner was entitled to equi-
table tolling.6 The Tenth Circuit held that equitable tolling
was justified because “York diligently pursued his claims[,]
. . . the law in this circuit was unsettled on the issue [whether
a pending federal habeas petition tolled the statute of limita-
tions] and the statute is ambiguous.” Id. at 528.7
[5] Like the petitioner in York, Harris diligently pursued his
habeas claims. In York, as here, the petitioner’s habeas peti-
tion became untimely only after the Supreme Court later
altered the law. The facts here present an even more compel-
ling argument for equitable tolling than those in York. Harris
relied on controlling circuit precedent, rather than an ambigu-
ity in the law, in making his strategic decision to delay his
federal petition while pursuing relief in the state courts. The
Supreme Court’s subsequent overruling of our controlling
precedent constitutes the type of extraordinary circumstances
that justifies a grant of equitable tolling.8
6
The Tenth Circuit employed a “rare and exceptional circumstances”
standard similar to the standards articulated in Pace and Stillman in deter-
mining that equitable tolling was justified. York, 314 F.3d at 527.
7
We also recognize that a district court has granted equitable tolling to
a petitioner on facts substantively identical to those here. See De Jesus v.
Miller, 215 F. Supp. 2d 410, 412-13 (S.D.N.Y. 2002).
8
We do not decide the question specifically answered by the Tenth Cir-
cuit in York—whether equitable tolling should be granted when a peti-
tioner waits to file a habeas petition despite an ambiguity in the law, and
that ambiguity is later resolved by a court in a manner that results in the
petition being untimely. The argument for equitable tolling in the situation
encountered in York would be less persuasive than the argument for equi-
table tolling that Harris presents here.
HARRIS v. CARTER 1855
V
[6] Equitable principles dictate that we toll AEDPA’s stat-
ute of limitations in the rare case where a petitioner relies on
our legally erroneous holding in determining when to file a
federal habeas petition. We hold that Harris is entitled to equi-
table tolling of AEDPA’s one-year statute of limitations. Con-
sequently, Harris’ federal habeas petition is timely. We
reverse the judgment of the district court dismissing Harris’
petition as untimely and remand for further proceedings con-
sistent with this opinion.
REVERSED and REMANDED.