Thomas Dickershaid v. Matthew Martel , 648 F. App'x 618 ( 2016 )

FILED
NOT FOR PUBLICATION
APR 15 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS F. DICKERSHAID, No. 13-55180
Petitioner - Appellant, D.C. No. 2:12-cv-02206-GAF-
PLA
v.
MATTHEW MARTEL, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted April 8, 2016
Pasadena, California
Before: FARRIS, SENTELLE**, and M. SMITH, Circuit Judges.
Petitioner, Thomas Dickershaid, appeals the district court’s dismissal of his
Petition for Writ of Habeas Corpus as untimely for failing to comply with the Anti-
Terrorism and Effective Death Penalty Act’s one-year statute of limitations. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David Bryan Sentelle, Senior Circuit Judge for the
U.S. Court of Appeals for the District of Columbia Circuit, sitting by designation.
have jurisdiction under 28 U.S.C. § 2253 and we review the denial of the petition
as well as whether the AEDPA statute of limitations should be equitably tolled de
novo. We reverse the district court’s dismissal on the basis that Petitioner is
entitled to equitable tolling of the AEDPA statute of limitations for the entire time
he was deprived of one box of his legal materials, including his fully prepared
federal habeas petition.
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 under AEDPA to seek federal habeas
review. Holland v. Florida, 560 U.S. 631, 649 (2010). The intentional confiscation
of a prisoner’s habeas corpus petition and related legal papers by a corrections
officer is an “extraordinary circumstance” for which we grant equitable tolling. See
Lott v. Mueller, 304 F.3d 918, 924–25 (9th Cir. 2002). The entire time a pro se
habeas petitioner is deprived of his legal materials may be equitably tolled. See
Espinoza-Matthews v. California, 432 F.3d 1021, 1028 (9th Cir. 2005). It is not
disputed that prison officers confiscated Petitioner’s habeas petition and other legal
materials, in violation of prison policy, on September 27, 2011, and did not return
those materials to him until February 29, 2012, when he immediately filed his
habeas petition in federal court. The wrongful deprivation of Petitioner’s legal
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materials was an extraordinary circumstance that prevented him from filing a
petition before the AEDPA limitations period expired on October 14, 2011.
The diligence required for equitable tolling is “reasonable diligence” and not
“maximum feasible diligence.” Holland, 560 U.S. at 653. Repeated
correspondence with the court or with authority figures in a position to remove the
impediment to filing a habeas petition is a strong signal of reasonable diligence.
See id.; Huizer v. Carey, 273 F.3d 1220, 1224 (9th Cir. 2001). Petitioner filed nine
grievances, repeatedly asked prison officials to find and return his legal materials,
went to the storage area where confiscated property is housed on multiple
occasions, and wrote to the court. He also wasted no time filing his federal habeas
petition on the same day it was returned to him. Thus, Petitioner was reasonably
diligent. See Holland, 560 U.S. at 653.
Furthermore, the district court’s diligence analysis was based on improper
reasoning. First, the district court inferred a lack of due diligence based on the
incorrect conclusion that Petitioner contributed to the confiscation of his legal
materials. Petitioner’s materials were confiscated in contravention of a prison
policy permitting one cubic foot of legal materials in excess of the six cubic feet of
other allowable property. See 15 Cal. Code Regs. § 3161. Petitioner did not
contribute to the confiscation of his habeas petition when he possessed it in
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compliance with prison protocols. Reasonable diligence does not require a prisoner
to take exceptional precautions to protect his legal files from arbitrary or improper
confiscation. The district court also mistakenly gave weight to Petitioner’s failure
to present evidence that he attempted to save his federal habeas petition from being
confiscated but was prevented from doing so. Imposing this evidentiary burden
runs afoul of Holland’s holding that a prisoner is only required to show reasonable
diligence, and runs against the grain of this Circuit’s precedents requiring courts
“to ensure that a prisoner’s access to the courts is ‘adequate, effective, and
meaningful.’” Lott v. Mueller, 304 F.3d 918, 924 (9th Cir. 2002) (quoting Rand v.
Rowland, 154 F.3d 952, 958 (9th Cir. 1998) (en banc)).
Second, the district court erred in faulting Petitioner for failing to file a
petition earlier in the AEDPA limitations period. The diligence requirement
mandates that a habeas petitioner act with reasonable diligence in filing his petition
after an extraordinary circumstance prevents a timely filing. See Valverde v.
Stinson, 224 F.3d 129, 134 (2d Cir. 2000). A petitioner should not be penalized for
taking the time allowed under AEDPA to aptly prepare and file a petition when an
extraordinary event occurring late in the limitations period prevents a timely filing.
See id. at 136. Petitioner’s delay was not caused by neglect in preparing a petition
or by ordinary constraints attendant to prison life, such as limited access to the law
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library or the copier. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009).
Rather, the extraordinary, arbitrary confiscation of his habeas petition caused the
untimely filing. Petitioner’s decision not to file earlier in the AEDPA limitations
period is not relevant to the diligence inquiry.
Third, this Court has repeatedly recognized that a petitioner’s access to his
legal file is necessary to the preparation and filing of a habeas petition.
Espinoza-Matthews, 432 F.3d at 1027–28 (quoting Spitsyn v. Moore, 345 F.3d 796,
801 (9th Cir. 2003)). It was therefore not proper to fault Petitioner for not filing a
form petition when he did not have access to his completed habeas petition or
related legal files. Cf. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1014 (9th Cir.
2009).
Petitioner is entitled to equitable tolling of the entire time he was deprived of
his legal materials, from September 27, 2011, until February 12, 2012. When his
AEDPA clock began running again on October 12, 2011, two days remained in his
limitations period to timely file a federal habeas petition. Petitioner filed on the
same day his legal files were returned to him, making his petition timely.
In an order dated February 3, 2016, we expanded the certificate of
appealability to review whether the district court erroneously denied Petitioner’s
pro se motion to stay his 2009 federal habeas petition. Any alleged error in the
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2009 habeas proceeding is not an order or ruling that produced the current
judgment on appeal. See Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir.
1984). We do not have jurisdiction under 28 U.S.C. § 1291 to decide this question.
REVERSED AND REMANDED.
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