Chaffer v. Prosper ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW PASQUALE CHAFFER,  No. 07-16853
Petitioner-Appellant,
D.C. No.
v.
 CV-06-00950-LKK
K. PROSPER; EDMUND G. BROWN,
ORDER AND
JR.,* Attorney General,
OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Argued and Submitted
August 14, 2008—San Francisco, California
Submission Withdrawn September 2, 2008
Resubmitted September 1, 2009
Filed January 19, 2010
Before: Diarmuid F. O’Scannlain and Barry G. Silverman,
Circuit Judges, and James K. Singleton,**
Senior District Judge.
Per Curiam Opinion
*Edmund G. Brown, Jr. is substituted for his predecessor, Bill Lockyer,
as Attorney General of the State of California, pursuant to Fed. R. App.
P. 43(c)(2).
**The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
1209
CHAFFER v. PROSPER 1211
COUNSEL
Timothy J. Foley, Sacramento, California, argued the cause
for the appellant and filed briefs. With him on the briefs was
Daniel J. Broderick.
David Andrew Eldridge, Deputy Attorney General, Sacra-
mento, California, argued the cause for the appellees and filed
a brief. With him on the brief were Edmund G. Brown, Jr.,
Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney Gen-
eral, and Brian G. Smiley, Supervising Deputy Attorney Gen-
eral.
ORDER
Appellees’ request to publish the unpublished memoran-
dum disposition is GRANTED. The memorandum disposition
filed September 18, 2009, is modified by changing to 542 F.3d 662,
1212 CHAFFER v. PROSPER
663-65 (9th Cir. 2008),>. So modified, the memorandum dis-
position is redesignated as a per curiam opinion and is filed
concurrently herewith.
The panel has unanimously voted to deny the petition for
rehearing. Judges O’Scannlain and Silverman have voted to
deny the petition for rehearing en banc, and Judge Singleton
so recommends. The full court has been advised of the peti-
tion for rehearing en banc and no judge of the court has
requested a vote on it. Fed. R. App. P. 35(b). The petition for
rehearing and the petition for rehearing en banc are DENIED.
No subsequent petitions for rehearing or rehearing en banc
may be filed.
OPINION
PER CURIAM:
Chaffer appeals from the district court’s dismissal of his
federal habeas petition for failure to comply with the one-year
statute of limitations of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). 28 U.S.C. § 2244(d)(1). We review
de novo whether the statute of limitations should be tolled.
Townsend v. Knowles, 562 F.3d 1200, 1204 (9th Cir. 2009).
The facts are set forth in Chaffer v. Prosper, 542 F.3d 662,
663-65 (9th Cir. 2008), and need not be repeated here except
as necessary.
I
Chaffer argues that he is entitled to statutory tolling for the
115-day gap between the denial of his first habeas petition in
the Lassen County Superior Court and the filing of his second
habeas petition in the California Court of Appeal, as well as
for the 101-day gap between the denial of his second habeas
CHAFFER v. PROSPER 1213
petition and the filing of his third habeas petition in the Cali-
fornia Supreme Court. Id. § 2244(d)(2).
[1] Under California’s indeterminate timeliness rule, “[a]s
long as the prisoner filed a petition for appellate review within
a ‘reasonable time,’ he c[an] count as ‘pending’ (and add to
the 1-year time limit) the days between (1) the time the lower
state court reached an adverse decision, and (2) the day he
filed a petition in the higher state court.” Evans v. Chavis, 546
U.S. 189, 193 (2006). Until the California Supreme Court
indicates otherwise, we “operate[ ] on the assumption that
California law . . . [does] not differ significantly from the laws
of other States, i.e., that California’s ‘reasonable time’ stan-
dard [does] not lead to filing delays substantially longer than
those in States with determinate timeliness rules.” Id. at 198.1
[2] Because Chaffer’s filing delays were substantially lon-
ger than the “30 to 60 days” that “most States” allow for filing
petitions, and Chaffer’s petitions offered no justification for
the delays as required under California law, In re Swain, 209
P.2d 793, 795-96 (Cal. 1949)), we fail to see how “unex-
plained delay[s] of this magnitude could fall within the scope
of the federal statutory word ‘pending,’ ” Evans, 546 U.S. at
201 (emphasis added); see also Waldrip v. Hall, 548 F.3d
729, 734-35 (9th Cir. 2008). Chaffer is therefore not entitled
to statutory tolling.
II
[3] Chaffer also argues that equitable tolling can save his
federal habeas petition from untimeliness. A petitioner seek-
1
California has not provided any guidance as to what constitutes a
timely non-capital habeas petition. See King v. LaMarque, 464 F.3d 963,
966 (9th Cir. 2006). The Supreme Court has suggested that we “seek guid-
ance on the matter by certifying a question to the California Supreme
Court in an appropriate case.” Evans, 546 U.S. at 199. We did so, Chaffer
v. Prosper, 542 F.3d 662 (9th Cir. 2008), but the court denied certification,
Chaffer v. Prosper, No. S166400 (filed Mar. 11, 2009).
1214 CHAFFER v. PROSPER
ing equitable tolling bears the heavy burden of showing “(1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005).
A
[4] Chaffer alleges that his pro se status, a prison library
that was missing a handful of reporter volumes, and reliance
on helpers who were transferred or too busy to attend to his
petitions justified the delay; however, these circumstances are
hardly extraordinary given the vicissitudes of prison life, and
there is no indication in the record that they made it “impossi-
ble” for him to file on time. Ramirez v. Yates, 571 F.3d 993,
997 (9th Cir. 2009).
While denial of access to legal files may in some cases con-
stitute “the type of external impediment for which we [grant]
equitable tolling,” Waldron-Ramsey v. Pacholke, 556 F.3d
1008, 1013 (9th Cir. 2009), Chaffer’s allegations are insuffi-
cient. First, “he entrusted [his inmate law clerk] with his legal
documents at his peril.” United States v. Cicero, 214 F.3d
199, 205 (D.C. Cir. 2000). Second, although he alleges that he
lacked access to his files the entire time his inmate law clerk
was working on his petition, he “does not point to specific
instances where he needed a particular document . . . and
could not have procured that particular document when need-
ed.” Waldron-Ramsey, 556 F.3d at 1013-14. Even crediting
his assertion that he lacked access to his files for 46 days,
rather than the 4 days post-transfer as supported by the record,
tolling the entire period still makes his federal filing too late
because he needs all but six days tolled.
Chaffer’s mistaken reliance on Saffold v. Carey, 312 F.3d
1031 (9th Cir. 2003), as creating a bright-line rule for timeli-
ness of California habeas petitions is also unavailing. Harris
v. Carter, 515 F.3d 1051 (9th Cir. 2008), is distinguishable,
as there the petitioner relied on a correct reading of then-
CHAFFER v. PROSPER 1215
current case law, whereas here Chaffer relied on a misunder-
standing. Furthermore, Harris held that equitable tolling
applies “in the rare case where a petitioner relies on our
legally erroneous holding in determining when to file a fed-
eral habeas petition.” Id. at 1057 (emphasis added). Here
Chaffer relied on Saffold in determining when to file his state
habeas petitions.
[5] Because Chaffer cannot point to any extraordinary cir-
cumstances that prevented him from timely filing, he is not
entitled to equitable tolling.
B
[6] Chaffer has also failed to show that he has been dili-
gently pursuing his rights. He claims that he “did everything
in [his] power” to file his habeas petitions on time, yet, tell-
ingly, he does not controvert the prison librarian’s declaration
that, according to access logs and her own recollection, he
never ventured into the prison library between October 2004
and August 2006. Indeed, he fails to make any specific “alleg-
[ation] what [he] did to pursue [his] claims and complain
about [his] situation[ ].” Roy v. Lampert, 465 F.3d 964, 973
(9th Cir. 2006). While he asserts that he relied on “whatever
volunteer assistance [he] could find” to file in a “timely and
diligent manner,” the “fact that an inmate law clerk was
assisting in drafting the state petition does not relieve [him]
from the personal responsibility of complying with the law.”
Marsh v. Soares, 223 F.3d 1217,1220 (10th Cir. 2000). Con-
sequently, Chaffer has not made the requisite showing of dili-
gence to warrant equitable tolling.
III
For the foregoing reasons, the judgment of the district court
dismissing Chaffer’s habeas petition as untimely is
AFFIRMED.