Kevin Davis v. Palmer , 584 F. App'x 802 ( 2014 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEPTEMBER 16
2014
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KEVIN SCOTT DAVIS, No. 13-15245
Petitioner - Appellant, D.C. No.
3:11-cv-00897-RCJ-WGC
v.
PALMER; NEVADA STATE GENERAL, MEMORANDUM*
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted September 10, 2014**
San Francisco, California
Before: SCHROEDER, OWENS, and FRIEDLAND, Circuit Judges.
Kevin Scott Davis appeals from a judgment by the District of Nevada dismissing
his federal habeas corpus petition as untimely under 28 U.S.C. § 2244(d). We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
agree with the district court that Davis has not demonstrated eligibility for equitable
tolling, so we affirm.1
We review de novo the district court’s decision to dismiss a § 2254 habeas
petition as untimely. Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012). We
review the district court’s decision not to order an evidentiary hearing for abuse of
discretion. Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006).
Davis argues that he is entitled to at least 100 days of equitable tolling2 based on
a combination of attorney negligence, lack of library access, and the state court’s
delay in resolving his motion to withdraw the guilty plea.3 None of these grounds
1
This court “may take notice of proceedings in other courts, both within and
without the federal judicial system, if those proceedings have a direct relation to
matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v.
Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992); see also Fed. R. Evid. 201. We
therefore grant Davis’s motion to take judicial notice of certain state court pleadings,
which were not included in Davis’s pro se pleadings before the district court.
2
Davis alternately requests statutory tolling pursuant to 28 U.S.C. § 2244(d)(1)(B)
based on a state-created impediment for these same grounds. Because we address
the possibility of an impediment as part of the equitable tolling argument, we will
not duplicate this analysis to address impediments for statutory tolling.
3
Davis additionally argues that he should have been allowed to appear for oral
argument in his plea withdrawal motion, that he should have been appointed counsel
for his plea withdrawal motion, and that the state court should not have dismissed his
motion to withdraw the guilty plea. None of these arguments bear on the timeliness
of his federal habeas petition.
2
qualify for equitable tolling because none prevented Davis from timely filing his
federal habeas petition.
A federal habeas petitioner is entitled to equitable tolling of AEDPA’s 1-year
statute of limitations “only if he shows ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’ and
prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Davis’s allegation of attorney misconduct based on his attorney’s failure to file a
direct appeal in state court is not an extraordinary circumstance because his attorney
did not commit egregious misconduct, nor did Davis show that it prevented him
from timely filing his federal habeas petition. See Spitsyn v. Moore, 345 F.3d 796,
800 (9th Cir. 2003); Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2009).
Davis’s allegations of limited library access fail because “[o]rdinary prison
limitations on [a prisoner’s] access to the law library” are “neither ‘extraordinary’
nor [make] it ‘impossible’ for him to file his petition in a timely manner.” Ramirez
v. Yates, 571 F.3d 993, 998 (9th Cir. 2009). Davis has not pointed to any specific
information that he needed but could not access.
Davis also has not shown that the state court’s delay in adjudicating his motion to
withdraw the guilty plea caused his untimely federal petition. The state’s delay
3
during the motion to withdraw the guilty plea did not cause Davis’s state habeas
petition to be untimely because Davis was not required to bring the motion to
withdraw the guilty plea prior to filing his state habeas petition. See Hart v. State, 1
P.3d 969, 971-72 (Nev. 2000) (holding that post-conviction challenges to a guilty
plea could be brought as a motion to withdraw guilty plea or as a habeas petition),
overruled by Harris v. State, 329 P.3d 619 (Nev. 2014). The delay also did not
cause Davis’s federal petition to be untimely because he did not need to wait for the
Nevada Supreme Court to resolve his state habeas petition before filing his federal
habeas petition and either asking for a stay or omitting any claims not previously
raised in his motion to withdraw the guilty plea. See Rhines v. Weber, 544 U.S.
269, 275-77 (2005) (holding that district courts have discretion to stay federal
habeas petitions pending exhaustion of claims in state court where there was good
cause for the failure to exhaust previously); O’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999) (“[S]tate prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process.”).
Finally, Davis acknowledges that he waited until after the statute of limitations
had run to file his federal habeas petition because he was waiting for remittitur on an
appeal of a non-appealable order of the state district court, and he does not argue that
this mistake was an extraordinary circumstance or was caused by an extraordinary
4
circumstance. See Johnson v. United States, 544 U.S. 295, 311 (2005) (“[W]e have
never accepted pro se representation alone or procedural ignorance as an excuse for
prolonged inattention when a statute’s clear policy calls for promptness . . . .”).4
Because Davis does not qualify for equitable tolling, his petition would be
untimely regardless of the resolution of the other issues raised on appeal. We
therefore decline to reach those issues.
For the foregoing reasons, we AFFIRM.
4
Davis has not alleged facts that would entitle him to equitable tolling, so it was not
an abuse of discretion for the district court to decline to order an evidentiary hearing.
See Roy, 465 F.3d at 969 (holding that a habeas petitioner is entitled to an
evidentiary hearing when the petitioner “makes a good-faith allegation that would, if
true, entitle him to equitable tolling” (emphasis, citation, and internal quotation
marks omitted)).
5