David Fuschak v. Gary Swarthout

FILED
NOT FOR PUBLICATION DEC 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID MICHAEL FUSCHAK, No. 12-15262
Petitioner - Appellant, D.C. No. 3:11-cv-03790-SI
v.
MEMORANDUM*
GARY SWARTHOUT, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted November 17, 2014
San Francisco, California
Before: GOULD, WATFORD, and FRIEDLAND, Circuit Judges.
David Fuschak challenges the dismissal of his federal habeas petition as
untimely, arguing that he is entitled to both statutory and equitable tolling of the
one-year statute of limitations. We need not address all of the grounds Fuschak
asserts as a basis for tolling. To prevail on appeal, he must establish entitlement to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 3
either statutory or equitable tolling for the period between the denial of his state
trial court habeas petition and the filing of his habeas petition in the California
Court of Appeal. He has not established entitlement to either form of tolling.
1. To be entitled to statutory tolling, Fuschak must show that he filed his
Court of Appeal petition in a timely manner. See Stewart v. Cate, 757 F.3d 929,
935 (9th Cir. 2014). Following the denial of his state trial court petition, Fuschak
took 103 days to file his next petition in the Court of Appeal. Under California
law, delays of this length are unreasonable absent a showing of good cause. See id.at 935–36. Fuschak asserts that his lack of access to the prison law library and his
mental illness justify the 103-day delay. However, he did not adequately explain
to the state courts why he needed more than two hours of library access per week
to revise his trial court petition, or why his mental illness rendered the additional
delay reasonable. Absent such an explanation, we conclude that California courts
would deem Fuschak’s Court of Appeal petition untimely. See id. at 937. Because
the Court of Appeal petition was untimely, neither that petition nor his subsequent
California Supreme Court petition was “properly filed” within the meaning of 28
U.S.C. § 2244(d)(2). As a result, Fuschak is not entitled to statutory tolling for any
period after the denial of his state trial court petition.
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2. Fuschak argues that he is entitled to equitable tolling for the period
following denial of his state trial court petition because he relied on a handbook
from the prison law library that suggested the federal statute of limitations stopped
running during the entire state habeas process, whether or not his state petitions
were timely filed. Fuschak could not reasonably have relied on the handbook to
justify the 103-day delay in filing his California Court of Appeal petition. The
handbook in question clearly notes that “[p]ublished decisions” on what is required
for tolling in between denial in one state court and filing in a higher state court
“have gone both ways,” and states that petitioners should use “as few days as
possible in between” state post-conviction petitions.
3. Fuschak also asserts that he is entitled to equitable tolling for his mental
illness. However, Fuschak has not shown that his impairment was so severe that
he was unable to understand the need to timely file, or that his mental health issues
rendered him unable to prepare a habeas petition. See Bills v. Clark, 628 F.3d
1092, 1099–1100 (9th Cir. 2010).
Without either statutory or equitable tolling for the 103 days between the
denial of his state trial court petition and the filing of his petition in the California
Court of Appeal, Fuschak’s federal habeas petition is untimely.
AFFIRMED.