Willie Grant v. Gary Swarthout

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIE ULYSESS GRANT, No. 13-55584
Petitioner-Appellant,
D.C. No.
v. 3:11-cv-03015-
JAH-JMA
GARY SWARTHOUT, Warden;
XAVIER BECERRA, Attorney General,
Respondents-Appellees. OPINION
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted December 6, 2016
Pasadena, California
Filed July 7, 2017
Before: Stephen Reinhardt, A. Wallace Tashima,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Reinhardt
2 GRANT V. SWARTHOUT
SUMMARY*
Habeas Corpus
The panel reversed the district court’s order dismissing as
untimely California state prisoner Willie Ulysses Grant’s
federal habeas corpus petition, and remanded for further
proceedings, in a case involving a prisoner’s right to equitable
tolling for the period during which he was prevented from
completing his federal habeas petition by an extraordinary
circumstance.
The panel held that a petitioner is entitled to use the full
one-year statute-of-limitations period for the filing of his state
and federal habeas petitions and that he need not anticipate
the occurrence of circumstances that would otherwise deprive
him of the full 365 days that Congress afforded him for the
preparation and filing of his petitions. The panel therefore
held that it was improper for the district court to fault the
petitioner for filing his state petition for postconviction relief
late in the statute-of-limitations period in reliance on his
having a full year to file both his state and federal petitions,
as promised by AEDPA.
The panel held that Grant exercised reasonable diligence
during the 20-odd day duration of an extraordinary
circumstance, where he requested from the prison trust office,
on the day he received notice of the California Supreme
Court’s denial of his state postconviction petition, the prison
account certificate required to file a federal habeas petition in
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GRANT V. SWARTHOUT 3
forma pauperis and filed a second request when he did not
hear back from prison officials for two weeks. Because it is
obvious that Grant was diligent after he received the prison
account certificate, the panel did not resolve whether a
petitioner needs to prove that he was diligent after the
extraordinary circumstance has ended.
The panel disagreed with the state that Grant did not
experience an extraordinary circumstance sufficient to justify
tolling. The panel wrote that where a prisoner is dependent
on prison officials to complete a task necessary to file a
federal habeas petition and the staff fails to do so promptly,
this constitutes an extraordinary circumstance.
The panel concluded that Grant is entitled to equitable
tolling from the time he requested the prison account
certificate until he received the certificate, and that his
petition was therefore timely.
COUNSEL
Tony Faryar Farmani (argued), Farmani APLC, San Diego,
California, for Petitioner-Appellant.
Kevin Vienna (argued) and Mathew Mulford, Deputy
Attorneys General; Julie L. Garland, Senior Assistant
Attorney General; Office of the Attorney General, San Diego,
California; for Respondents-Appellees.
4 GRANT V. SWARTHOUT
OPINION
REINHARDT, Circuit Judge:
This case involves a prisoner’s right to equitable tolling
for the period during which he was prevented from
completing his federal petition for habeas corpus by an
“extraordinary circumstance.” If equitable tolling applies, his
habeas petition is timely. If it doesn’t, he will likely spend
the rest of his life in prison.
FACTS
Willie Ulysess Grant was found guilty of committing
first-degree murder, including an enhancement for personally
using a firearm in the commission of the crime, on December
14, 2006. He was sentenced to two consecutive terms of
twenty-five years to life. The California Court of Appeal
affirmed his sentence on September 16, 2008. The California
Supreme Court denied his petition for review on December
10, 2008. Grant timely filed a petition for certiorari, which
was denied by the U.S. Supreme Court on October 5, 2009.
On that date, the one-year statute of limitations for filing a
federal habeas petition under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) began to run.
28 U.S.C. § 2244(d)(1). Grant was also required to file any
petition for state collateral review within that one-year period,
but the running of the period was statutorily tolled while the
state courts were actively processing his petitions.
On September 25, 2010, 354 days after his petition for
certiorari was denied, Grant constructively filed a pro se
petition for state postconviction relief with the San Diego
County Superior Court. This filing commenced the statutory
GRANT V. SWARTHOUT 5
tolling of the AEDPA statute of limitations. Id. § 2244(d)(2).
Grant’s state postconviction relief efforts continued until
November 16, 2011, when the California Supreme Court
denied his state habeas petition. This decision ended the
period of statutory tolling.1
Grant received notice that his state petition had been
denied five days later, on November 21, 2011. At that time,
there were seven days remaining in Grant’s one-year filing
period under AEDPA.2 Grant then “immediately requested
a ‘prison account certificate’ from the prison trust office,” on
November 21. This certificate was required in order to file a
federal habeas petition in forma pauperis. See Rules
Governing Section 2254 Cases in the United States District
Courts, R. 3(a)(2) (requiring a motion, affidavit, and
“certificate from the warden or other appropriate officer of
the place of confinement showing the amount of money” in
the petitioner’s prison account in order to proceed in forma
pauperis). The certificate was issued to Grant’s correction
counselor on December 2, 2011. According to Grant, this
delay “was because of the Thanksgiving holiday weekend.”
Grant finally received the certificate from his counselor on
1
Neither party disputes that the entire period from September 25,
2010 to November 16, 2011 was tolled by statute.
2
Because November 27, 2011 fell on a Sunday, Grant’s petition was
actually due the next day, November 28, 2011. See Fed. R. Civ. P.
6(a)(1)(C) (“[I]f the last day [of a filing deadline] is a Saturday, Sunday,
or legal holiday, the period continues to run until the end of the next day
that is not a Saturday, Sunday, or legal holiday.”). Grant therefore had
seven days remaining although this gave him a 366-day period in which
to file.
6 GRANT V. SWARTHOUT
December 19.3 Grant constructively filed his federal pro se
petition for a writ of habeas corpus on that same day. Along
with his petition, he filed the required declaration and prison
certificate to proceed in forma pauperis. The state moved to
dismiss the petition, arguing that it was untimely under
AEDPA’s one-year statute of limitations. Grant contends that
the period of time between November 21, when he requested
the prison account certificate, and December 19, the date on
which he received it, was equitably tolled. If he is correct, his
federal habeas petition was timely filed.
The district court adopted the report and recommendation
of the magistrate judge, which recommended that the petition
be dismissed as untimely. It held that Grant was not entitled
to equitable tolling because he had not shown that he was
diligent throughout the entire 354 days prior to his filing of
his state petition for postconviction relief and that such a
showing was necessary to warrant equitable tolling.4
3
The date on which Grant received the certificate was disputed
below, with Grant asserting that he received it on December 19 and the
state arguing that he received it on December 2. However, the state did
not argue in its briefs on appeal that Grant received his prison account
certificate on December 2, and it represented at oral argument that it was
not disputing that Grant received the prison account certificate on
December 19. Therefore, we accept as true Grant’s assertion that he
received the prison account certificate on December 19.
4
Grant argued both before the district court and before this court that
he was entitled to additional equitable tolling during some other portions
of either the period before he filed his state petition for postconviction
relief or the period after his state petition was denied. The district court
made determinations specific to each of Grant’s other arguments in
concluding that he was not entitled to equitable tolling. Because we
conclude that Grant is entitled to equitable tolling for the period during
which he waited to receive his prison account certificate from prison
GRANT V. SWARTHOUT 7
DISCUSSION
Under AEDPA, state prisoners have a one-year statutory
period to file a federal application for writ of habeas corpus.
28 U.S.C. § 2244(d)(1). This period is in effect a statute of
limitations that commences on the latest of four dates
designated by statute:
(A) the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such
review;
(B) the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
diligence.
officials, and his federal habeas petition was therefore timely, we do not
reach any of these additional claims.
8 GRANT V. SWARTHOUT
Id. Here, the applicable period commenced as provided in
paragraph (A). The statutory period is tolled (“statutory
tolling”) while the prisoner pursues state postconviction
relief. Specifically, the one-year statute of limitations is
statutorily tolled from the time a state collateral challenge is
filed until the state postconviction proceedings are final. See
Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006). The
statute of limitations is not tolled, however, “from the time a
final decision is issued on direct state appeal [to] the time the
first state collateral challenge is filed.” Id. (alteration in
original) (citation omitted).
It is well established that a prisoner who files his federal
petition for writ of habeas corpus after AEDPA’s one-year
statute of limitations has expired may be entitled to equitable
tolling. Florida v. Holland, 560 U.S. 631, 649 (2010). If a
prisoner can demonstrate that he is entitled to equitable
tolling for a certain period of time, that period will be
subtracted from the total number of days that have passed. If,
after those days are subtracted, less than 365 days have
passed, the prisoner’s petition for habeas corpus will be
accepted as timely. The grounds for equitable tolling “are
highly fact-dependent.” Sossa v. Diaz, 729 F.3d 1225, 1237
(9th Cir. 2013) (citation omitted). They do require, however,
the occurrence of what we label an “extraordinary
circumstance.” Miles v. Prunty, 187 F.3d 1104, (9th Cir.
1999) (“We will permit equitable tolling of AEDPA’s
limitations period ‘only if extraordinary circumstances
beyond a prisoner’s control make it impossible to file a
petition on time.’” (quoting Calderon v. U.S. Dist. Court,
163 F.3d 530, 541 (9th Cir. 1998))). We have said, however,
that we do not require actual impossibility; rather, equitable
tolling is appropriate where “it would have technically been
possible for a prisoner to file a petition, but a prisoner would
GRANT V. SWARTHOUT 9
have likely been unable to do so.” Gibbs v. Legrand,
767 F.3d 879, 888 (9th Cir. 2014) (quoting Harris v. Carter,
515 F.3d 1051, 1054 n.5 (9th Cir. 2008)). “At bottom, the
purpose of equitable tolling is to ‘soften the harsh impact of
technical rules which might otherwise prevent a good faith
litigant from having [her] day in court.’” Rudin v. Myles,
781 F.3d 1043, 1055 (9th Cir. 2014) (alteration in original)
(citation omitted).
I.
A.
The specific question in this case is whether, when a
petitioner would otherwise be able to file a timely petition for
federal habeas corpus but an extraordinary circumstance
occurs that prevents timely filing, the court may deny
equitable tolling solely because it believes that by scheduling
his work differently prior to the unanticipated occurrence, the
petitioner would have been able to file his federal petition
earlier, specifically within in the one-year statute-of-
limitations period. Put differently, the question is whether
equitable tolling may be denied because a court decides that
the prisoner acted unreasonably by failing to work diligently
on his case throughout the entire portion of the one-year
statute-of-limitations period that preceded the occurrence of
the “extraordinary circumstance”?
The seminal case on this issue is Valverde v. Stinson,
224 F.3d 129 (2d Cir. 2000). In that case, the Second Circuit
held that a federal habeas petitioner was “not ineligible for
equitable tolling simply because he waited until late in the
limitations period to file his habeas petition.” Id. at 136. The
court explained that a petitioner “would have acted
10 GRANT V. SWARTHOUT
reasonably by filing his petition any time during the
applicable one-year period of limitations.” Id. (emphasis
added). It then reasoned that a petitioner “should not be
faulted . . . for failing to file early or to take other
extraordinary precautions early in the limitations period
against what are, by definition, rare and exceptional
circumstances that occur later in that period.” Id.; see also
United States v. Gabaldon, 522 F.3d 1121, 1126 (10th Cir.
2008) (“[To hold] that [a habeas petitioner] could and should
have filed . . . before his documents were seized would not
only arbitrarily shorten his limitations period, but also would
unduly penalize him for making the effort to research his
claims thoroughly and set forth his arguments in as
compelling a manner as possible.”). We agree with the
Second Circuit that a petitioner is entitled to use the full one-
year statute-of-limitations period for the filing of his state and
federal habeas petitions and that he need not anticipate the
occurrence of circumstances that would otherwise deprive
him of the full 365 days that Congress afforded him for the
preparation and filing of his petitions. We therefore hold that
it was improper for the district court to fault the petitioner for
filing his state petition for postconviction relief late in the
statute-of-limitations period in reliance on his having a full
year to file both his state and federal petitions, as promised by
AEDPA.
Our conclusion follows from the commonsense
proposition that when Congress enacts a statute of limitations
for filings (as it did in AEDPA), it has deemed that period as
a reasonable period of time in which to complete the requisite
filings, and it is therefore inherently reasonable for a
petitioner to rely on that statute of limitations and to plan on
filing at any point within that period. As a result, courts may
not retroactively assess a petitioner’s actions in order to judge
GRANT V. SWARTHOUT 11
what a petitioner could have done during the running of the
statutory period prior to the occurrence of an unexpected
external impediment which tolls the running of the statute.
See, e.g., Socop-Gonzalez v. INS, 272 F.3d 1176, 1196 (9th
Cir. 2001) (en banc) (“[A] court arguably usurps
congressional authority when it tolls and then rewrites the
statute of limitations by substituting its own view of how
much time a plaintiff reasonably needed to file suit.”).
The Supreme Court recently considered a related issue
involving the relationship between a statute of limitations and
equitable relief in SCA Hygiene Products Aktiebolag v. First
Quality Baby Products, LLC, 137 S. Ct. 954 (2017). In that
case, it held that the equitable defense of laches was
unavailable where a copyright plaintiff filed its claim within
the statutorily prescribed statute of limitations. The Court
reasoned that when Congress has determined that a patent
owner is entitled to three years in which to file a claim,
allowing courts to shorten that period by deeming a plaintiff
as having waited too long to file a claim “would give judges
a ‘legislation-overriding’ role that is beyond the Judiciary’s
power.” Id. at 960. The Court explicitly held that judges
could not override the statute of limitations period even where
there were concerns that a plaintiff might try to “game” the
system, such as by “wait[ing] until an infringing product has
become successful before suing for infringement.” Id. at 961
n.4 (“The dissent’s argument implies that, insofar as the lack
of a laches defense could produce policy outcomes judges
deem undesirable, there is a ‘gap’ for laches to fill,
notwithstanding the presence of a statute of limitations. That
is precisely the kind of ‘legislation-overriding’ judicial role
that Petrella rightly disclaimed.”). In addition, the Court
recognized that “[i]f the plaintiff has done only what she is
permitted to do by statute, . . . the basis for barring the
12 GRANT V. SWARTHOUT
plaintiff seems to have disappeared.” Id. at 961 (quoting
1 Dan Dobbs, Law of Remedies § 2.4(4), at 108 (2d ed.
1993)).
This rationale applies with equal force in the present case.
Congress has determined that state prisoners are entitled to
one full year from the date on which their conviction becomes
final5 before their federal petition for habeas corpus must be
filed, and the Supreme Court has rightly held that equitable
tolling is an available remedy to ensure that prisoners are
afforded their full statutory entitlement. Equitable tolling
may not be applied in a manner that would serve to deprive
prisoners of their right to use the entire statutory period in the
way they deem fit. One year is not an overly long period in
which to file both a state petition for postconviction relief and
a federal habeas petition. From the myriad orders dismissing
such petitions as untimely, one might even conclude that the
period is too short to allow many prisoners, especially the
vast majority who are acting pro se, to investigate, research,
and fully prepare such complex and lengthy legal documents.
To use equitable principles to in effect shorten the already-
short statutory period available to all prisoners by requiring
them to anticipate extraordinary circumstances and to
perform the necessary legal work in a shorter period of time
than the statute requires would deprive them of the
availability of the full statute-of-limitations period and would
compel them to meet the additional judge-made requirement
5
This can occur either through completion of direct review or the
expiration of time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).
The statute of limitations may begin to run from several other dates, see
id. § 2244(d)(1)(B)–(D), but the most common date on which the statute
of limitations begins running is the date on which the judgment becomes
final.
GRANT V. SWARTHOUT 13
of performing their legal research and writing on a schedule
deemed appropriate in hindsight by a judge.
In holding that AEDPA’s statute of limitations period is
subject to equitable tolling, the Supreme Court recognized
that habeas corpus has always been governed by equitable
principles. See Holland, 560 U.S. at 647 (“AEDPA’s subject
matter, habeas corpus, pertains to an area of the law where
equity finds a comfortable home.”); see also id. at 649
(“When Congress codified new rules governing this
previously judicially managed area of law, it did so without
losing sight of the fact that the ‘writ of habeas corpus plays a
vital role in protecting constitutional rights.’”). The Court
also recognized that “AEDPA’s limitations period is not
particularly long,” and equitable tolling would therefore be
necessary for prisoners who experienced unforseen obstacles.
See id. at 647.
As we have reiterated on numerous occasions, the
purpose of equitable tolling is to “prevent the unjust technical
forfeiture of causes of action.” Jones v. Blanas, 393 F.3d
918, 928 (9th Cir. 2004) (quoting Lantzy v. Centex Homes,
73 P.3d 517, 523 (Cal. 2003)). That is, equitable tolling
entitles a prisoner who experiences an unexpected hardship
to additional time when he would otherwise be denied his day
in court. In applying these equitable considerations, we must
bear in mind that prisoners are generally pro se and are not
only without the resources to hire counsel but also most often
without the knowledge or ability to prepare timely and
adequate habeas petitions by themselves. Allowing courts to
forfeit a petitioner’s right to equitable tolling because in the
court’s judgment the prisoner could have filed earlier in the
statute-of-limitations period had he scheduled his legal work
14 GRANT V. SWARTHOUT
differently would undermine the equitable principles that
underlie the use of equitable tolling in habeas cases.
The added judicial condition imposes an additional
requirement on the right to use a full 365 days and does so in
the name of equity, although equitable relief – here, equitable
tolling – is designed to achieve the precisely opposite
purpose: to ensure that the prisoner will truly have his full
statutory period available for the performance of his work.
No opinion of this court or of the Supreme Court has ever
upheld the denial of equitable tolling to a prisoner on the
ground that he had not used the portion of the one-year
statute-of-limitations period that preceded the event justifying
tolling in a reasonable manner. Quite the contrary, we have
on several occasions granted equitable tolling to petitioners
where the triggering event occurred with only days remaining
in the one-year filing period. See, e.g., Miles, 187 F.3d at
1107 (petitioner was entitled to equitable tolling although he
requested a check and submitted his federal petition with only
five days remaining in AEDPA’s one-year statute of
limitations); Stillman v. LaMarque, 319 F.3d 1199, 1202–03
(9th Cir. 2003) (petitioner was entitled to equitable tolling
when his lawyer submitted his federal petition to officials to
have petitioner sign with only one day left in the AEDPA
filing period); see also Dickershaid v. Martel, 648 F. App’x
618, 621 (9th Cir. 2016) (petitioner was entitled to equitable
tolling when prison officials confiscated his legal materials
with only two days remaining in one-year statute-of-
limitations period). In none of these cases did we examine
what steps the petitioner took toward preparing his petition in
the portion of the statute-of-limitations period that transpired
before the extraordinary circumstance triggered equitable
tolling. Nor did we even suggest in any of those cases that
GRANT V. SWARTHOUT 15
failing to have worked on, or failing to work sufficiently
diligently on, habeas petitions during a portion of the pre-
extraordinary circumstances period might prevent the
petitioner from receiving equitable relief.
B.
On appeal, the state relies principally on two separate
arguments. First, it restates the district court’s analysis that
a petitioner must show that he was diligent not only during
the existence of an extraordinary circumstance, but also
before the extraordinary circumstance occurred.6 Second, the
state argues that prison officials’ delay in providing the
petitioner with his prison account certificate was not an
extraordinary circumstance.
In support of its first argument, the state asserts that Pace
v. DiGuglielmo, 544 U.S. 408 (2005), held that courts may
penalize a habeas petitioner for filing his state collateral
petition toward the end of the statute-of-limitations period if
the court believes that the prisoner could have filed this
petition earlier had he worked harder. However, Pace was a
case in which the Court denied equitable tolling based on the
petitioner’s failure to pursue state postcollateral relief for four
years after his direct appeal was concluded. Id. at 419 (“Yet
petitioner waited [over four] years, without any valid
justification, to assert these claims in his November 27, 1996,
[state] petition.”).
6
We have no quarrel with the first half of the state’s thesis, and we
conclude here that the petitioner exercised reasonable diligence during the
duration of the extraordinary circumstance in this case. See infra pages
18–20.
16 GRANT V. SWARTHOUT
Pace was the product of a problem common before the
passage of AEDPA. Certain states did not have time
requirements governing the filing of petitions for
postconviction relief, and thus did not ensure that such relief
was pursued within a reasonable period of time. As a result,
prior to AEDPA prisoners could sometimes wait years before
filing an initial state petition, and federal habeas petitions
could be delayed accordingly. See, e.g., Pace, 544 U.S. at
410–11 (recognizing that Pennsylvania law “was amended in
1995 to include, for the first time, a statute of limitations for
state postconviction petitions”); Carey v. Saffold, 536 U.S.
214, 221 (2002) (“California’s collateral review system
differs from that of other States in that it . . . . determines the
timeliness of each filing according to a ‘reasonableness’
standard.”). In California, where each state postcollateral
petition is filed separately in each level of the state courts,
this delay would be compounded as prisoners could wait
years before proceeding to the next step of their collateral
appeal. See Carey, 536 U.S. at 221. Prisoners could
ultimately challenge their convictions in federal court
upwards of a decade after they were originally convicted.
See, e.g., Pace, 544 U.S. at 410–11 (thirteen years passed
between petitioner’s guilty plea in 1986 and the filing of his
federal petition in 1999). Under such circumstances, courts
found it necessary to inquire whether petitioners had sat on
their claims for years before seeking relief and then asserted
that they were further entitled to equitable tolling. The
problem identified in Pace has been almost entirely solved by
the passage of AEDPA and its establishment of a one-year
statute of limitations in which to both exhaust state remedies
and file a federal petition for habeas corpus.7 Because the
7
During this period, statutory tolling is applicable while state
remedies are pursued in the state courts.
GRANT V. SWARTHOUT 17
AEDPA statute of limitations runs from the date that a
prisoner’s conviction becomes final, in order to be eligible to
file a federal petition for habeas corpus, petitioners must file
their state petitions for postcollateral relief within a year
regardless of whether the state has specifically set a statute of
limitations for state postcollateral petitions.
Although we have never denied a prisoner relief for
failing to act diligently during the portion of the statute-of-
limitations period that preceded the occurrence of a triggering
event, there has been some suggestion in two of our cases that
diligence prior to an extraordinary circumstance may be a
“relevant” factor. See Gibbs, 767 F.3d at 892. First, as
explained above, examination of diligence prior to an
unexpected circumstance was important only before AEDPA
and only in cases in which petitioners waited an unreasonable
period of time before pursuing postconviction relief. Second,
neither of these cases stands for the proposition that a
petitioner lacks the requisite diligence because he failed to act
expeditiously during the portion of the one-year statute-of-
limitations period that preceded the occurrence of the
extraordinary circumstance.8
8
In Roy v. Lampert, we noted among other observations that the
habeas petitioners to whom we granted equitable tolling had “pursued
their claims within a reasonable period of time before the external
impediment.” 465 F.3d at 972. Roy concerned the petitions of two
prisoners: one prisoner had one week between his conviction becoming
final and the occurrence of the external impediment, and the other
prisoner’s conviction became final after the extraordinary circumstance
had begun. Id. Thus, although Roy referred to time within the statutory
period, it did not comment upon whether such a period could ever have
been unreasonable and if so under what circumstances. Roy may well
have been referring to the pre-AEDPA problem of failing to exhaust the
state collateral remedies in a reasonable period of time and noting that no
such problem existed in that case. This is supported by the fact that the
18 GRANT V. SWARTHOUT
II.
A.
The state is correct, of course, that there is a requirement
that a petitioner establish reasonable diligence in equitable
tolling cases. This requirement is primarily concerned,
however, with whether the petitioner was “diligent in his
efforts to pursue his appeal at the time his efforts were being
thwarted.” Gibbs, 767 F.3d at 893 (quoting Roy, 465 F.3d at
970–71). This too makes sense. We do not wish petitioners
to take undue advantage of equitable tolling by using the time
during which the extraordinary circumstance exists to stretch
out unreasonably the period before their petition is due.
Rather, during the period of equitable tolling, we expect the
only cases cited in Roy as examples of waiting an unreasonable period of
time were pre-AEDPA cases in which petitioners had waited well over
one year to file their state petitions. See id. Most important, of course,
Roy found no bar to equitable relief and indeed granted it to the
petitioners.
In Gibbs, when summarizing the law, we merely commented that it
is “[a]lso relevant” to the equitable tolling inquiry “whether petitioners
‘pursued their claims within a reasonable period of time before the
external impediment . . . came into existence.’” 767 F.3d at 892
(alteration in original) (quoting Roy, 465 F.3d at 972). Gibbs did not
suggest or comment on whether a period of time could be unreasonable if
it fell within the statute of limitations. Rather, the court merely
commented that Gibbs had been diligent during the entire ten-year period
between the petitioner’s conviction and the ultimate filing of his habeas
petition. Id. Because Gibbs had affirmatively demonstrated diligence for
the entire period, the court had no need to consider how much time had
elapsed before the extraordinary circumstance occurred or whether such
an inquiry was even relevant in such a post-AEDPA case. In any event,
in Gibbs as in Roy, the full equitable relief the petitioner sought was
granted.
GRANT V. SWARTHOUT 19
petitioner to attempt to resolve the impediment preventing
timely filing so that the courts can consider his petition as
soon as possible. Undoubtedly, Grant exercised reasonable
diligence during the twenty-odd-day duration of the
extraordinary circumstance. He requested his prison account
certificate on November 21, 2011 on the very same day on
which he had received notice of the California Supreme
Court’s denial of his state petition for postconviction relief.
At that point, he had seven days remaining under AEDPA’s
one-year statute of limitations. When he did not hear back
from prison officials for two weeks regarding his prison
account certificate, he filed a second request.
Although it would probably have been possible for Grant
to contact his counselor more often regarding his prison
account certificate during the twenty odd days, two attempts
were adequate under the circumstances. See, e.g., Fue v.
Biter, 842 F.3d 650, 655 (9th Cir. 2016) (en banc) (holding
that petitioner would be sufficiently diligent where he
contacted the California Supreme Court only once in fourteen
months regarding the status of his state petition); Gibbs,
767 F.3d at 890 (holding that a prisoner was “adequately
diligent” when he wrote to his attorney three times over the
course of seven months to find out if the state supreme court
had ruled on his state petition); Miles, 187 F.3d at 1105, 1107
(holding that a prisoner was diligent where he waited over six
weeks to re-submit a petition which prison officials never
sent to the court). See generally Rudin, 781 F.3d at 1055
(“The diligence required for equitable tolling purposes is
‘reasonable diligence,’ not ‘maximum feasible diligence.’”
(quoting Holland, 560 U.S. at 653)). As we have recognized,
determining whether an inmate was diligent is inherently “a
fact-specific inquiry,” Fue, 842 F.3d at 654, and we do not
believe that waiting two weeks before contacting prison
20 GRANT V. SWARTHOUT
officials a second time while awaiting the completion of an
administrative task in a prison of approximately 4,000
inmates was unreasonable.
In such circumstances, it is appropriate for a prisoner to
rely on his counselor to give him his prison account
certificate as soon as it becomes available rather than to
check in continuously with the counselor to see if the
certificate has become available; the latter course would
burden both the inmate and the counselor. Cf. Fue, 842 F.3d
at 655–56 (“We also doubt that the California Supreme Court
would welcome the flood of status-update requests that would
likely follow were we to require all habeas petitioners to
engage in a ‘steady stream of correspondence’ with the court
to show their diligence.”). As this court recently reiterated,
“We do not require petitioners to engage in such ‘overzealous
or extreme’ conduct to show their diligence.” Id. at 655
(quoting Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011)).
B.
Although there is considerable confusion in our case law
regarding whether a petitioner may need to prove that he was
diligent after an extraordinary circumstance has ended,9 we
9
This court adopted a stop-clock approach, under which diligence is
required only during the existence of an extraordinary circumstance, when
considering equitable tolling in immigration cases in Socop-Gonzalez v.
INS, an immigration case. 272 F.3d at 1194–96. The en banc court
reasoned that requiring diligence after filing would “do[] away with the
major advantages of statutes of limitations: the relative certainty and
uniformity with which a statutory period may be calculated and applied,”
as well as displace “Congress’ intended policy . . . to permit plaintiffs to
take a specified amount of time (even if they don’t ‘need it’)” in
investigating and preparing their claims. Id. at 1195–96 (citation omitted).
GRANT V. SWARTHOUT 21
We recognized that the stop-clock rule similarly applies to equitable
tolling for petitions for writs of habeas corpus in Gibbs, 767 F.3d at 892.
Although some language exists in our cases suggesting that, contrary
to the stop-clock approach, diligence may be required for the remainder
of the filing period, it bears emphasizing that we have never denied relief
to a petitioner because he did not exercise diligence after the relevant
extraordinary circumstance had ended. The closest case, Spitsyn v.
Moore, 345 F.3d 796 (9th Cir. 2003), merely remanded to the district court
to determine whether the petitioner had exercised reasonable diligence
during any period of time that would then be equitably tolled because the
issue before the court on appeal related only to whether an extraordinary
circumstance had occurred. We find the analysis of one of our colleagues
in a recent memorandum disposition persuasive in its assessment of this
case: “Spitsyn only addresses the diligence prong of equitable tolling in
dicta. . . . While the Court simply noted in its concluding paragraph that
‘the record [did] not indicate why Spitsyn did not file his petition until
September, when [his counsel] returned his files in April,’ the Court did
not indicate that Spitsyn’s lack of diligence during this time period would
necessarily preclude his entitlement to equitable tolling.” Bobadilla v.
Gipson, No. 14-56461, 2017 WL 908550, at *2 n.1 (9th Cir. Mar. 8, 2017)
(Murguia, J., dissenting) (alterations in original) (citations omitted).
Recent cases have not altered our conclusion. In Luna v. Kernan, 784
F.3d 640, 651 (9th Cir. 2015), we suggested that Spitsyn had established
a diligence-through-filing requirement. This suggestion, however, was
mere dicta: at issue in Luna was only whether the petitioner had exercised
diligence during the existence of an extraordinary circumstance –
specifically, the grossly deficient performance of his attorney. See id. at
649–50. The court was not presented with an instance in which it needed
to consider a post-extraordinary circumstances period. Similarly, in Fue,
we asserted that “[o]rdinarily, a petitioner must act with reasonable
diligence” both during and after an extraordinary circumstance, citing only
a decision of the Sixth Circuit in support of this proposition. See 842 F.3d
at 655. Fue was chiefly a case about what level of diligence was required
for a prisoner waiting to receive delayed notice about the outcome of his
state petition for postconviction relief (in other words, during the existence
of an extraordinary circumstance). See id. at 654–56. The en banc court
explicitly concluded that no post-extraordinary circumstance period
22 GRANT V. SWARTHOUT
need not resolve that question in this case because it is
obvious that Grant was diligent after the extraordinary
circumstance had ended: he received his prison account
certificate on December 19 and constructively filed his
petition the same day. Thus, while we note that the stop-
clock approach to equitable tolling is consistent with a court’s
obligation to give effect to Congress’s intent to provide
prisoners with a full 365 days to file their state and federal
petitions, we also recognize that we have not clearly resolved
the question whether diligence is required after an
extraordinary circumstance has ended. Although we would
be inclined to hold that diligence is not required after the
termination of an extraordinary circumstance because
petitioners are entitled to use all 365 days afforded them by
Congress, since the issue is not before us, we leave its
determination for another day.
III.
The state’s second argument is that Grant did not
experience an extraordinary circumstance sufficient to justify
equitable tolling. We disagree. Grant was entirely dependent
on prison officials to provide him with the requested
document and could not file his petition for habeas corpus
without it. See Rules Governing Section 2254 Cases in the
United States District Courts, R. 3(a) (“An original and two
existed because the petitioner had never received sufficient notice that his
state petition for postconviction relief had been denied. Id. at 656. It
thereafter suggested that even if Fue had received notice of the denial of
his state petition, he had also diligently prepared and filed his federal
petition after that notice. See id. In no way does this discussion establish
a new rule that diligence is required after an extraordinary circumstance
has ended; nor could it possibly have applied that rule in the case before
it.
GRANT V. SWARTHOUT 23
copies of the petition must be filed with the clerk and must be
accompanied by (1) the applicable filing fee, or (2) a motion
for leave to proceed in forma pauperis, the affidavit required
by 28 U.S.C. § 1915, and a certificate from the warden or
other appropriate officer of the place of confinement showing
the amount of money or securities that the petitioner has in
any account in the institution.” (emphasis added)).10 Where
a prisoner is dependent on prison officials to complete a task
necessary to file a federal habeas petition and the staff fails to
do so promptly, this constitutes an extraordinary
circumstance. Miles v. Prunty is dispositive of this issue.
187 F.3d at 1107 (“Here, as an incarcerated pro se litigant,
Miles depended on prison authorities to draw on his trust
account and to prepare a check for the filing fee. He further
relied on these same authorities to mail his check and petition
to the district court. Once Miles made his request, any delay
on the part of prison officials in complying with Miles’
instructions was not within Miles’ control.” (emphasis
added)); see also Stillman, 319 F.3d at 1202–03 (holding that
extraordinary circumstances outside of the petitioner’s
10
The state asserts that Grant could have filed his habeas petition
without the account certificate because “district courts regularly impose
a conditional dismissal, which results in a dismissal without prejudice and
with leave to amend.” The state does not explain how a pro se prisoner
would be expected to know that this was the “actual practice” of district
courts. Moreover, this assertion misconstrues circuit precedent: the
habeas petitioner need not prove that no prisoner could ever successfully
file a timely petition under the extraordinary circumstances, only that it
would be unlikely that a petitioner could do so. See Gibbs, 767 F.3d at
888 & n.8. That some pro se prisoner would take the risk of filing a
petition without an account certificate and have the good fortune of
receiving a conditional dismissal is insufficient to overcome the equitable
principle that inmates should not be forced to choose between submitting
an incomplete petition or an untimely one because of prison officials’
failure to provide prisoners with needed documents.
24 GRANT V. SWARTHOUT
control existed where the prison’s litigation coordinator
promised the petitioner’s lawyer that he would “obtain
[petitioner’s] signature in time for filing, but then broke his
promise, causing the filing to be late”). And, Grant has
shown that the delay of his petition until even December 2
was unexpected and that the prison account certificate was
delayed because of the long Thanksgiving weekend, budget
cuts, and unusually heavy employee workloads. In addition,
the record demonstrates that prison officials’ delay was the
cause of Grant’s petition being untimely: Grant sent his
request to prison officials on November 21, 2011, the same
day that he received the California Supreme Court’s denial of
state postconviction relief. At that point, he still had seven
days left in the one-year filing period. Grant received his
prison account certificate on December 19, 2011, and
constructively filed his petition that same day. Therefore,
absent prison officials’ delay, Grant would have filed his
petition within the AEDPA statute of limitations.
CONCLUSION
We therefore conclude that Grant is entitled to equitable
tolling from the time he requested his prison account
certificate on November 21, 2011 until he received that
certificate on December 19, 2011. His petition was therefore
timely. The district court’s order granting respondent’s
motion to dismiss is therefore reversed, and the case is
remanded for further proceedings consistent with this
opinion.
REVERSED and REMANDED.