Robert Rameses v. Scott Kernan

FILED
UNITED STATES COURT OF APPEALS FEB 18 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
EDWARD ONTIVEROS, No. 08-17317
Petitioner - Appellant, D.C. No. 2:07-cv-01441-JAM-
DAD
v. Eastern District of California,
Sacramento
R. J. SUBIA,
Respondent - Appellee. ORDER
Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.
The memorandum disposition filed on January 28, 2010 is hereby
withdrawn. A new memorandum disposition is filed concurrently herewith.
Appellant Ontiveros filed a pro se petition for panel rehearing on February 8,
2010, which was deficient because he has appointed counsel. That petition for
panel rehearing is hereby rendered moot.
FILED
NOT FOR PUBLICATION FEB 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
EDWARD ONTIVEROS, No. 08-17317
Petitioner - Appellant, D.C. No. 2:07-cv-01441-JAM-
DAD
v.
R. J. SUBIA, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted January 15, 2010
San Francisco, California
Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.
Edward Ontiveros, a California state prisoner, sought federal habeas relief to
challenge the parole board's decision to deny him parole. The district court
dismissed the case, finding that the one-year deadline for filing under the
Antiterrorism and Effective Death Penalty Act (AEDPA) had passed. See 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. y 2244(d)(1). Ontiveros claims that his petition was filed within the one-
year deadline because (1) the factual predicate date should not begin until after the
30-day period for gubernatorial review has elapsed, and (2) his claim was
'pending,' and thus tolled, see y 2244(d)(2), for the period between the factual
predicate date and his initial state filing. Ontiveros also claims that he is entitled to
equitable tolling. This court has jurisdiction under 28 U.S.C. yy 1291, 2253. As
the facts and procedural history are familiar to the parties, we do not recite them
here except as necessary to explain our decision. We affirm in part and reverse in
part.1
I. Statutory Tolling
A. Factual Predicate Date
The district court found that Ontiveros filed his petition 113 days after the
one-year limitations period had ended. Thus, even assuming that the factual
predicate date was defined as starting after the 30-day period for gubernatorial
review had elapsed, Ontivoros's claim would still be untimely (by 83 days). We
therefore decline to reach this issue.
1
Ontiveros's statutory tolling claims are not waived. See Laws v.
Lamarque, 351 F.3d 919, 924 (9th Cir. 2003) (holding that pro se petitions must be
construed liberally); Bolµer v. Comm'r of Internal Revenue, 760 F.2d 1039, 1042
(9th Cir. 1985) (discussing exceptions to waiver rule for issues that are purely legal
or that arise while appeal is pending).
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B. Tolling During the Pre-Filing Period
Ontiveros argues that his claim was 'pending,' for tolling purposes, see y
2244(d)(2), during the period between the board's final decision and Ontiveros's
initial habeas filing in state superior court (the pre-filing period). This pre-filing
period was 329 days long. If the statute of limitations had been tolled during this
period, Ontiveros's federal habeas petition would have been timely under AEPDA.
AEDPA provides for tolling while a prisoner attempts to exhaust his claims
in state court, stating: 'The time during which a properly filed application for
State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of limitation
under this subsection.' y 2244(d)(2). Ontiveros presents cogent arguments for why
tolling during the pre-filing period might be fair, especially in the context of parole
decision challenges. However, we find that the plain language of y 2244(d)(2)
does not permit tolling during the pre-filing period, as it requires that the state
petition be both 'properly filed' and 'pending.' Although Ontiveros's state
petition was eventually properly filed and pending, it could not be characterized as
such during the pre-filing period.
Furthermore, we have previously only permitted tolling 'from the time the
first state habeas petition is filed until the California Supreme Court rejects the
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petitioner's final collateral challenge.' Nino v. Galaza, 183 F.3d 1003, 1006 (9th
Cir. 1999) (footnote omitted); see also Redd v. McGrath, 343 F.3d 1077, 1084-85
(9th Cir. 2003) (holding that the limitations period begins to run on the day after
the board's parole decision becomes final). We reject Ontiveros's argument that In
re Burdan, 86 Cal. Rptr. 3d 549 (Ct. App. 2008), read in conjunction with Evans v.
Chavis, 546 U.S. 189, 193 (2006), justifies tolling during the pre-filing period
simply because his initial state petition was timely by California standards.
Although 'the timeliness of a petition for post-conviction relief filed in state court
is governed by state law[,] . . . the circumstances under which a state petition will
be deemed 'pending' for purposes of 28 U.S.C. y 2244(d)(2) is a federal question.'
Welch v. Carey, 350 F.3d 1079, 1080 (9th Cir. 2003) (en banc). We hold that
Ontiveros was not entitled to statutory tolling during the pre-filing period.
II. Equitable Tolling
Normally, Ontiveros's equitable tolling claim would be waived for his
attorney's failure to raise it in his opening brief.2 See Fed. R. App. P. 28(a)(9)(A);
see also Ind. Towers of Wash. v. Washington, 350 F.3d 925, 929-30 (9th Cir.
2003). However, prior to having counsel appointed, Ontiveros filed a pro se
2
The district court found, and we agree, that Ontiveros properly raised an
equitable tolling claim in the district court.
4
Opening Brief that remains part of our record. In that pro se document, Ontiveros
claims that his state habeas filing was delayed because he is 'mentally
incompetent,' and has a 'documented mental handicap.' Throughout the record he
also references prison locµ-downs that prevented timely filing. These claims,
liberally construed, are sufficient to preserve his equitable tolling claim on appeal.
To qualify for equitable tolling, a litigant 'bears the burden of establishing
two elements: (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). The district court found that Ontiveros was not entitled to equitable
tolling because he 'waited almost a year before filing his first state habeas
petition.' This restates the µnown fact that Ontiveros filed late, but does not
properly determine whether he pursued his rights diligently. The district court
failed to investigate whether Ontiveros diligently attempted to file his state
petition.
The district court also found that Ontiveros had not demonstrated that
extraordinary circumstances prevented him from timely filing. The court cites case
law holding that a lacµ of legal sophistication or temporary delays in prison law
library access are not, by themselves, grounds for equitable tolling. However, the
district court did not address Ontiveros's claim that his documented learning
5
disability caused his late filing. We have previously held that ''mental
incompetency justifies equitable tolling' of the AEDPA statute of limitations.'
Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003) (citing Calderon v. U.S. Dist.
Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc), overruled in part by
Woodford v. Garceau, 538 U.S. 202, 206 (2003)). The district court also failed to
determine the extent to which the prison locµ-down precluded Ontiveros's access
to the law library or to his legal files.
We therefore reverse the district court's dismissal of the petition and remand
for factual development, including an evidentiary hearing, with regard to
Ontiveros's equitable tolling claim. See Laws, 351 F.3d at 923-925. If the district
court determines that equitable tolling is warranted, it should proceed to the merits.
Otherwise, it should dismiss the petition as untimely.
Each party shall bear its own costs.
AFFIRMED in part; REVERSED and REMANDED in part.
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