Danny Valdez v. v. M. Almager

FILED
NOT FOR PUBLICATION JUL 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANNY MARTINEZ VALDEZ, No. 09-55150
Petitioner - Appellant, D.C. No. 5:07-cv-01444-AHS-
RCF
v.
V. M. ALMAGER, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Argued and Submitted May 2, 2011
Pasadena, California
Before: PREGERSON, FISHER and BERZON, Circuit Judges.
Danny Valdez appeals the district court’s judgment dismissing his habeas
petition as untimely. We vacate and remand.
1. The district court denied statutory tolling for the 82-day interval
between the California Court of Appeal’s denial of Valdez’s second habeas
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
petition and Valdez’s filing of his third petition in the California Supreme Court
because Valdez “offer[ed] no justification for the delay.” In his objections to the
magistrate judge’s report and recommendation, however, Valdez, proceeding pro
se, offered an explanation for the delay, arguing that he did not have access to trial
transcripts and other legal materials. See Brown v. Roe, 279 F.3d 742, 745-46 (9th
Cir. 2002) (holding that the district court abused its discretion by failing to
consider a pro se petitioner’s tolling argument, even though it was raised for the
first time in objections to the magistrate judge’s report and recommendation).
Valdez’s explanation may have merit and should be addressed by the district court
on remand. As the district court has already noted, there is, even in the existing
record, evidence that Valdez diligently sought the transcripts. See Report &
Recommendation Sept. 26, 2008, at 4. There is also reason to conclude that the
lack of transcripts excused the delay, given that the California Superior Court had
previously denied relief on account of Valdez’s failure to provide record support to
substantiate his claims. Valdez should be permitted to file a supplemental
opposition to the motion to dismiss so that he may further address these issues.
2. Valdez also sought discovery to establish equitable tolling during the
168-day interval between the California Supreme Court’s denial of his third habeas
petition and the filing of his federal habeas petition. The district court denied the
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motion by assuming that Valdez was seeking tolling for only 41 days. Valdez’s
discovery motion, however, covered the entire 168-day period. The requested
discovery thus could have supported sufficient equitable tolling to render his
petition timely. See Brown, 279 F.3d at 744, 746 (holding that the district court
erred by dismissing a habeas petition as untimely when the pro se petitioner had
sought discovery needed for the factual development of his equitable tolling
claim).
For these reasons, we vacate the judgment and remand to the district court to
permit Valdez to conduct the requested discovery and present additional argument
on his statutory and equitable tolling claims. In particular, after permitting Valdez
to conduct the requested discovery, the court should reconsider whether Valdez is
entitled to statutory tolling during the 82-day interval between his state petitions
and whether he is entitled to equitable tolling during the 168-day interval – or
some portion thereof – between his state and federal petitions.
Valdez is advised that, to obtain equitable tolling, he must show “‘(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,
130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). “The movant must show that the extraordinary circumstances ‘were the
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cause of his untimeliness.’” United States v. Buckles, --- F.3d ----, 2011 WL
2150992, at *5 (9th Cir. June 2, 2011) (quoting Bryant v. Ariz. Attorney Gen., 499
F.3d 1056, 1061 (9th Cir. 2006)).
We decline the state’s invitation to consider whether the certificate of
appealability was improvidently granted. See Phelps v. Alameda, 366 F.3d 722,
726 (9th Cir. 2004) (“[M]erits panels are not required to examine allegedly
defective COAs in the face of jurisdictional challenges.”).
VACATED AND REMANDED.
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