Tenace Knight v. CDC , 629 F. App'x 817 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 05 2015
TENACE DEMOND KNIGHT, No. 11-17350 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Petitioner - Appellant, D.C. No. 4:10-cv-00276-SBA
v.
MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS and ROBERT H.
TRIMBLE, Warden,
Respondents - Appellees.
TENACE DEMOND KNIGHT, No. 14-16262
Petitioner - Appellant, D.C. No. 4:10-cv-00276-SBA
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS and TIM V. VIRGA,
Warden,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted October 19, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit
Judges.
Tenace Knight, a California State prisoner, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 petition as untimely and the denial of his Federal
Rule of Civil Procedure 60(b)(6) motion for relief from judgment. Because the
parties are familiar with the facts and procedural history, we will not recount it
here.
We have jurisdiction over this consolidated appeal pursuant to 28 U.S.C.
§§ 1291 and 2254. We review the district court’s dismissal of a habeas petition de
novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999), and denial of a Rule
60(b) motion for abuse of discretion, Foley v. Biter, 793 F.3d 998, 1001–02 (9th
Cir. 2015).
Equitable tolling of the Antiterrorism and Effective Death Penalty Act’s
(AEDPA’s) one-year statute of limitations is appropriate if (1) extraordinary
circumstances beyond a petitioner’s control prevent timely filing and (2) the
petitioner pursues their rights with reasonable diligence. Luna v. Kernan, 784 F.3d
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
640, 646 (9th Cir. 2015). The extraordinary circumstance need only proximately
cause the untimely filing. Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir.
2003). Because the Ninth Circuit has adopted the stop-clock approach to
calculating equitable tolling, the diligence inquiry turns on whether the petitioner
was diligent during the extraordinary circumstance. Gibbs v. LeGrand, 767 F.3d
879, 892 (9th Cir. 2014). “Diligence after an extraordinary circumstance is lifted
may be illuminating as to overall diligence, but is not alone determinative.” Id.
An extraordinary circumstance may exist if a petitioner mistakenly files their
petition in the wrong forum within the limitations period. See Burnett v. N.Y. Cent.
R.R. Co., 380 U.S. 424, 434 (1965); Oltman v. Holland Am. Line, Inc., 538 F.3d
1271, 1280 (9th Cir. 2008). Such an extraordinary circumstance existed in this
case. Knight was instructed by prison officials to send his federal habeas petition
to the state court in which he was convicted. He was told that the state court would
forward the petition to the proper forum. He did as instructed, operating under the
mistaken belief that the state court was the proper place to file the petition. It was
not until 44 days later, when Knight received the petition back from the state court,
that Knight realized the error.
Knight was also reasonably diligent throughout the limitations period.
Because Knight thought he had properly filed his petition, it was reasonable to stop
3
pursuing further remedies. Knight was thus diligent during the extraordinary
circumstance. Furthermore, Knight was diligent throughout the time of properly
filing the petition. As a prisoner in Administrative Segregation working full time,
it was nearly impossible for Knight to access the prison law library. Despite these
limitations, Knight attempted to access the law library and obtain the proper court
address on multiple occasions.
Given Knight’s diligence through the time of filing, the extraordinary
circumstance proximately caused the late filing. Because the statute of limitations
clock stopped for the 44 days Knight’s petition was with the state court, the
petition—which would otherwise have been untimely by 28 days—was filed 16
days before the statute of limitations expired.
REVERSED.
4
FILED
Knight v. CDC, Nos. 11-17350, 14-16262
NOV 05 2015
MCKEOWN, J., dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. The crux of Knight’s complaint is that he
inadvertently sent his 28 U.S.C. § 2254 habeas petition to state court, not federal
court, and consequently is entitled to equitable tolling. He admits that “the original
instructions that came with the petition forms had the federal court address on
them,” but states that “unfortunately, I overlooked that when I sent my petition.”
What occurred here cannot satisfy the requirement of “extraordinary circumstances
beyond a prisoner’s control [that] make it impossible to file a petition on time.”
Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013) (citation omitted) (first
emphasis added). His oversight, while unfortunate, is not an extraordinary
circumstance but simply amounts to garden-variety negligence. See Holland v.
Florida, 560 U.S. 631, 651-52 (2010) (“[A] garden variety claim of excusable
neglect, such as a simple ‘miscalculation’ that leads a lawyer to miss a filing
deadline, does not warrant equitable tolling.”) (citations omitted); Waldron-
Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (noting that mere
“oversight, miscalculation or negligence on [the petitioner’s] part . . . preclude[s]
the application of equitable tolling” (citation omitted)).
Knight’s admission that the correct address was on the forms also
undermines his excuse that a prison employee told him to mail his petition to state
court. Not only did Knight not know who allegedly told him the wrong address,
his declaration twice referred to the claimed deputy as a male. He said it might
have been Deputy Munoz, but Rebecca Munoz is a female floor officer. There is
no admissible evidence to support Knight’s claim that he received erroneous
advice from a prison official. Taken together, the allegations and evidence do not
establish extraordinary circumstances. I would affirm the district court and deny
Knight’s request for equitable tolling.