Johnny Jones, III v. Timothy Filson , 705 F. App'x 595 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY LEE JONES III, No. 16-16528
Petitioner-Appellant, D.C. No. 3:15-cv-00320-HDM
v.
MEMORANDUM*
TIMOTHY FILSON and ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted October 23, 2017**
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
Nevada state prisoner Johnny Lee Jones III appeals pro se from the district
court’s order dismissing his petition under 28 U.S.C. § 2254 as untimely. We have
jurisdiction under 28 U.S.C. § 2253, and we vacate and remand for further
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3. Jones’s motion for oral argument
is denied.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
proceedings on equitable tolling.
Jones first contends that his petition is timely under 28 U.S.C. § 2244(d)(1)
because his trial counsel’s failure to pursue a direct appeal deferred the
commencement of the one-year limitations period under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). Our decision in Randle v. Crawford,
604 F.3d 1047 (9th Cir. 2010), forecloses Jones’s contentions that the one-year
AEDPA limitations period commenced on the date the Nevada Supreme Court
dismissed his untimely notice of appeal or on the date that the Nevada Supreme
Court granted him relief pursuant to Lozada v. State, 871 P.2d 944 (Nev. 1994).
See Randle, 604 F.3d at 1055-57.
Jones also contends that the district court erred by rejecting his equitable
tolling arguments. To establish entitlement to equitable tolling, Jones 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,
560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)).
Here, the signature and certification on Jones’s first state habeas petition
indicate that Jones may have submitted his petition for mailing as early as
December 8, 2006, approximately ten days before the expiration of the AEDPA
limitations period, and he filed a federal habeas petition approximately two months
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after the conclusion of his state habeas proceedings. If Jones establishes an
entitlement to tolling for any amount of time during the limitations period, that
time is subtracted from the total number of days that have passed from the date on
which the AEDPA limitations period began to run. See Grant v. Swarthout, 862
F.3d 914, 918 (9th Cir. 2017); see also Gibbs v. Legrand, 767 F.3d 879, 891-92
(9th Cir. 2014) (applying stop-clock rule to equitable tolling of AEDPA limitations
period). “If, after [the days during a tolled period] are subtracted, less than 365
days have passed,” Jones’s petition is timely. Grant, 862 F.3d at 918.
Jones seeks equitable tolling based on (1) the alleged destruction of his trial
transcripts, (2) his use of certain medication from December 2005 through January
2007, and (3) his trial counsel’s failure to file a direct appeal. We do not disturb
the district court’s determinations regarding Jones’s trial transcript claim. With
regard to the remaining two bases, we remand for further proceedings.
Jones submitted an affidavit explaining that after sentencing he began
receiving monthly injections of an anti-psychotic medication that caused extreme
confusion. If Jones demonstrates that the medication incapacitated him for even
short periods of time and prevented him from filing a habeas petition, the
limitations period would be tolled for those periods. See Gibbs, 767 F.3d at 892.
In the absence of specific controverting evidence from the state, Jones’s allegations
are sufficient, under the circumstances, to warrant further factual development of
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the record on this claim. See Orthel v. Yates, 795 F.3d 935, 940-41 (9th Cir. 2015).
With respect to Jones’s arguments regarding his counsel’s conduct, the
district court correctly recognized that “garden variety claim[s] of excusable
neglect”—such as miscalculating a deadline or filing an untimely appeal—are not
extraordinary circumstances warranting equitable tolling. See Gibbs, 767 F.3d at
885 (alteration in original) (quoting Holland, 560 U.S. at 651-52). Construing his
pro se briefing broadly, as we must, see Roy v. Lampert, 465 F.3d 964, 970 (9th
Cir. 2006), Jones also alleges that his counsel routinely failed to respond to letters
and inquiries regarding a direct appeal and incorrectly informed Jones’s family that
he had filed a direct appeal on Jones’s behalf. The district court failed to consider
whether these allegations are supported adequately in the record or amount to
client abandonment that would warrant equitable tolling. See Rudin v. Myles, 781
F.3d 1043, 1055-56 (9th Cir. 2015).
Because the district court did not consider these aspects of Jones’s
arguments regarding his use of medication and his counsel’s conduct, we remand
for further proceedings on those bases for equitable tolling. To the extent the
district court determines that Jones’s use of medication or his counsel’s conduct
amount to extraordinary circumstances, the district court must reassess Jones’s
diligence with respect to those circumstances. See Grant, 862 F.3d at 923 (holding
that a petitioner is not required to show diligence during all of the 365 days
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AEDPA provides for filing because the diligence inquiry is primarily concerned
with diligence “at the time [petitioner’s] efforts were being thwarted,” i.e., during
the period or periods for which equitable tolling is sought (quoting Gibbs, 767 F.3d
at 802)).
VACATED and REMANDED.
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