Ford v. Hubbard ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD HERMAN FORD,  No. 06-56092
Petitioner-Appellee,
v.  D.C. No.
CV-98-02557-FMC
CHERYL PLILER, Warden,
OPINION
Respondent-Appellant.

Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Argued and Submitted
March 9, 2009—Pasadena, California
Filed December 30, 2009
Before: Michael Daly Hawkins, Marsha S. Berzon and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton;
Partial Concurrence and Partial Dissent by Judge Berzon
16811
16814 FORD v. PLILER
COUNSEL
Lisa M. Bassis, Beverly Hills, California, for the petitioner.
Paul M. Roadarmel, Jr., supervising Deputy Attorney Gen-
eral, Los Angeles, California, for the respondent.
OPINION
CLIFTON, Circuit Judge:
Petitioner Richard Herman Ford is currently a prisoner in
state custody. He has challenged his confinement by filing
two habeas corpus petitions in federal district court. Those
petitions were originally dismissed by the district court as
untimely based on the one-year federal statute of limitations
FORD v. PLILER 16815
under 28 U.S.C. § 2244(d)(1). This court reversed the dis-
missal, in part, in a decision that held that district courts must
advise petitioners regarding certain aspects of dealing with the
statute of limitations before dismissing habeas petitions. Ford
v. Hubbard, 330 F.3d 1086, 1099 (9th Cir. 2003). The
Supreme Court disagreed with and vacated our decision, hold-
ing that the advisements were not required. Pliler v. Ford, 542
U.S. 225 (2004). The Court remanded the case for further pro-
ceedings, in light of this court’s “concern that [Ford] had been
affirmatively misled.” Id. at 234.
On remand, the district court determined that it had affir-
matively misled Ford and thus the limitations period should
be equitably tolled. The state successfully sought leave to
appeal that determination, and we reverse it as inconsistent
with the decision of the Supreme Court. Because Ford has not
established that the limitations period should be equitably
tolled, his federal habeas petitions must be dismissed as
untimely.
I. Background
On April 19, 1997, Ford signed and delivered to prison
authorities two pro se federal habeas corpus petitions. The
first petition related to Ford’s California state court convic-
tions for, among other things, conspiring to murder John
Loguercio and attempting to murder Loguercio’s wife. The
second related to his convictions for first-degree murder and
conspiracy to commit the murder of Thomas Weed.1
Under the Antiterrorism and Effective Death Penalty Act
(AEDPA), there is a “1-year period of limitation” for “appli-
cation for a writ of habeas corpus by a person in custody pur-
suant to the judgment of a State court.” 28 U.S.C.
§ 2244(d)(1). Because Ford’s convictions in both cases
1
For more detail concerning the background of this case, see our previ-
ous decision, Ford, 330 F.3d at 1094-97.
16816 FORD v. PLILER
became final prior to the enactment of AEDPA, his one-year
period for filing a habeas petition in federal court began on
AEDPA’s effective date of April 24, 1996. Ford, 330 F.3d at
1097; see Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.
2001). Ford filed his petitions on April 19, 1997, making both
petitions timely, but with only five days to spare. Pliler, 542
U.S. at 228.
Although some of the claims in each of Ford’s petitions had
previously been raised in state court, other claims in each
petition had not been so exhausted. Recognizing that the
inclusion of unexhausted claims prevented the district court
from entertaining his petitions in their current state, see Rose
v. Lundy, 455 U.S. 509, 522 (1982), Ford filed at the same
time motions to stay proceedings on his petitions. He hoped
that by doing so he could return to state court to exhaust his
unexhausted claims and then refile in federal court and have
all of his claims heard on the merits.
The district court did not grant those motions to stay. The
magistrate judge assigned to the case explained that the court
only had power to stay proceedings for habeas petitions con-
taining exclusively exhausted claims. He asked Ford to select
a course of action from among three alternatives. Those
options were: (1) to dismiss his petitions without prejudice
and then, after exhausting in state court the previously unex-
hausted claims, to refile in federal court; (2) to dismiss the
unexhausted claims and present the federal court with only his
exhausted claims; or (3) to demonstrate that all of his claims
had already been exhausted in state court. The magistrate
judge also told Ford that if he failed to choose one of these
options, his petitions would be dismissed without prejudice.
Ford chose to dismiss the Loguercio petition without preju-
dice. He failed to respond with respect to the Weed petition.
As a result, the district court dismissed both petitions without
prejudice.
FORD v. PLILER 16817
Shortly afterwards, seeking to exhaust all his claims, Ford
filed habeas corpus petitions for both cases in the California
Supreme Court. Each petition was subsequently denied. Ford
then refiled both of his federal habeas petitions on April 1,
1998. By that time, however, the one-year limitations period
for filing a habeas petition in federal court had long since run.
Indeed, it had already expired by the time the district court
identified for Ford the three options explained above. Ford’s
petitions were thus untimely, and the district court dismissed
them with prejudice.
Ford appealed. As indicated above and as will be discussed
more fully below, this court affirmed in part, vacated in part,
and remanded with instructions, with one judge dissenting.
The Supreme Court disagreed with our reasoning, however,
vacated our decision, and remanded for further proceedings
on the question of whether Ford had been “affirmatively mis-
led” by the district court.
We, in turn, remanded to the district court to conduct such
further proceedings. Because of another issue previously
raised by Ford but not reached by us on the first appeal, we
also asked the district court to determine “whether [Ford]’s
attorney failed or refused to provide [him] with parts of his
legal files . . . and whether the attorney’s conduct constitutes
an ‘extraordinary circumstance’ that would warrant equitable
tolling.”
In the district court, the case was assigned to the same mag-
istrate judge who had been responsible for the case previously
and who had identified the three options for Ford. In his
Report and Recommendation, that magistrate judge found that
Ford had in fact been affirmatively misled. The Report dis-
cussed the events surrounding Ford’s initial filings and the
dismissal of those petitions “without prejudice” and noted that
Ford, by his filing of the motions to stay, “made it clear that
he sought to preserve his ability to have all of his claims con-
16818 FORD v. PLILER
sidered on the merits.” It concluded that the court had not at
that time responded properly:
In the context created by petitioner’s requests to
stay his first petitions, the Magistrate Judge’s denial
of the stays, citing the Rose requirement that the
court dismiss “mixed” petitions but not mentioning
the proper method for accomplishing a stay-and-
abeyance, contributed to petitioner’s mistaken belief
that the court’s option of dismissing his petitions
without prejudice would accomplish what he was
requesting. Notwithstanding the Supreme Court’s
subsequent holding that district courts are not
required to volunteer stay-and-abeyance advice, in
the circumstances of the instant case, petitioner was
affirmatively misled because the court’s omission of
an explanation of the stay-and-abeyance procedure
came in response to petitioner’s requests to stay his
petitions.
The Report also noted that the court’s previous order
“made no mention of the AEDPA statute of limitations as one
of the factors petitioner should consider in choosing which
option to follow.” In particular, the court’s order at the time
“did not inform petitioner that the AEDPA statute of limita-
tions would apply to his second federal petitions, further
cementing petitioner’s mistaken belief that dismissal without
prejudice was the court’s suggested method of permitting him
to both exhaust his unexhausted claims, and to comply with,
or more specifically, to toll, AEDPA’s statute of limitations.”
The Report concluded:
By failing to specifically address this concern, and
simply proceeding to issue [a Report and Recom-
mendation] dismissing without prejudice (even
though this dismissal would permanently bar peti-
tioner from having his exhausted claims considered
FORD v. PLILER 16819
on their merits in federal court, an effect contrary to
petitioner’s stated desire), it affirmatively (though
unintentionally) misled petitioner.
Since Ford had reasonably relied, to his detriment, on the
court’s affirmatively misleading instructions, the Report rec-
ommended that the AEDPA one-year limitations period
should be equitably tolled and that Ford should be permitted
to pursue the exhausted claims in his petitions.
In addition, per our instructions, the magistrate judge dis-
cussed Ford’s legal file and whether this might also provide
Ford a basis for equitable tolling. The magistrate judge deter-
mined that Ford was not entitled to equitable tolling on that
basis because the record revealed that Ford was aware of the
factual basis of his claims well before he obtained his legal
materials. As a result, “even assuming, arguendo, that state
appellate counsel’s conduct in failing to provide [Ford] with
[his complete file] was egregious,” the Report found no basis
on which to find that the attorney’s conduct had made it
impossible for Ford to file a timely federal habeas petition.
The district court concurred and adopted the magistrate
judge’s conclusions. The state sought permission to take an
immediate appeal, and the district court certified the matter
for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). This
court granted permission to appeal.
II. Discussion
Ford contends that the limitations period for filing his
habeas petitions should be tolled for two separate reasons:
because he was affirmatively misled by the district court and
because he could not obtain his legal file and as a result was
unable to file his petitions on a timely basis. Both issues are
now before us, and we address each in turn. Whether the stat-
ute of limitations should be equitably tolled is a question we
16820 FORD v. PLILER
review de novo. Waldron-Ramsey v. Pacholke, 556 F.3d
1008, 1011 (9th Cir. 2009).
A. Ford was not affirmatively misled.
[1] Our decision on the primary issue in this case is con-
trolled by the Supreme Court’s opinion in this same case. The
district court gave Ford accurate instruction before dismissing
his mixed habeas petitions without prejudice. Pliler does not
allow us to require anything more. The Court made clear that
to prevail Ford had to demonstrate that he “had been affirma-
tively misled quite apart from the District Court’s failure to
give the two warnings” required in this court’s previous deci-
sion. Pliler, 542 U.S. at 234. The basis for the district court’s
conclusion that Ford was “affirmatively misled” is not, in sub-
stance, different from the basis of our prior decision, which
was rejected by the Supreme Court.
The two warnings referenced by the Supreme Court were
described in our first decision in this case, when we held that
the district court erred by failing to inform Ford (1)
that it could consider his stay motions only if he
opted to amend the petitions and dismiss the then-
unexhausted claims, and (2) that his federal claims
would be time-barred, absent cause for equitable
tolling, upon his return to federal court if he opted to
dismiss the petitions “without prejudice” and return
to state court to exhaust all of his claims.
Ford, 330 F.3d at 1093.
More specifically, we first determined that “the district
court was obligated to inform [Ford] of his options with
respect to his mixed habeas petitions,” i.e., how to correctly
acquire a stay, id. at 1099, reasoning that by not doing so the
court “deprived Ford of a fair and informed opportunity to
have his stay motions heard,” id. at 1100. Second, we held
FORD v. PLILER 16821
that “[t]he district court further erred when it failed to inform
Ford that . . . he would be time-barred under AEDPA . . . if
he either failed to amend his petitions or chose the option of
dismissing them . . . .” Id. We noted that the court “defini-
tively . . . misled him by informing him that if he opted to dis-
miss the petitions . . ., the dismissal would be without
prejudice,” and explained that the district court should have
told Ford that because AEDPA’s statute of limitations had
expired, “the dismissal, although ostensibly without prejudice,
would actually result in a dismissal with prejudice unless he
could establish that . . . he was entitled to equitable tolling.”
Id. at 1100-01. We concluded by stating that the district court
misled Ford, depriving him of the opportunity to make a
meaningful choice, and held that this amounted to prejudicial
error. Id. at 1101-02. In sum, we required district courts to
give two specific warnings before dismissing habeas petitions
such as Ford’s.
[2] The Supreme Court reversed, holding “that federal dis-
trict judges are not required to give pro se litigants these two
warnings.” Pliler, 542 U.S. at 231. The Court reasoned that
“[e]xplaining the details of federal habeas procedure and cal-
culating statutes of limitations are tasks normally and properly
performed by trained counsel” and held that “[d]istrict judges
have no obligation to act as counsel or paralegal to pro se liti-
gants.” Id. To decide otherwise, the Court said, “would under-
mine district judges’ role as impartial decisionmakers” and
risk further confusion for petitioners. Id. at 231-32.
As described above, on remand the district court concluded
that it had affirmatively misled Ford, holding that the court
should have provided him “an explanation of the stay-and-
abeyance procedure” and should have informed him “that the
AEDPA statute of limitations would apply to his second fed-
eral petitions.” But those are the very same instructions that
the Supreme Court held that district courts were not required
to give. Id. at 231, 234. The Court was explicit in holding that
the door was open to Ford only for a claim that he had been
16822 FORD v. PLILER
affirmatively misled “quite apart from the District Court’s
failure to give the two warnings.” Id. at 234.
[3] The fact that Ford’s actions evidenced a desire to have
his claims heard cannot change this result. We agree that Ford
wanted to have his claims heard and resolved on the merits.
But all of the facts cited in the Report and Recommendation
adopted by the district court were part of the record of this
case and known to the Supreme Court when it rendered its
decision. The Pliler decision recited as fact that Ford “filed
motions to stay . . . so that he could return to state court to
exhaust the unexhausted claims.” Id. at 228. When Ford dis-
missed his first federal petitions, nominally without prejudice,
the limitations period for a federal filing had already expired,
a point we highlighted in our previous decision. Ford, 330
F.3d at 1100. It was obvious that Ford did not understand that
dismissing the federal petitions would prevent him from
returning to federal court with any of his claims, or else he
never would have selected that alternative. That, however, did
not alter the Court’s decision in Pliler.
More broadly, it can be assumed that all habeas petitioners
would prefer not to see their petitions dismissed on statute of
limitations grounds and would instead prefer that the court
reach the merits, but that is not enough to excuse untimely fil-
ings. Nor is it a sufficient basis for us to hold that the district
court was required in this case to give the warnings which
Pliler held district courts are not required to give.
[4] Pliler does not leave us room to rule otherwise. The
Court stated in Pliler that “[d]istrict judges have no obligation
to act as counsel or paralegal to pro se litigants.” 542 U.S. at
231; see also Robbins v. Carey, 481 F.3d 1143, 1148 (9th Cir.
2007) (“Pliler extends beyond the giving of two warnings to
pro se litigants because district courts have no obligation to
act as counsel or paralegal to pro se litigants and because the
Constitution does not require judges to take over chores for a
pro se defendant that would normally be attended to by
FORD v. PLILER 16823
trained counsel as a matter of course.” (internal quotation
marks, citations, and brackets omitted)). We cannot hold that
district judges somehow do have such an obligation simply
because it seems clear that a pro se petitioner otherwise might
not understand the relevant law. This risk of misunderstand-
ing will be present for most, if not all, pro se litigants. That
exception would swallow the rule.2
[5] In order to show that he was affirmatively misled, Ford
needed to point to some inaccuracy in the district court’s
instructions. He has failed to identify any affirmative mis-
statement. The description of the dismissals of the petitions as
“without prejudice” does not represent such a misstatement,
because those dismissals were in fact without prejudice, as
that term is understood in its legal sense. See Black’s Law
Dictionary 502 (8th ed. 2004) (“A dismissal that does not bar
the plaintiff from refiling the lawsuit within the applicable
limitations period.”). We have previously so held. In Bram-
bles v. Duncan, 412 F.3d 1066, 1068-70 (9th Cir. 2005), we
explained that the court presented “accurate options,” one of
which was dismissal without prejudice, even though the
2
Any implication in the dissenting opinion that Justice O’Connor’s con-
curring opinion expressed a different view is unfounded. Justice O’Connor
joined in the majority. As her concurring opinion explained, she wrote to
highlight that “[t]he propriety of the stay-and-abeyance procedure gener-
ally is not addressed” in the majority opinion, and that such an approach
“is not an idiosyncratic one” but rather had been approved by seven of the
eight Circuits to consider it. 542 U.S. at 234. That is not at issue here.
What matters for this case is that she expressly agreed with the majority
opinion that the district court is not required to calculate whether any time
remained on the limitations period for the individual petitioner:
For the reasons given by the majority, ante, at 231-233, it is not
incumbent upon a district court to establish whether the statute of
limitations has already run before explaining the options avail-
able to a habeas petitioner who has filed a mixed petition.
Id. at 235.
16824 FORD v. PLILER
options were given “twelve days after the AEDPA’s one-year
statute of limitations had expired.”3
[6] A petitioner’s misunderstanding of accurate information
cannot merit relief, as equitable tolling requires a petitioner to
show that some “extraordinary circumstance[ ] beyond [his]
control” caused his late petition, see, e.g., id. at 1069 (internal
quotation marks omitted), and this standard has never been
satisfied by a petitioner’s confusion or ignorance of the law
alone. Waldron-Ramsey, 556 F.3d at 1011 (“To apply the doc-
trine in extraordinary circumstances necessarily suggests the
doctrine’s rarity, and the requirement that extraordinary cir-
cumstances stood in his way suggests that an external force
3
We are not persuaded that our decision in Brambles can be disregarded
or distinguished based on the “terseness” of its discussion, as the dissent-
ing opinion, at 16832-33, suggests. The issue there was essentially the
same as the issue in this case, and it is plain that the Brambles panel
understood the issue and spoke to it. That decision concluded that the
instructions given to petitioner by the district court, which included the
words “without prejudice” even though, as here, the AEDPA one-year
limitations period had already run by the time the instructions were given,
“were not affirmatively misleading. They presented accurate options avail-
able to Brambles.” 412 F.3d at 1070. The decision included an additional
explanation that underscores the similarity of the issue in that case:
If anything was misleading, it was what the district court did not
tell Brambles — that the dismissal of his first petition would
effectively be final unless he could establish that the statute of
limitations period was equitably tolled, and that the stay and abey
process was available. However, the Supreme Court in Pliler
admonished district courts against attempting to explain to pro se
litigants these federal habeas procedures, stating that attempting
to do so might prove to be misleading. Pliler, 124 S.Ct. at 2446.
Id. at 1070-71.
Nor are we persuaded by the dissenting opinion’s citation to decisions
by this court that predate the Supreme Court’s decision in Pliler. Notably,
the citation to Tillema v. Long, 253 F.3d 494, 504 (9th Cir. 2001), points
specifically to a paragraph that also spoke of “why district courts must
take special care to advise habeas petitioners of their option to strike unex-
hausted claims in light of AEDPA.” 235 F.3d at 503.
FORD v. PLILER 16825
must cause the untimeliness, rather than . . . merely oversight,
miscalculation or negligence on the petitioner’s part . . . .”)
(internal quotation marks and brackets omitted); Rasberry v.
Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“We now . . .
hold that a pro se petitioner’s lack of legal sophistication is
not, by itself, an extraordinary circumstance warranting equi-
table tolling.”). A petitioner like Ford must show that the
court erred in the instruction it did give him. This was our
holding in Brambles, see 412 F.3d at 1070-71, and Ford has
not satisfied that requirement.
[7] “As a result of the interplay between AEDPA’s 1-year
statute of limitations and Lundy’s dismissal requirement, peti-
tioners who come to federal court with ‘mixed’ petitions run
the risk of forever losing their opportunity for any federal
review . . . .” Rhines v. Weber, 544 U.S. 269, 275 (2005). This
is the reality of the current state of law, a reality that includes
Pliler. In this case, the district court gave Ford accurate
instruction before dismissing his mixed habeas petitions with-
out prejudice. Pliler does not require anything more. While
Ford may have been, and likely was, confused about the oper-
ation of the statute of limitations, he was not affirmatively
misled by the district court. He is not entitled to equitable toll-
ing of the limitations period on that ground.
B. The missing legal files did not prevent Ford from timely
filing.
Also before us is the district court’s determination that Ford
is not entitled to equitable tolling based on his state appellate
counsel’s conduct. Ford argues that his attorney did not pro-
vide him with “the complete set of his legal papers” until July
of 1997 and, therefore, it was impossible for him to have dis-
covered the factual predicate for his newly asserted claims
until that time.
[8] The problem for Ford is that he never objected to the
district court’s factual finding that he “was aware of the fac-
16826 FORD v. PLILER
tual bases of his . . . claims as early as 1992.” As a result, he
has waived any challenge to that finding, and we must take it
as true. Robbins, 481 F.3d at 1146; United States v. Torf, 357
F.3d 900, 910 (9th Cir. 2004). This posture makes it quite
clear that regardless of when Ford’s attorney provided him his
complete legal files, his alleged inability to access them can-
not be “the cause of his untimeliness” since he did not need
the legal materials they contained to file a timely habeas peti-
tion. Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1061 (9th Cir.
2007) (internal quotation marks omitted). As such, the district
court was correct in denying Ford equitable tolling. See id.III. Conclusion
Ford was not affirmatively misled by the district court.
Although it failed to advise him of the likely consequences of
his procedural options, the district court accurately presented
those options to him. This is all it was required to do. In addi-
tion, Ford is not entitled to equitable tolling on the ground
that he did not have his legal files because the record shows
that he was aware of the factual basis of his claims without
them.
Ford’s petitions were filed after the limitations period had
run. The petitions do not qualify for equitable tolling of the
limitations period, so they were untimely and must be dis-
missed.
AFFIRMED IN PART; REVERSED IN PART.
BERZON, Circuit Judge, concurring in part and dissenting in
part:
I cannot agree with the majority’s conclusion in Part II.A
that Pliler v. Ford, 542 U.S. 225 (2004), forecloses the possi-
bility that Ford was affirmatively misled by the language
FORD v. PLILER 16827
“without prejudice.” I would instead affirm the district court’s
finding. I therefore dissent from the majority’s holding to the
contrary.
I.
Contrary to the majority’s suggestion, the Supreme Court
in Pliler quite clearly left open the question whether, by spell-
ing out options and describing one as dismissal “without prej-
udice” in the context of Ford’s expressed desire to stay his
petitions, the district court affirmatively misled Ford.
The Supreme Court recognized that the Ninth Circuit opin-
ion in the case suggested Ford was “misled . . . by telling him
that if he chose the first option, the dismissal would be with-
out prejudice.” Id. at 229. It then expressly limited its holding
to whether the district court should have been affirmatively
required to advise Ford (1) that it could consider his motions
to stay the mixed petitions only if Ford chose to dismiss the
unexhausted claims and (2) that, absent equitable tolling, he
would be time-barred if he accepted dismissal “without preju-
dice.” Id. at 231. After reversing this court as to the need for
such advisements, the Court then “remand[ed] the case for
further proceedings given the Court of Appeals’ concern that
[Ford] had been affirmatively misled quite apart from the Dis-
trict Court’s failure to give the two warnings.” Id. at 234. As
the use of the “without prejudice” phrase was the only possi-
bly misleading language identified in the majority opinion, it
is evident that the express reservation reached the impact of
that phrase.
That the Supreme Court did not foreclose the possibility
that Ford was misled by the “without prejudice” phrase is
confirmed by the concurring and dissenting opinions in Pliler.
Justice O’Connor, who cast the fifth vote to form the major-
ity, conditioned her concurrence on the possibility that the
court on remand could find Ford was affirmatively misled. Id.
at 235 (O’Connor, J., concurring); see also id. at 234 (“I join
16828 FORD v. PLILER
the Court’s opinion because it is limited to the narrow ques-
tion whether the notifications crafted by the Ninth Circuit
must be given.”). As, again, the “without prejudice” phrase
was the language identified by the majority opinion as possi-
bly misleading, I read Justice O’Connor’s concurrence as
dependent upon leaving the question of the impact of that
phrase on Ford undecided.
This understanding is confirmed by the other concurrence,
that of Justice Stevens, joined by Justice Souter. Justice Ste-
vens wrote that “remanding to the Ninth Circuit to determine
the propriety of equitable tolling” was the appropriate judg-
ment, but explicitly agreed with the substance of Justice Gins-
burg’s dissent. Id. at 235 (Stevens, J., concurring). Justice
Ginsburg, in turn, expressly stated that it was the description
of the dismissal orders as “without prejudice” that, in context,
was “highly misleading.” Id. at 236 (Ginsburg, J., dissenting).
In sum, the Supreme Court in Pliler left open the “affirma-
tively misled” issue, where the only possibly affirmatively
misleading language identified in the opinions was the “with-
out prejudice” phrase. There’s just no doubt that the issue left
open in the next-to-last sentence of the majority opinion in
Pliler v. Ford was whether the admonition the district court
did give, using the term dismissal “without prejudice,” was
misleading.
II.
Having determined that Pliler does not answer the question
before us, I would affirm the district court’s finding that Ford
was affirmatively misled. This finding is deserving of our def-
erence because the district court is most intimately familiar
with the facts. See Whalem/Hunt v. Early, 233 F.3d 1146,
1148 (9th Cir. 2000) (per curiam) (en banc) (describing the
determination of “whether there are grounds for equitable toll-
ing” as “highly fact-dependent”).
FORD v. PLILER 16829
The district court’s determination is, moreover, in line with
our case law. We have recognized that a dismissal “without
prejudice” is in fact “with prejudice” when it is definite that
an individual’s petition or claim cannot be successfully refiled
because time-barred by the time of the dismissal. See, e.g.,
Tillema v. Long, 253 F.3d 494, 504 (9th Cir. 2001) (noting
that when a habeas petition is dismissed after AEDPA’s limi-
tation period has ended, “it cannot accurately be said that the
dismissal of [the] petition was . . . ‘without prejudice’ ”); Pen-
sion Ben. Guar. Corp. v. Carter & Tillery Enter., 133 F.3d
1183, 1187 (9th Cir. 1998) (holding that a district court
abused its discretion by dismissing a plaintiff’s complaint
“without prejudice” rather than staying the proceedings
because although “the dismissal was without prejudice, given
the statute of limitations [expiration], the dismissal was effec-
tively with prejudice”).
For its contrary conclusion that the court’s instructions
were accurate and therefore could not be misleading, the
majority disregards these precedents and instead relies heavily
on the Black’s Law Dictionary definition of “dismissal with-
out prejudice” as “[a] dismissal that does not bar the plaintiff
from refiling the lawsuit within the applicable limitations
period.” Maj. Op. at 16823 (quoting BLACK’S LAW DICTIONARY
502 (8th ed. 2004)). This definition simply cannot bear the
weight placed on it.
As I read it, the definition assumes that any applicable limi-
tations period has not yet expired when a “dismissal without
prejudice” occurs. It makes no sense to speak of “refiling the
lawsuit within the applicable limitations period” when the
period is over at the time of the dismissal. I very much doubt
that Black (or, more probably, his successors) had in mind
that anomaly when he fashioned the definition.
My reading is confirmed by Black’s separate entry for
“without prejudice” as meaning “[w]ithout loss of any rights;
in a way that does not harm or cancel the legal rights or privi-
16830 FORD v. PLILER
leges of a party .” BLACK’S
LAW DICTIONARY 1632 (emphasis added); see also BRYAN A.
GARNER, A DICTIONARY OF MODERN LEGAL USAGE 937 (2d ed.
1995) (defining “without prejudice” as describing “a legal
action—either judicial or among private parties—that in no
way harms or cancels the legal rights or privileges of a party”
(emphasis added)). The majority’s reading of the definition of
“dismissal without prejudice” cannot be squared with this def-
inition of “without prejudice.” Ford’s right to have his
exhausted claims heard was, according to the majority, for-
ever lost at the moment of dismissal. See Maj. Op. at 16825.
If so, the dismissal was certainly not “without prejudice” as
defined by Black’s and by Garner, as the result of the dis-
missal was, emphatically, to “harm or cancel . . . legal rights.”
So describing the option of dismissal as “without prejudice”
was not accurate even under ordinary legal usage.
In any event, where a court, as here, gives options to a pro
se litigant, reliance on the legal dictionary definition of “with-
out prejudice” should not be determinative of what the litigant
was reasonably led to believe by the court. Pliler to some
degree supports this conclusion, because it explains why a
court’s affirmative advice to a pro se petitioner can be mis-
leading and so should be limited. See 542 U.S. at 231-32 (stat-
ing that “to the extent that respondent is concerned with a
district court’s potential to mislead pro se habeas petitioners,
the warnings respondent advocates run the risk of being mis-
leading themselves”).
Moreover, in this instance the magistrate judge must have
known that the limitations period had expired on the
exhausted claims, as the original habeas petitions so informed
him: Ford’s original habeas petitions stated that by Ford’s
own calculations, the limitations period was about to expire
when the petitions were filed. See Loguercio petition dated
April 19, 1997 (“Petitioner advises court that due to haste to
meet deadline imposed by Public Law 104-132-Apr. 24 1996,
several additional meritorious issues beyond what has been
FORD v. PLILER 16831
stated in this motion may exist.”); Weed petition dated April
19, 1997 (“Petitioner advises court that due to haste to meet
the April 23, 1997, statute of limitations deadline for federal
habeas corpus petitioners, petitioner may have missed addi-
tional issues beyond what is mentioned in this motion.”). The
magistrate judge was therefore on notice that dismissal “with-
out prejudice” of the exhausted claims after April 23, 1997,
would effectively be “with prejudice.”
Even if that were not so, our case law approves of equitable
tolling based on affirmatively misleading actions not the
result of knowing misinformation. For example, Harris v.
Carter, 515 F.3d 1051, 1056 (9th Cir. 2008), held that a
habeas petitioner was entitled to equitable tolling where he
“was misled by reliance on our precedent rather than by a
statement of the court addressed directly to him [because] the
consequences [of both] were the same.” There was, of course,
no allegation that the Court had issued an incorrect prior legal
decision knowing that the opinion was not correct. Harris
explicitly acknowledged Pliler, which it said implied “equita-
ble tolling would likely be appropriate in at least some situa-
tions where a petitioner is affirmatively misled by a district
court.” Id. See also Prieto v. Quarterman, 456 F.3d 511, 516
(5th Cir. 2006) (holding that equitable tolling was appropriate
where the district court granted petitioner an “extension” to
file his habeas petition that exceeded the one-year AEDPA
deadline and noting that “[o]rders such as these have the
effect of unintentionally misleading the prisoner, and . . . may
warrant equitable tolling” (brackets and quotation marks
omitted) (emphasis added)); Spottsville v. Terry, 476 F.3d
1241, 1245, 1246 (11th Cir. 2007) (holding that a petitioner
was entitled to AEDPA equitable tolling where he “relied on
the misleading instructions” of and was “affirmatively mis-
led” by a state habeas court when the court instructed the peti-
tioner to file his appeal with the wrong court); Jackson v.
Astrue, 506 F.3d 1349, 1357 (11th Cir. 2007) (noting that the
Eleventh Circuit, in habeas and other contexts, had applied
equitable tolling “where there [was] no evidence of deliberate
16832 FORD v. PLILER
concealment, but where the claimant nevertheless ha[d] been
misinformed by a court’s misleading actions or instructions”).
The sum of the matter is that the district court found that
Pliler was affirmatively misled when he was informed that the
dismissal which would make it impossible to litigate his
exhausted claims was “without prejudice,” and we have no
basis for upsetting that finding.
III.
Neither our opinion in Brambles v. Duncan, 412 F.3d 1066(9th Cir. 2005), nor any other opinion of this court, forecloses
this conclusion.
The majority reads Brambles to hold that an advisement
using the term “dismissal without prejudice” cannot as a mat-
ter of law be misleading, even when given after the limitation
period has expired. See Maj. Op. at 16823-24. Rather, to war-
rant equitable tolling, “[a] petitioner like Ford must show that
the court erred in the instruction it did give him.” Id. at 16825.
On balance—although the question is not free from doubt—I
would not adopt this interpretation of Brambles.
Given the terseness of the opinion, it is unlikely that Bram-
bles determined that a “dismissal without prejudice” advise-
ment can never be misleading, even if the limitations period
has run, and even if, as here, the judge who gave the advise-
ment concludes that the petitioner was affirmatively and rea-
sonably misled.1 Although Brambles mentions that the
“dismissal without prejudice” phrase was used in the advise-
ment given Brambles, the opinion does not isolate that lan-
guage or discuss whether those specific words are or are not
misleading. See 412 F.3d at 1070. Instead, Brambles says
1
The district court in Brambles had determined that Brambles was not
entitled to equitable tolling. 412 F.3d at 1069.
FORD v. PLILER 16833
only that the alternatives given to Brambles, as a whole,
“were not affirmatively misleading.” Id.A panel of this court may consider the merits of an issue
that was not “ ‘squarely addressed’ ” by an earlier case. See
Morales-Garcia v. Holder, 567 F.3d 1058, 1064 (9th Cir.
2009) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631
(1993)). As the specific question whether “dismissal without
prejudice” can ever be misleading was not discussed in Bram-
bles, I would hold that Brambles does not control this case.
Aside from Brambles, the majority relies on Rasberry v.
Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006), and Waldron-
Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009), for
its conclusion that the extraordinary circumstances “standard
has never been satisfied by a petitioner’s confusion or igno-
rance of the law alone.” Maj. Op. at 16824. When these cases
are read in context, they are not particularly relevant.
In Rasberry, we held that “a pro se petitioner’s lack of legal
sophistication is not, by itself, an extraordinary circumstance
warranting equitable tolling.” 448 F.3d at 1154 (emphasis
added). Rasberry considered whether a petitioner’s “inability
correctly to calculate the [AEDPA] limitations period” and
whether a district court’s failure to notify a petitioner that he
could amend his habeas petition to include exhausted claims
“if it is apparent from the record that the petitioner meant to
include the claims,” regardless of “whether the habeas peti-
tion itself demonstrates [that] intent,” are extraordinary cir-
cumstances. Id. at 1153-54. It did not consider whether
specific options affirmatively given by a district court could
be misleading, such that a petitioner’s resulting confusion was
an extraordinary circumstance.
Waldron-Ramsey is even further from the mark. In that
case, decided after Rasberry and Brambles, we held that the
petitioner “was not diligent in the filing of his federal habeas
petition,” and so reserved the question “whether confusion
16834 FORD v. PLILER
about AEDPA law or confusion about what action the state
court has taken can ever be the type of extraordinary circum-
stance that may warrant equitable tolling.” Waldron-Ramsey,
556 F.3d at 1013.
CONCLUSION
In sum, Ford was affirmatively misled by the language that
the court chose to use in describing his options. In its consid-
ered judgment, the district court so found on remand, and the
Supreme Court in Pliler did not erect a barrier to this finding.
Indeed, the Supreme Court remanded for this very purpose. I
would not read Brambles as dictating a contrary result in this
case.
Alternatively, if Brambles does have the force the majority
thinks it does, I would conclude that it was wrongly decided
and would recommend en banc reversal by this court. The
panel in Brambles should not have adopted a per se rule that
telling a pro se litigant his dismissal is “without prejudice”
can never be misleading. Ford’s case offers a compelling
example of why this is so. It was logical for Ford to be con-
fused as to the meaning of a dismissal without prejudice,
given the common understanding of the term “without preju-
dice.” See, e.g., THE COMPACT OXFORD ENGLISH DICTIONARY:
NEW EDITION 356 (reprinted 1999) (2d ed. 1991) (defining
“without prejudice” as “without detriment to any existing
right or claim”); see also id. (defining the verb “prejudice” as
“[t]o affect injuriously or unfavourably by doing some act, or
as a consequence of something done; to injure or impair the
validity of (a right, claim, statement, etc.)”). There is also evi-
dence that Ford was in fact confused about the meaning of
“without prejudice,” which the district court reinforced with
its instructions.2 Finally, the Magistrate Judge found that Ford
2
For example, in response to the government’s attempt to dismiss
Ford’s Weed petition, Ford filed a traverse stating that “petitioner hopes
to proceed by this instant Traverse as to those ‘Grounds’ which are action-
FORD v. PLILER 16835
was affirmatively misled by the court’s instructions given the
specific context in which they were given. This court should
not simply close its eyes to this finding, or the fact that a peti-
tioner was actually and understandably misled, to follow a per
se, formalistic rule.
For the foregoing reasons, I respectfully dissent.
able unless a stay or dismissal without prejudice is granted or if in doing
so he would be procedurally barred.” (emphasis added) He then filed a
“return” to the government’s answer, stating that if the district court could
not stay his Weed petition, he requested dismissal without prejudice in
order to exhaust his unexhausted claims in state court “unless, in doing so,
he will be procedurally barred . . . In which case he has no choice but to
proceed . . . .” The court then gave Ford three options, including dismissal
“without prejudice” as the default. When Ford did not respond to the
court’s order regarding the Weed petition, the court dismissed it “without
prejudice.”