Remon Shields v. Tim Virga , 482 F. App'x 275 ( 2012 )

FILED
NOT FOR PUBLICATION SEP 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REMON SHIELDS, No. 09-16574
Petitioner - Appellant, D.C. No. 5:08-cv-00274-JF
v.
MEMORANDUM*
TIM VIRGA, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted July 17, 2012
San Francisco, California
Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.
Remon Shields, a California state prisoner, appeals the dismissal of his
petition for federal habeas corpus relief under 28 U.S.C. § 2254 as untimely under
the one-year statute of limitations period for habeas petitions instituted by the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28
U.S.C. § 2244(d). We affirm the district court’s decision.
We review a district court’s dismissal of habeas corpus for untimeliness de
novo. Noble v. Adams, 676 F.3d 1180, 1181 (9th Cir. 2012). “If the facts
underlying a claim for equitable tolling are undisputed, the question of whether the
statute of limitations should be equitably tolled is also reviewed de novo.” Spitsyn
v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).
To the district court, Shields argued that he was eligible for equitable tolling
based on several periods in which he was deprived access to his legal materials.
We agree with the district court that Shields failed to make the requisite showing
that these periods were extraordinary and proximately caused his untimely federal
petition. See Bryant v. Ariz. Att’y Gen., 499 F.3d 1056, 1061 (9th Cir. 2007);
Stillman v. LaMarque, 319 F.3d 1199, 1202–03 (9th Cir. 2003).
On appeal, Shields requests that we remand his case to the district court and
order an evidentiary hearing on a claim that the untimeliness of his federal petition
was caused by mental disability. We decline to consider Shields’s equitable tolling
argument based on mental disability because he did not raise that issue before the
district court, even if we construe Shields’s pro se petition liberally. See United
States v. Pimentel-Flores, 339 F.3d 959, 967 (9th Cir. 2003) (“Issues not presented
2
to the district court cannot generally be raised for the first time on appeal.”)
(internal citations omitted). Shields’s argument to the district court regarding his
mental outpatient housing, in particular, was not that he was mentally incapable,
but that he was deprived access to his legal files for the period of time that he was
so housed. That he told the district court that he had been housed in a mental
outpatient housing unit for a finite period of time several months prior to the end of
the limitations period did not present to the district court a claim that he was
mentally incapable of filing papers on a timely basis, or that his failure to timely
file papers was proximately caused by his mental condition during that time period.
Nor has Shields made a persuasive argument on appeal. Being on suicide watch
may suggest serious mental distress of some kind, but it does not necessarily mean
or even strongly suggest that Shields was incapable of preparing and filing legal
papers.
Shields’s claim regarding his lack of access to the law library and its clerks
also cannot be construed as a mental disability claim. Cf. Laws v. Lamarque, 351
F.3d 919, 921 (9th Cir. 2003). While access to the library and its resources might
have improved the quality of his habeas petition, his claim, even read liberally, was
not that his “mental illness prevented him from filing a timely habeas petition.” Id.
3
Moreover, Shields’s filings did not give the district court reason to infer the
existence of any mental impairment such that an evidentiary hearing should have
been ordered sua sponte by the district court. See Bills v. Clark, 628 F.3d 1092,
1100–01 (9th Cir. 2010) (stating that, when deciding on a petitioner’s eligibility for
equitable tolling, the district court must examine the record to determine “whether
the petitioner satisfied his burden that he was in fact mentally impaired”). The
papers Shields filed with the district court did not demonstrate the alleged
incapacity. They looked like papers customarily received from pro se prisoners.
AFFIRMED.
4
FILED
Shields v. Virga, No. 09-16574 SEP 05 2012
MOLLY C. DWYER, CLERK
TASHIMA, J., concurring: U.S. COURT OF APPEALS
I concur in the judgment affirming the district court’s judgment that
Shields’s federal habeas petition is untimely.
When considering equitable tolling, a court cannot simply stop the statute of
limitations clock when extraordinary circumstances begin and restart the clock
when those extraordinary circumstances end. A “‘petitioner’ is ‘entitled to
equitable tolling’ only if he shows . . . 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) (emphasis
added)); see also Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (stating
that extraordinary circumstances must have “made it impossible to file a petition
on time”).
Shields alleges that he faced extraordinary circumstances when he: (1) was
mentally incapacitated while in the Mental Outpatient Housing Unit (“MOHU”);
and (2) was unable to do any legal work while in administrative segregation, in the
MOHU, when the library was closed, and before he received the transcript. None
of these alleged deprivations occurred after February 6, 2007 – almost a year
before Shields filed his federal habeas petition. Shields has not shown that these
circumstances prevented a timely federal filing, as he is required to do.
Accordingly, he is not entitled to equitable tolling.
For these reasons, I concur in the judgment affirming the district court’s
dismissal of Shields’ habeas petition.
2
FILED
Shields v. Virga, No. 09-16574 SEP 05 2012
MOLLY C. DWYER, CLERK
MURGUIA, Circuit Judge, dissenting. U.S. COURT OF APPEALS
I respectfully dissent. I would reverse the district court’s dismissal of
Shields’s petition as untimely and remand for an evidentiary hearing to determine
whether Shields is entitled to equitable tolling based on mental incompetence.
I. District court’s dismissal as untimely
In dismissing the petition, the district court failed to recognize that Shields’s
petition could be timely based on the combined effect of both statutory and
equitable tolling, as long as Shields were granted equitable tolling for at least
twenty days. The district court erroneously required Shields to allege eleven
months of equitable tolling when, in fact, Shields would be entitled to ten months
of statutory tolling if he were granted a single day of equitable tolling prior to the
filing of his state petition. Furthermore, Shields needed just nineteen days of
equitable tolling to extend his one-year limitations period from the end of his state
habeas procedures to the filing of his federal petition. See Ramirez v. Yates, 571
F.3d 993, 1000 (9th Cir. 2009) (remanding for factual findings on equitable tolling
where petition could only be timely if petitioner were granted both statutory and
equitable tolling, and where equitable tolling was necessary for petitioner to get
1
benefit of statutory tolling).1
II. Waiver
Issues raised for the first time on appeal concerning the timeliness of a
habeas petition may be considered as long as they are based “on the same set of
operative facts” as a claim made at the district court. Lott v. Mueller, 304 F.3d
918, 925 (9th Cir. 2002). In Lott, the petitioner refashioned what had been a
statutory tolling claim before the district court as an equitable tolling claim on
appeal. Id. at 925. We rejected the argument that the petitioner had waived the
equitable tolling claim because both the claim before the district court and the
claim on appeal relied “on the same set of operative facts.” Id. Likewise,
Shields’s argument on appeal is based on exactly the same set of facts as those
before the district court.
1
Contrary to the concurrence’s assertion, nothing in our case law says that
we cannot “stop” and “restart” the statute-of-limitations clock due to equitable
tolling. Indeed, we have applied equitable tolling in such a manner on numerous
occasions. See, e.g., Ramirez, 571 F.3d at 1001 (“We vacate and remand with
instructions to make the necessary findings of fact to resolve Ramirez’s claims for
equitable tolling for the periods between May 21, 2002 and August 1, 2002; and
February 26, 2003 and July 11, 2003.”). Furthermore, Shields presents a relatively
strong case for equitable tolling precisely because the four periods of time when he
claims he could not prepare his habeas petition occurred prior to the one-year
AEDPA deadline. Had these periods taken place after February 2007, Shields’s
claim would have failed as a matter of law because extraordinary circumstances
cannot equitably toll a limitations period that has already run.
2
Although Shields did not explicitly label his equitable tolling claim before
the district court “equitable tolling for mental incompetence,” Shields’s Opposition
to Respondent’s Motion to Dismiss as Untimely (“Opposition”) is replete with
references to mental incompetence and is most fairly read as a request for equitable
tolling due to Shields’s mental health issues, combined with other obstacles. See
id. at 924 (stating that “the confluence of numerous factors beyond the prisoner’s
control” may constitute “extraordinary circumstances” for purposes of equitable
tolling). In his Opposition, Shields clearly listed the circumstances beyond his
control that he alleged prevented him from filing a timely petition. Shields
explained that he was denied access to his legal property for three periods of time,
including while committed to the “Mental Outpatient Housing Unit” for “Accute
Psychological treatment”and “suicide pervention [sic].” He also requested
equitable tolling for a period when he could not access the law library or obtain the
assistance of the law library clerk. Critically, Shields articulated that his lack of
access to the law library and the law library clerk constituted an extraordinary
circumstance “due to [Shields’s] mental learning impairment / disability and
mental health status,” which he buttressed by stating that he was “diagnosed as
mildly retarded,” had “a reading level [Test of Adult Basic Education] score of
2.5,” and is currently in a mental health program run by the California Department
3
of Corrections. The majority downplays this evidence of mental illness—which it
euphemistically refers to as “distress”—and construes Shields’s arguments in an
overly formalistic way. The majority appears to punish Shields not because he has
changed his arguments on appeal, but because his claims are more artfully
presented now that he is represented by appointed counsel. Without even relying
on the liberal construction owed to a pro se prisoner’s filings, Rand v. Rowland,
154 F.3d 952, 958 (9th Cir. 1998) (en banc), I would conclude that Shields’s
habeas petition clearly alleged that his request for equitable tolling was based on
mental incompetence; specifically, that certain obstacles, such as the denial of
access to his legal files for 95 days, see Lott, 304 F.3d at 925 (holding that, if
uncontroverted, petitioner’s allegation that he was denied access to his legal papers
for 82 days is sufficient to warrant equitable tolling), as well as a law library clerk,
made timely filing impossible for Shields in light of his mental health issues.
The majority disposes of the ample evidence showing that Shields suffers
from mental illness by saying that this “does not necessarily mean” that Shields
was incapable of filing a timely petition.2 But if this evidence, which includes a
determination by the state prison system to place Shields in a mental health
2
Under the majority’s logic, Shields is in a Catch-22. He is too coherent for
equitable tolling, but not articulate enough to avoid waiving his equitable tolling
claim.
4
program, “necessarily” meant that Shields’s mental incapacity prevented him from
filing a timely petition, he would be entitled to a grant of equitable tolling under
the test set forth in Bills v. Clark, 628 F.3d 1092, 1009-1100 (9th Cir. 2010). The
question here, rather, is merely whether Shields should be granted an evidentiary
hearing as to equitable tolling. “[W]e do not require [Shields] to carry a burden of
persuasion at this stage in order to merit further investigation into the merits of his
argument for tolling. Rather, our cases require only that there be ‘circumstances
consistent with petitioner’s petition under which he would be entitled to a finding
of an ‘impediment’ under § 2244(d)(2)(B) or to equitable tolling’ for further
factual development to be required.” Laws v. Lamarque, 351 F.3d 919, 924 (9th
Cir. 2003) (quoting Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000)
(en banc)). All that is required of Shields at this stage is a “good-faith allegation
that would, if true, entitle him to equitable tolling.” Id. at 921. Because Shields
has alleged sufficient facts that would, if true, entitle him to equitable tolling, I
would remand to the district court for an evidentiary hearing to determine whether
any mental incompetence, combined with the denial of access to the law library,
law library clerk, and his legal files warrant equitable tolling.
5