Johnny Jones, III v. Timothy Filson ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED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
    
    
                                              2                                    16-16528
    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
    
    
                                               3                                    16-16528
    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
    
    
                                               4                                     16-16528
    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.
    
    
    
    
                                              5                                    16-16528