Peter Munoz, Jr. v. Gregory Smith , 557 F. App'x 648 ( 2013 )

FILED
UNITED STATES COURT OF APPEALS SEP 18 2013
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
PETER J. MUNOZ, Jr., No. 11-17904
Petitioner - Appellant, D.C. No. 3:11-cv-00197-LRH-
RAM
v. District of Nevada,
Reno
GREGORY SMITH, Warden and
NEVADA ATTORNEY GENERAL,
ORDER
Respondents - Appellees.
Before: KOZINSKI, Chief Judge, and O’SCANNLAIN and N.R. SMITH, Circuit
Judges.
The memorandum disposition filed in this case on April 17, 2013 is
withdrawn and replaced by the memorandum disposition filed concurrently with
this Order.
Appellant’s petition for rehearing and rehearing en banc filed on May 1,
2013 is DENIED as moot. Subsequent petitions for rehearing or rehearing en banc
respecting the new memorandum disposition may be filed in accordance with Fed.
R. App. P. 35.
FILED
NOT FOR PUBLICATION SEP 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER J. MUNOZ, Jr., No. 11-17904
Petitioner - Appellant, D.C. No. 3:11-cv-00197-LRH-
RAM
v.
GREGORY SMITH, Warden and MEMORANDUM*
NEVADA ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted April 15, 2013**
San Francisco, California
Before: KOZINSKI, Chief Judge, and O’SCANNLAIN and N.R. SMITH, Circuit
Judges.
“The dismissal of a petition for writ of habeas corpus as time-barred is
reviewed de novo.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). While
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
“findings of fact made by the district court are to be reviewed for clear error,”
when, as here, “the facts underlying [the] claim for equitable tolling are
undisputed, the question of whether the statute of limitations should be equitably
tolled is also reviewed de novo.” Id. Further, a “decision by the district court to
decline to order an evidentiary hearing is reviewed for abuse of discretion.” Roy v.
Lampert, 465 F.3d 964, 968 (9th Cir. 2006).
A habeas petitioner is entitled to equitable tolling of AEDPA’s one-year
statute of limitations if he shows: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstances stood in his way and
prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010)
(internal quotation marks omitted). “The diligence required for equitable tolling
purposes is reasonable diligence, not maximum feasible diligence.” Id. at 2565.
(internal citations omitted). Further, the circumstances must be “beyond a
prisoner’s control” and actually cause the untimely filing, i.e., “make it impossible
to file a petition on time.” Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012).
Additionally, “[a] habeas petitioner . . . should receive an evidentiary
hearing when he makes ‘a good-faith allegation that would, if true, entitle him to
equitable tolling.’” Roy, 465 F.3d at 969 (quoting Laws v. Lamarque, 351 F.3d
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919, 921 (9th Cir. 2003)). In determining whether a pro se petitioner’s allegations
warrant an evidentiary hearing, we liberally construe the allegations. Id. at 970.
Munoz’s allegations, if true, support a finding that he was diligent in
pursuing his rights. According to his allegations, he repeatedly attempted to contact
his attorney to inquire about his case during the time that he was ignorant that his
state proceeding was over. See Porter v. Ollison, 620 F.3d 952, 961 (9th Cir.
2010). He also claims he made repeated attempts to obtain the materials he needed
to file his federal petition from the prison library. Accordingly, Munoz may have
been diligent in pursuing his federal petition after learning the state proceeding had
ended. It cannot be “conclusively established” that Munoz was not diligent. See id.
at 954.
Next, Munoz claims that he faced at least one extraordinary circumstance
that could have caused his untimely filing: an unresponsive and misleading
attorney, an inability to access his case files, and limited access to the prison law
library. See e.g., Holland, 130 S. Ct. at 2563 (attorney misconduct amounting to
more than negligence); Ramirez v. Yates, 571 F.3d 993, 997–98 (9th Cir. 2009) (no
access to file); Roy, 465 F.3d at 973–75 (no access to the law library);
Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (same). On
remand, the district court should determine whether these impediments constituted
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extraordinary circumstances and support the conclusion that Munoz’s untimely
filing was caused thereby. See Porter, 620 F.3d at 961–62.
For these reasons, the district court’s decision not to hold an evidentiary
hearing, notwithstanding these allegations, constitutes an abuse of discretion.
It is also worth noting that in dismissing Munoz’s petition, the district court
apparently relied on the long-standing rule that a petitioner has no constitutional
right to effective assistance of state post-conviction counsel. See Coleman v.
Thompson, 501 U.S. 722, 756-57 (1991). This was error under Holland, because, if
Munoz’s allegations about his repeated, ignored attempts to contact his attorney are
true, they demonstrate both diligence and an extraordinary circumstance—whether
or not there was a right to counsel is irrelevant. See Holland 130 S. Ct. at 2564-65.
Thus, the district court erred insomuch as Coleman informed its conclusion.
Ultimately, determining the propriety of equitable tolling requires a “fact-
specific inquiry.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). While the
existing record suggests that Munoz was diligent and that extraordinary
circumstances caused his petition to be untimely, it “does not clearly answer that
question.” Id. at 802; see also Porter, 620 F.3d at 960 (“Construing Porter’s pro se
habeas petition liberally, and on the facts supported by the submission presently
before the court, however, it cannot be conclusively determined that Porter is not
4
entitled to equitable tolling.”). Remand is appropriate, therefore, “because the
district court is in a better position to develop the facts and assess their legal
significance in the first instance.” Whalem/Hunt, 233 F.3d at 1148. On remand, the
district court should hold a hearing and determine whether: (1) Munoz diligently
pursued his federal petition despite his alleged setbacks, and (2) whether the
alleged extraordinary circumstances “caused the untimeliness of his filing and
made a timely filing impossible.” Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir.
2009).
REVERSED and REMANDED.
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