Jesse Bobadilla v. C. Gipson , 679 F. App'x 600 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 8 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSE BOBADILLA, No. 14-56461
Petitioner-Appellant, D.C. No.
2:13-cv-08456-CJC-JEM
v.
C. GIPSON, C.S.P., MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted July 7, 2016
Pasadena, California
Before: VANASKIE,** MURGUIA, and WATFORD, Circuit Judges.
Jesse Bobadilla appeals from the district court’s order dismissing his federal
habeas petition as untimely. This Court granted Bobadilla’s request for a
certificate of appealability on the following question: “whether the district court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Thomas I. Vanaskie, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
properly determined that the petition was barred by the statute of limitations,
including whether appellant is entitled to equitable tolling.” ER 1. We have
jurisdiction under 28 U.S.C. § 1291 and § 2253, and we affirm the judgment of the
district court.
Bobadilla was convicted by a jury of murder and other crimes, and
sentenced to 50 years to life in prison on April 4, 2008. The California Supreme
Court denied Bobadilla’s counseled petition for review on November 2, 2011.
Counsel, however, did not inform Bobadilla of the California Supreme Court
decision until more than a year later, on November 17, 2012, when counsel
returned Bobadilla’s records to him. In his letter of November 17, 2012, counsel
advised Bobadilla that the deadline to file a federal habeas petition was January 31,
2013.
It is undisputed that the statute of limitations for Bobadilla to petition for
habeas corpus relief pursuant to 28 U.S.C. § 2254 expired on January 31, 2013,
one year after the deadline for petitioning the Supreme Court of the United States
for a writ of certiorari had expired. See Bowen v. Roe, 188 F.3d 1157, 1158-59
(9th Cir. 1999). It is also undisputed that Bobadilla did not file a habeas corpus
petition in federal court until November 7, 2013. Bobadilla claims equitable tolling
of the running of the limitations period by reason of his counsel’s failure to inform
him of the denial of his petition for review by the California Supreme Court until
2
November 17, 2012, some 54 weeks after the California Supreme Court issued its
ruling.
To be entitled to equitable tolling of the one-year limitations period imposed
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
habeas petitioner must show “‘(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, 560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). While we find that the inexcusable delay
by counsel to inform Bobadilla of the California Supreme Court ruling constitutes
an extraordinary circumstance, we conclude that Bobadilla did not act with the
requisite diligence to warrant equitable tolling.
We note that the law of this Court concerning the diligence required of a
federal habeas petitioner is somewhat in tension. As this Court observed in Luna
v. Kernan, 784 F.3d 640 (9th Cir. 2015), we adopted a “stop clock” approach for
equitable tolling claims in Gibbs v. Legrand, 767 F.3d 879 (9th Cir. 2014). Under
a pure stop-clock approach, “[t]here is no need to show diligence after the
extraordinary circumstances have ended.” Luna, 784 F.3d at 651. However, in
Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003), we required a petitioner to show
diligence through the time of filing, even after the extraordinary circumstance
dissolved. And more recently, we observed that “[o]rdinarily, a petitioner must act
3
with reasonable diligence both before and after receiving delayed notice that the
state denied his habeas petition.” Fue v. Biter, ___ F.3d ___, 2016 WL 6803045,
at *4 (9th Cir., Nov. 17, 2016) (en banc) (emphasis added; citation omitted).
Thus, “under current circuit law, we must apply both the diligence-through-filing
requirement imposed by Spitsyn and the stop-clock approach adopted in Gibbs.”
Luna, 784 F.3d at 651–52.
Here, we conclude that after learning of his counsel’s omission, Bobadilla
did not act with reasonable diligence through filing. Seventy-five days before
AEDPA’s limitations period was set to expire, Bobadilla’s counsel informed
Bobadilla of his omission and alerted Bobadilla that the deadline to file a federal
habeas petition was January 31, 2013. Despite receiving this information,
Bobadilla took no action prior to November 7, 2013.1 When Bobadilla did
eventually file his federal habeas petition, the petition amounted to word-for-word
recitations of the “Argument” headings from the table of contents of his petition
for review to the Supreme Court of California, which was in Bobadilla’s
possession since September 26, 2011. This delay of more than eleven months after
1
On February 15, 2013, after the statute of limitations to seek federal habeas relief
had expired, Bobadilla sent by mail to the Los Angeles Superior Court, a state
habeas petition. Bobadilla filed another petition in state court on October 29, 2013,
which was denied on November 21, 2013. These state court petitions, however, do
not indicate that Bobadilla was pursuing his federal rights diligently. See Holland,
560 U.S. at 649.
4
receiving his case file and notice of his federal habeas deadline demonstrates that
Bobadilla did not act with the requisite diligence through the time of filing his
federal habeas petition. See Doe v. Busby, 661 F.3d 1001, 1012–13 (9th Cir. 2011)
(“The purpose of requiring a habeas petitioner to show diligence is to verify that it
was the extraordinary circumstance, as opposed to some act of the petitioner’s own
doing, which caused the failure to timely file.”). Accordingly, we conclude that
Bobadilla is not entitled to equitable tolling.
AFFIRMED.
5
FILED
Bobadilla v. Gipson, No. 14-56461
MAR 8 2017
MURGUIA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority that there is tension in our equitable tolling
jurisprudence. However, I respectfully dissent from the majority’s holding because
Bobadilla’s petition is timely under the more practical “stop-clock” rule that this
Court, sitting en banc, adopted in the immigration context, Socop–Gonzalez v. INS,
272 F.3d 1176 (9th Cir. 2001) (en banc), and has applied in the habeas context,
Gibbs v. Legrand, 767 F.3d 879 (9th Cir. 2014).
Under the stop-clock rule, once the impediment preventing the petitioner
from filing his petition is removed, the Court must only inquire “whether [the
petitioner] filed within the limitations period after tolling is taken into account.”
Socop–Gonzalez, 272 F.3d at 1195–96 (“[T]he event that ‘tolls’ the statute simply
stops the clock until the occurrence of a later event that permits the statute to
resume running.”). The stop-clock rule does not require a petitioner to show
diligence through the time of filing. Id. As this Court has previously noted,
requiring a petitioner to demonstrate diligence through the time of filing “arguably
usurps congressional authority . . . by substituting [the court’s] own subjective
view of how much time a plaintiff reasonably needed to file suit.” Id.; see also Lott
v. Mueller, 304 F.3d 918, 926–27 (9th Cir. 2002) (McKeown, J., concurring) (“A
year should be 365 days not just for those fortunate enough to be free of any
obstacles to filing, but for all petitioners—particularly for those who find their time
to prepare a petition shrinking because of impediments beyond their control.”).
The majority is correct in pointing out that a diligence-through-filing
requirement also seems to find some support in our case law. See Spitsyn v. Moore,
345 F.3d 796, 802 (9th Cir. 2003).1 As the majority notes, in light of this tension,
Luna v. Kernan advises this Court to “apply both the diligence-through-filing
requirement imposed by Spitsyn and the stop-clock approach adopted in Gibbs.”
784 F.3d 640, 651–52 (9th Cir. 2015). However, I take issue with Luna’s attempt
to reconcile a diligence-through-filing requirement and the stop-clock approach.
Under the stop-clock rule, diligence during the post-impediment period does not
need to be shown. If, as Luna asserts, another line of cases holds that diligence
must be shown, then the two lines of cases are irreconcilable. In attempting to
1
Spitsyn only addresses the diligence prong of equitable tolling in dicta. See Spitsyn, 345 F.3d at
802. The only issue before the Court was whether the misconduct of Spitsyn’s attorney was
sufficiently egregious to satisfy the “extraordinary circumstance” prong of equitable tolling. Id.
at 798. The Court concluded that the attorney’s misconduct constituted an extraordinary
circumstance and remanded the case to the district court to determine “whether Spitsyn exercised
reasonable diligence in pursuing the matter, under the circumstances he faced.” Id. at 802(stating that a petitioner is not entitled to equitable tolling if “the person seeking equitable tolling
has not exercised reasonable diligence in attempting to file, after the extraordinary
circumstances began” (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (emphasis
added))). While the Court simply noted in its concluding paragraph that “the record [did] not
indicate why Spitsyn did not file his petition until September, when [his counsel] returned his
files in April,” the Court did not indicate that Spitsyn’s lack of diligence during this time period
would necessarily preclude his entitlement to equitable tolling.
“apply both” approaches, which directly contradict each other, the diligence-
through-filing rule necessarily subsumes the stop-clock rule. Because the stop-
clock rule is a definitive test and is consistent with “the policy objectives of the
statute of limitations,” I would apply this rule to assess the timeliness of
Bobadilla’s petition. See Socop–Gonzalez, 272 F.3d at 1195.
Bobadilla has demonstrated (1) “that some extraordinary circumstance stood
in his way and prevented timely filing,” and (2) “that he has been pursuing his
rights diligently.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation
marks omitted). Bobadilla’s lawyer abandoned him by waiting until November 17,
2012—53 weeks after the California Supreme Court’s denial of his petition for
review—to notify Bobadilla of the denial and to send him the record of his case.
We have previously explained the importance of providing habeas petitioners with
access to their files. See, e.g., Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009)
(“[I]t is unrealistic to expect a habeas petitioner to prepare and file a meaningful
petition on his own within the limitations period without access to his legal file.”
(internal quotation marks omitted)); Spitsyn, 345 F.3d at 801 (“But without the file,
which [the lawyer] still possessed, it seems unrealistic to expect [the prisoner] to
prepare and file a meaningful petition on his own within the limitations period.”).
Bobadilla’s lawyer’s conduct in this case constituted an extraordinary circumstance
that prevented Bobadilla from filing his petition on time.
Bobadilla also did not fail to exercise reasonable diligence under the
circumstances in this case. Although Bobadilla did not independently inquire about
the status of his petition with the California Supreme Court before November 17,
2012, he was represented by counsel and a reasonable person would rely on
counsel to inform him of the state court’s decision. Further, a reasonable person
would not anticipate that the California Supreme Court would deny the petition for
review as quickly as it did. See Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir.
2001) (stating without reservation that 21 months is “not an unusually long time
[for a prisoner] to wait for a court’s decision”). Accordingly, Bobadilla is entitled
to equitable tolling from the date the California Supreme Court’s denial of his
petition for review became final through November 17, 2012. Because Bobadilla
filed his habeas petition on November 7, 2013, within the one-year limitations
period, his petition is timely under the stop-clock rule.