Michael Young v. Raybon Johnson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL CLIFFORD YOUNG, No. 18-56261
Petitioner-Appellant, D.C. No.
2:17-cv-08995-MWF-JDE
v.
RAYBON JOHNSON, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted December 10, 2020**
Pasadena, California
Before: GOULD and R. NELSON, Circuit Judges, and COGAN,*** District Judge.
Michael Young appeals the district court’s judgment denying his habeas
corpus petition as untimely under the one-year time limit in the Antiterrorism and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244. The district
court concluded that although Young was entitled to eleven days of statutory
tolling for the period of time during which his state habeas corpus petition was
pending in the Superior Court of California, he was not entitled to equitable tolling
for the approximately six-month period during which he lacked knowledge of the
Superior Court’s decision. We have jurisdiction pursuant to 28 U.S.C. § 2253 and
we affirm.
“We review de novo the dismissal of a federal habeas petition as untimely,
including ‘whether the statute of limitations should be equitably tolled.’” Smith v.
Davis, 953 F.3d 582, 587 (9th Cir. 2020) (en banc) (quoting Fue v. Biter, 842 F.3d
650, 653 (9th Cir. 2016)). Findings of fact made by the district court are reviewed
for clear error. See Stancle v. Clay, 692 F.3d 948, 953 (9th Cir. 2012).
AEDPA’s statutory limitations period may be tolled for equitable reasons.
Holland v. Florida, 560 U.S. 631, 645 (2010). “Generally, a litigant seeking
equitable tolling bears the burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). To meet the first
element the petitioner “must show that he has been reasonably diligent in pursuing
his rights not only while an impediment to filing caused by an extraordinary
circumstance existed, but before and after as well, up to the time of filing his claim
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in federal court.” Smith, 953 F.3d at 598-99. The second element is met “only
when an extraordinary circumstance prevented a petitioner acting with reasonable
diligence from making a timely filing.” Id. at 600. Such a circumstance must be
“both extraordinary and beyond [the petitioner’s] control.” Menominee Indian
Tribe of Wis. v. United States, 136 S. Ct. 750, 756 (2016).
Young claimed that he was entitled to equitable tolling because he did not
receive notice that the Superior Court denied his state habeas petition just eleven
days after the petition was filed. A petitioner’s “lack of knowledge that the state
courts have reached a final resolution of his case” can constitute an extraordinary
circumstance for purposes of equitable tolling if the petitioner has “acted diligently
to obtain notice” of the state court’s decision. Ramirez v. Yates, 571 F.3d 993,
997-98 (9th Cir. 2009). Young argued that his request for prison mail logs
demonstrated diligence. He requested and reviewed the prison mail logs about
three months after he filed his state habeas petition to confirm that the prison did
not receive notice of the state court’s decision. Young never contacted the
Superior Court to inquire about the status of his petition. After checking the prison
mail logs, Young waited another three months before filing his federal habeas
corpus petition.
On this record, Young has not shown that he acted with sufficient diligence
to obtain notice of the state court’s decision. “The California Rules of Court
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require the Superior Court to render a decision on a habeas petition within sixty
days and provide a process for a petitioner to request a ruling if his petition is not
resolved within that time.” Fue, 842 F.3d at 654. The Superior Court thus “invites
petitioners to follow up on their habeas petitions.” Id. Young was aware that the
Superior Court had a timeline by which it must rule on his petition, but he did not
contact the Superior Court even when he believed that time had expired. By
contrast, petitioners who have been found to be diligent under similar
circumstances contacted the state court to check the status of their petitions at least
once. See Passalacqua v. McDonald, 650 F. App’x 374, 375 (9th Cir. 2016); Fue,
842 F.3d at 654-56; Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir. 2001).
Young’s review of the prison mail logs could only confirm that the prison did not
receive mail containing notice of the state court’s decision, and alone did not
satisfy the diligence requirement.
Further, Young did not demonstrate diligence in preparing his state and
federal habeas petitions throughout the limitations period. “[I]n every instance
reasonable diligence seemingly requires the petitioner to work on his petition with
some regularity—as permitted by his circumstances—until he files it in the district
court.” Smith, 953 F.3d at 601. Young’s conviction became final on October 18,
2016, ninety days after the Supreme Court of California denied his Petition for
Review on July 20, 2016. See Harris v. Carter, 515 F.3d 1051, 1053 n.1 (9th Cir.
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2008). Young waited another seven months before filing his state habeas petition,
and an additional six months passed before he filed his federal habeas petition.
Young did not describe any efforts to prepare either petition during these periods.
Nor did Young establish that the extraordinary circumstance “stood in his
way and prevented timely filing.” See Smith, 953 F.3d at 590. Young ultimately
filed his federal habeas petition six months after filing his state habeas petition
even though, at that time, he still did not know that his state habeas petition had
been denied months earlier. Young did not explain why he was able to file his
federal habeas petition at this time, despite his continued lack of notice, but could
not have timely filed it a few weeks earlier. Accordingly, Young did not establish
that his lack of notice of the state court’s decision prevented the timely filing of his
federal habeas petition.
AFFIRMED.
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