Opinion
No. C 99-03098 WHA
December 10, 2003
JUDGMENT
For the reasons stated in the Court's order dismissing the instant habeas petition as untimely, JUDGMENT IS HEREBY ENTERED in favor of respondent and against petitioner. The Clerk SHALL CLOSE THE FILE.
IT IS SO ORDERED.
ORDER DISMISSING PETITION AS UNTIMELY STATEMENT
This habeas case is back before the Court after remand from the Ninth Circuit. The issue is whether the instant petition for writ of habeas corpus is timely. On October 12, 1999, the petition was dismissed as untimely. The Ninth Circuit vacated the dismissal and remanded for reconsideration in light of intervening appellate authority. This order finds that the petition remains untimely. For this reason, federal habeas relief is not warranted and the petition is DISMISSED.
In its remand order, the Ninth Circuit specifically noted that this Court had not had the benefit of its decisions in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), Smith v. Ratelle, 323 F.3d 813 (9th Cir. 2003), Ford v. Hubbard, 330 F.3d 1086 (9th Cir. 2003), and Guillory v. Roe, 329 F.3d 1015 (9th Cir. 2003).
ANALYSIS
The first step in this remand is to determine which of petitioner's habeas corpus petitions is the focus of this analysis. By all accounts, petitioner has filed five federal habeas corpus petitions. The following sets forth the relevant procedural history.On September 18, 1991, petitioner filed his first petition in case no. 91-3142 BAC. Just over three months later on December 30, 1991, petitioner filed another petition in case no. 91-4541 BAG. Those two petitions were consolidated and dismissed on June 29, 1994, for failure to exhaust state remedies. On August 13, 1996, petitioner filed his third petition in case no. 96-2889 CW. Like the two petitions before it, that petition was dismissed for failure to exhaust state remedies on October 7, 1997. Judgment was thereafter entered on January 16, 1998, following the court's denial of petitioner's motion for a stay of his exhausted claims. Three months later, petitioner filed another petition in case no. 98-1671 CW. This petition was dismissed with leave to amend. Petitioner was instructed to present his claims in a more organized fashion and with proof of exhaustion. When the amended petition failed to comply with the court's instructions, it was dismissed October 13, 1998. On June 28, 1999, petitioner filed the instant petition (his fifth) in case no. 99-3098 WHA. This Court dismissed the petition as untimely on October 12, 1999.
Against this backdrop, petitioner does not argue (nor could he) that the instant petition (the "1999 petition") was timely in fact. The 1999 petition was filed nearly two years after the expiration of the applicable one-year statute of limitations, which began to run in 1996. Instead, petitioner looks to the petition he filed in case no. 96-2889 CW (the "1996 petition") to breathe new life into this case. The 1996 petition was erroneously dismissed, or so petitioner contends. Relying on recent authority from the Ninth Circuit, petitioner argues that the erroneous dismissal now warrants the relation back of his 1999 petition to his 1996 petition under Rule 15 and an equitable tolling of the statute-of-limitations period.
Petitioner sets forth three reasons why his 1996 petition should not have been thrown out. First, he argues the district court failed to consider his request for a stay while he returned to state court to exhaust some of his then-unexhausted federal claims. Second, petitioner asserts that the district court failed to advise him that his new petition would be time-barred when he returned to federal court after exhausting his claims in state court. Third, petitioner claims the district court failed to advise him that he could withdraw the unexhausted claims as an alternative to dismissal and proceed solely on his exhausted claims.
This order finds that petitioner's second argument has merit. That, however, does not end the inquiry. Petitioner must show that he was diligent after the dismissal such that the equities in this case balance in his favor. Petitioner has not met his burden and, thus, is not entitled to relief.
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In Ford v. Hubbard, 330 F.3d 1086 (9th Cir. 2003), the district court dismissed a "mixed" pro se habeas petition on the erroneous ground that it did not have the discretion to stay a mixed petition while petitioner returned to state court to exhaust his unexhausted claims. Id. at 1097-98. At that time, the court also erroneously advised the petitioner that he could file a new federal habeas petition after exhaustion, even though the statute of limitations had already run during the pendency of the petitioner's first federal petition. Id. at 1100. The Ninth Circuit reversed. It held that a habeas petitioner who files a mixed petition that is improperly dismissed by the district court, and who then, on the district court's erroneous advice returns to state court to exhaust his unexhausted claims and subsequently re-files a second petition "without reasonable delay" is entitled to relief. Id. at 1102. Under such circumstances, the petitioner may employ the amendment procedures of Rule 15(c) to have the second petition "relate back to and preserve the filing date of the improperly dismissed initial petition." Ibid.
Applied here, it appears that the district court failed to advise petitioner that he would be time-barred upon his return to federal court after exhausting the unexhausted claims of his 1996 petition in state court. The dismissal order dated October 7, 1997, gave petitioner a choice: he could dismiss the entire petition and go back to state court to exhaust his claims, or he could seek dismissal only of the unexhausted claims and pursue the exhausted ones to conclusion. The court told petitioner that the latter course might permanently foreclose his ability to reiterate the dismissed unexhausted claims. Petitioner was given 30 days to decide how to proceed.
On October 14, 1997, however, respondent wrote to the court, warning that its instructions to petitioner "may be incomplete, or possibly misleading" in that "if petitioner takes a dismissal, even without prejudice, we believe he will be time-barred under 28 U.S.C. § 2244 when he attempts to file a new federal petition after exhausting state remedies." Thereafter, petitioner requested that the court hold his petition in abeyance pending exhaustion of his unexhausted claims, or in the alternative, that his petition be dismissed altogether. On January 13, 1998, petitioner's request for a stay was denied and his petition dismissed.
In light of Ford, this order must find that the information conveyed to petitioner was incomplete in that it failed to advise petitioner that a subsequently filed petition would be time-barred upon exhaustion of state remedies. In the face of such advice, petitioner may have abandoned his 1996 petition in favor of the illusory option of filing a new petition upon exhaustion.
Respondent disagrees, claiming that there was no error where respondent's letter of October 14, 1997, put petitioner on notice of the potential statute-of-limitations problem. Respondent, however, points to no authority (and this Court has found none) to support a finding that a warning from a party opponent, rather than the court, is sufficient under Ford. Indeed, the duty appears to fall squarely on the court. See Kelly v. Small, 315 F.3d 1063, 1071 (noting under Ford that "the district court must inform the petitioner of the status under the statute of limitations of any claims to be dismissed purportedly `without prejudice'").
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The next question is whether, notwithstanding the court's error, petitioner should be allowed to proceed on the record presented. It all boils down to whether petitioner was diligent in seeking to exhaust the claims he presented in his 1996 petition after its dismissal. See Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir. 2003) (noting that petitioner must demonstrate diligence in exhausting claims and stating that "the relevant measure of diligence is how quickly a petitioner sought to exhaust the claims dismissed as unexhausted, and how quickly he returned to federal court after doing so"). A habeas petitioner seeking equitable tolling bears the burden of showing entitlement to it. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). Equitable tolling is warranted only where external forces, rather than petitioner's lack of diligence, account for the failure to file a timely federal habeas petition. See, e.g., Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 2002); Fail v. Hubbard, 315 F.3d 1059, 1061-62 (9th Cir. 2002). This order holds that the equities do not balance in petitioner's favor.
On November 26, 2003, petitioner moved to file a late reply brief, which was due November 20, 2003. As petitioner has shown good cause, the motion is GRANTED.
Here, merely three months after his 1996 petition was dismissed, petitioner filed a fourth federal petition for writ of habeas corpus in case no. 98-1671 CW (the "1998 petition"). He did so apparently without taking the appropriate steps to exhaust the claims that were unexhausted in his 1996 petition. It is not as if petitioner was unaware of the exhaustion requirement. Three prior federal petitions had been dismissed for failure to exhaust. Moreover, the record shows that prior to the formal dismissal of his 1996 petition, the district court went to great lengths to educate petitioner as to how to accomplish the exhaustion required. Petitioner nevertheless returned to federal court, without cleaning up his earlier petition and adding additional unexhausted claims to his new petition. This does not warrant equitable relief. See, e.g., Fail, 315 F.3d at 1062 ("By continuing to press his petition of entirely unexhausted claims after the district court informed that he could only bring claims first brought in state court, [petitioner] was the cause of the delay that ultimately made his second petition untimely").
In its order of October 7, 1997, the district court instructed petitioner that:
To avoid the need to dismiss any federal petition Petitioner may bring in the future, Petitioner is advised to present to the California Supreme Court each claim he desires to have this Court consider. Thereafter, if Petitioner chooses to file a third federal petition, he should confine that petition to only those issues he has presented to the California Supreme Court for only those issues will have been exhausted. . . . If Petitioner continues to file federal petitions that include issues he has not presented to the California Supreme Court, those federal petitions will be dismissed for failure to exhaust state remedies.
(Italics in original).
Why equitable relief is not warranted becomes even more evident upon review of petitioner's conduct in prosecuting his 1998 petition. There, faced with what appeared to be another petition with unexhausted claims, the district court dismissed the petition but gave petitioner the opportunity to amend and delete his unexhausted claims or show that they were in fact exhausted. The amended petition ignored the court's order. What is worse, the court apparently caught petitioner attempting to present manufactured proof of exhaustion that had not really occurred. This order finds that such conduct does not warrant the equitable tolling of the applicable statute-of-limitations period. Or at least, petitioner has not shown that he acted diligently after the dismissal of his 1996 petition.
CONCLUSION
For the reasons stated, the instant petition is DISMISSED as untimely. The Clerk SHALL CLOSE THE FILE.
IT IS SO ORDERED.