James Edward Smith v. J.M. Ratelle B. Kathleen Blanchard

323 F.3d 813, 2003 Daily Journal DAR 3383, 2003 Cal. Daily Op. Serv. 2634, 2003 U.S. App. LEXIS 5784, 2003 WL 1543250

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 2003
• Docket: 99-55824
• Status: Published

Opinions

Opinion by Judge JAMES R. BROWNING; Dissent by Judge BEEZER.

JAMES R. BROWNING, Circuit Judge.

California state prisoner James E. Smith appeals the dismissal of his habeas corpus petition as barred by the one-year statute of limitations of the Anti Terrorism and Effective Death Penalty Act (AED-PA). We hold that Smith is entitled to equitable tolling because the district court erroneously dismissed his earlier, timely habeas petition without first giving him an opportunity to file an amended petition as an alternative to dismissal. We therefore reverse and remand.

I.

Smith was convicted of first degree burglary and sentenced to 22 years in prison. His conviction was affirmed on direct appeal, and the California Supreme Court denied review on November 2,1994.

On March 7, 1996, Smith filed a pro se habeas corpus petition in federal district court. The petition contained seven claims, only two of which had been presented to the state courts on direct appeal. Shortly after AEDPA was signed into law on April 24, 1996, the district court dismissed this first petition for failure to exhaust state remedies. The court told Smith that he could either submit a new petition after judgment that omitted the unexhausted claim, or exhaust his state remedies and file a new, fully-exhausted petition in federal court. Smith returned to state court to exhaust the claims that the district court had found unexhausted.

Smith returned to federal court on February 4, 1997, by filing a photocopy of his original handwritten habeas petition. The district court properly gave Smith several opportunities to amend his petitions for clarity and to supplement his claims, but denied his request for appointed counsel. The state filed a motion to dismiss, arguing again that Smith had failed to exhaust certain claims. Smith opposed this motion.

On November 3, 1997, the district court adopted the magistrate’s report and recommendation and dismissed Smith’s second petition without prejudice because a claim of juror misconduct remained unexhausted.¹ The court again told Smith that after dismissal he could file a new petition that withdrew the unexhausted claim or return to state court and exhaust that claim. However, AEDPA’s one-year limitations period had expired on August 13, 1997, while the state’s motion to dismiss was pending,² and the district court did not to file a federal habeas petition. See Ford v. Hubbard, 305 F.3d 875, 882 tell Smith that he could withdraw his unex-hausted claim as an alternative to dismissal. The court immediately entered final judgment.

Following the court’s suggestion, Smith returned to state court to exhaust his one unexhausted claim.³ The California Supreme Court denied his petition on April 29, 1998. Smith filed a third, fully-exhausted federal petition on July 17, 1998, reasserting each of his earlier claims. The state again moved to dismiss, this time on the ground that this final petition was barred by the statute of limitations. The district court held that this petition was untimely and dismissed it with prejudice.

The district court granted a certificate of appealability on the question of whether Smith’s petition “related back” to the filing date of his first petition. We granted a motion to expand the COA to include the issue of whether Smith was entitled to equitable tolling,⁴ and we requested supplemental briefing on the effect of Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). We review the district court’s order dismissing the petition de novo. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999).

II.

Under 28 U.S.C. § 2254(b)(1), a habeas petitioner may not obtain relief on a “mixed” petition that contains both exhausted and unexhausted claims. In Rose v. Lundy, 455 U.S. 509, 520-21, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), however, the Supreme Court recognized that a petitioner had several options to avoid a procedural default: first, he could amend the petition to drop the unexhausted claims and then obtain a decision on the merits of his remaining, exhausted claims; second, he could withdraw his petition, return to state court to exhaust his unexhausted claims, and then file a new habeas petition with fully-exhausted claims.

The Lundy opinion “contemplated that the prisoner could return to federal court after the required exhaustion.” Slack v. McDaniel, 529 U.S. 473, 486, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). However, under AEDPA’s new statute of limitations, 28 U.S.C. § 2244(d)(1), a state prisoner generally must file his habeas petition within one year after his state conviction became final. As we explained in Anthony v. Cambra, 236 F.3d 568 (9th Cir.2000), this limitations period may effectively bar a petitioner from exercising his options under Lundy:

Prior to the advent of AEDPA, dismissal without prejudice to the filing of a new, exhausted petition caused no detriment to the petitioner, because there was no time limitation on the filing of a federal habeas petition. AEDPA’s one-year statute of limitations, however, has rendered outright dismissal perilous to some litigants, because petitioners such as Anthony may find themselves time-barred when they attempt to resubmit their claims to the district court.

Id. at 573. See also James v. Pliler, 269 F.3d 1124, 1126 (9th Cir.2001) (“To dismiss a petition for curable deficiencies may, therefore, preclude a petitioner from obtaining federal habeas review altogether, even where the dismissal was without prejudice.”).

A.

The district court was apparently unaware of the hazards posed by AED-PA’s statute of limitations. Smith’s second petition was timely, but contained one unexhausted claim. Operating under the pre-AEDPA interpretation of Lundy, the district court’s order suggested that dismissal was only a minor procedural setback:

Following dismissal, petitioner will have the option of: (1) submitting to this court a new habeas petition that does not contain any unexhausted claims (which would risk forfeiture of these claims under Rule 9(b) of the Rules Governing § 2254 Cases in the United States District Courts); or (2) exhausting his state remedies and then submitting to this court a petition which contains all of the claims raised in the present proceeding.

(Emphasis in original). Because the limitations period had expired before dismissal, however, it was impossible (absent equitable tolling) for Smith to file another timely petition. The district court’s order presented Smith with a Hobson’s choice— if he followed either suggested option, he would face an inevitable procedural default.⁵ Not having been advised of this, Smith dutifully returned to state court to exhaust his sole unexhausted claim. When he returned to federal court with a completely-exhausted petition, he belatedly discovered that all of his claims were now time-barred.

This unfortunate predicament was entirely avoidable. Because the statute of limitations may prevent a petitioner from submitting a new petition under Lundy, we have long held that district courts must allow petitioners to amend their mixed petitions and withdraw their unexhausted claims as an alternative to suffering dismissal. See Anthony, 236 F.3d at 572. Moreover, in light of the severe consequences of a dismissal under AEDPA, the complexity of habeas law, and our preference for decisions on the merits, we have recognized that district courts must take special care to advise pro se habeas petitioners of their right to strike unexhausted claims. See Ford, 305 F.3d at 883-84; James, 269 F.3d at 1126; Tillema v. Long, 253 F.3d 494, 503 (9th Cir.2001).

The district court erred by summarily dismissing Smith’s second habeas petition and entering final judgment without first giving him an informed opportunity to withdraw his one unexhausted claim before dismissal. Although the court told Smith that he could withdraw his unexhausted claim through a new petition after dismissal and final judgment, this option was illusory: because the limitations period had already expired, any new petition would have been untimely. Smith unwittingly faced the same dilemma as the petitioner in James v. Giles, 221 F.3d 1074 (9th Cir.2000):

We have long held that a federal habeas petition has a right to amend a mixed petition to delete unexhausted claims as an alternative to suffering a dismissal. James unquestionably had a right to amend his petition to delete his three unexhausted claims. But he never had an informed opportunity to do so. By dismissing James’ petition without leave to amend at the same time that it explained why it was doing so, the district court failed to provide James with notice of his petition’s deficiencies in time for him to seek leave to amend.

Id. at 1077 (citations omitted). Had Smith been given an accurate explanation of his options — either to withdraw the one unex-hausted claim before dismissal or to forfeit any opportunity for federal habeas review — he could have salvaged his six properly-exhausted claims. See Ford, 305 F.3d at 885-86 (“the district court, when informing a habeas petitioner of his options with respect to a mixed petition, should alert the petitioner to the one-year limitations period of AEDPA and to the fact that a portion of that period has already elapsed.”) (quotations and citation omitted); Anthony, 236 F.3d at 574 (“This court has made clear that district courts must provide habeas litigants with the opportunity to amend their mixed petitions by striking unexhausted claims as an alternative to suffering dismissal.”) (emphasis added). Because the district court did not inform Smith about his opportunity to withdraw his one unexhausted claim as an alternative to dismissal, Smith lost the only opportunity to have his six other claims considered on their merits.

Further, the district court’s dismissal prevented Smith from obtaining the benefit of a related procedure, the withdrawal- and-abeyance procedure. We have held that a “district court must consider the alternative of staying the petition after dismissal of unexhausted claims, in order to permit [petitioner to exhaust those claims and then add them by amendment to his stayed federal petition.” Kelly v. Small, 300 F.3d 1159 (9th Cir.2002), as amended, 315 F.3d 1063, 1070 (9th Cir.2003). See also Anthony, 236 F.3d at 575 (“Our precedent unequivocally authorizes district courts to stay fully exhausted federal petitions pending exhaustion of other claims.”). This withdrawal-and-abeyance procedure “is essentially a variant on the principle that a district court must allow a petitioner to amend a mixed petition to strike unexhausted claims[.]” Hasan v. Galaza, 254 F.3d 1150, 1152 n. 2 (9th Cir.2001). Although this procedure is discretionary, the “exercise of discretion to stay the federal proceeding is particularly appropriate when an outright dismissal will render it unlikely or impossible for the petitioner to return to federal court within the one-year limitation period imposed by [AEDPA].” Kelly, 315 F.3d at 1070.⁶ Indeed, the Second Circuit has held that in such circumstances a stay may be the only appropriate action, Zarvela, 254 F.3d at 382-83, and this Court noted the failure to exercise such discretion “would likely constitute error.” Ford, 305 F.3d at 884. See also Kelly, 315 F.3d at 1070 (“we join the growing consensus in recognizing the clear appropriateness of a stay when valid claims would otherwise be forfeited.”) (quotations and citation omitted). Had the district court applied the withdrawal-and abeyance procedure, it could have considered each of Smith’s seven claims on their merits after complete exhaustion. But because the court failed to consider this procedure, Smith did not have an informed opportunity to withdraw his unexhausted claim and request abeyance.

B.

Equitable tolling is available only when “extraordinary circumstances beyond a prisoner’s control made it impossible to file a petition on time.” Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir.1998) (en banc). However, we have recognized that a district court’s erroneous dismissal of a mixed habeas petition is sufficiently extraordinary to justify equitable tolling. See Ford, 305 F.3d at 889 n. 14 (“The district court’s error in failing properly and fully to inform Ford about his options with respect to the mixed petitions and in misleading him as to the legal effect of a dismissal of his petitions were ‘extraordinary circumstances’ ... that would require equitable tolling of AEDPA’s statute of limitations.”); Tillema, 253 F.3d at 504 (“had the district court followed the law, i.e., Rose v. Lundy, Tillema would have been permitted to proceed with all but one of his claims; because the district court erred, Tillema lost all opportunity for federal review of all of his claims”); see also Corjasso v. Ayers, 278 F.3d 874 (9th Cir.2002) (holding that the district court’s erroneous dismissal of a pro se petition justified equitable tolling).

Smith’s second federal petition was timely. If the district court had allowed Smith to 'withdraw his unexhausted claim as an alternative to dismissal, it could have either considered his six exhausted claims on their merits immediately or held his petition in abeyance and considered all seven claims after exhaustion of the one remaining claim. Because the district court instead summarily dismissed this petition and provided a misleading explanation of Smith’s options to avoid a procedural default, Smith lost the opportunity for federal habeas review — even for the six claims that had been properly exhausted.⁷ Because Smith is entitled to the benefit of equitable tolling, his third habeas petition is timely.

III.

We REVERSE the district court’s dismissal of Smith’s third petition as untimely, and REMAND for further consideration on the merits.

1 . Contrary to the dissent’s assertion that Smith chose to press a mixed second petition with awareness of the consequences, Smith had attempted to exhaust the juror misconduct claim through the following passage in his state habeas petition:

Ground Four: — Challenge the jurors for cause; attorney-client, court procedures. (Not for a "layman”. Myself!)

At the beginning of court’s proceeding, one juror misconduct excused her. (Rt.l) Another misconduct, juror # 1 talks to "bailiff” sotto voice. No objections, then at the end of trial — in polling the jurors, again juror # 1 misconduct — by not been in "cer-tituded, or inconsistent with the conviction.”

(Sic.) In his opposition to the state’s motion to dismiss, Smith explained that he had tried to exhaust his juror misconduct claim through this language and pleaded for the court’s understanding. The district court held that Smith had not fairly presented this claim because the language quoted above was indecipherable. In other briefs and affidavits, Smith explained that his difficulty in presenting his case was attributable to his lack of education and illiteracy.

2 . Under AEDPA's one-year grace period, Smith had until April 24, 1997 (9th Cir.2002); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.2001). Smith was entitled to statutory tolling from July 5, 1996, the date he mailed his state habeas petition, until October 24, 1996, thirty days after the California Supreme Court denied his petition. See Allen v. Lewis, 295 F.3d 1046 (9th Cir.2002) (en banc); Hui-zar v. Carey, 273 F.3d 1220, 1222 (9th Cir.2001).

3 . Smith mailed his final state habeas petition on December 17, 1997. For reasons that are not clear from the record, the state court did not accept that copy for filing. Smith then mailed another copy on January 5, 1998, which was filed on January 7, 1998.

4 . The state argues that Smith waived his equitable tolling argument by failing to raise it below. Even if Smith did not raise the issue below, the state did not object to the court’s expanding the certificate of appealability. Now that the equitable tolling issue has been fully briefed on appeal, we may not review the merits of the COA expansion ruling. See Gatlin v. Madding, 189 F.3d 882, 887 (9th Cir.1999).

5 . Because the limitations period had already expired, a fully-exhausted petition would have been untimely even if Smith had filed it the same day as the dismissal. Consequently, the dismissal barred Smith from amending his . petition to withdraw the unexhausted claims. See Anthony, 236 F.3d at 572-74 (noting that the petitioner’s new petition that withdrew the unexhausted claim was untimely because it was filed shortly after dismissal and outside of the limitations period, but affirming the district court's equitable power to correct its error by accepting the new petition nunc pro tunc).

6 . If the district court permits the withdrawal- and-abeyance procedure, it may prevent undue delays by conditioning the stay on prompt exhaustion of the remaining claims in state court. See Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.2001).

7 . Fail v. Hubbard, 315 F.3d 1059 (9th Cir.2002), is distinguishable, despite the dissent’s assertion that it represents a "similar situation.” Fail decided whether AEDPA's one-year statute of limitations may be "equitable tolled during the period between the date of the filing of an entirely unexhausted petition and the date of its dismissal by the district court without prejudice after the statute of limitations has run." Id. at 1060. In this case. Smith attempted to exhaust all seven of his claims before filing his second petition, as explained in footnote 1, infra, and, at the very least, exhausted six out of seven of his claims pressed in his second petition. Because the Fail case concerned a wholly unexhausted petition purportedly made untimely due to the court's delay, it did not weigh all of the considerations attending an erroneous dismissal of a mixed petition. The fact of a mixed petition requires considering the body of law concerning dismissal of mixed petitions, and reflects the diligence of the petitioner. Fail is factually and legally distinct.