Jimmy Moody v. Debra Dexter

Ninth Circuit

Jimmy Moody v. Debra Dexter

544 F. App'x 700

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 1, 2013

Docket09-56914

StatusUnpublished

This text of 544 F. App'x 700 (Jimmy Moody v. Debra Dexter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jimmy Moody v. Debra Dexter, 544 F. App'x 700 (9th Cir. 2013).

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Opinion

MEMORANDUM *

California state prisoner Jimmy Nathan Moody appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely. We have jurisdiction under 28 U.S.C. § 2253 and 28 U.S.C. § 1291. We vacate the district court’s or *701 der and remand for an evidentiary hearing.

A petitioner is entitled to equitable tolling if he can demonstrate that he has diligently pursued his rights and that an extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 681, 180 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010). Equitable tolling is a highly fact-intensive inquiry, and “the district court is in a better position to develop the facts and assess their legal significance.” Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc).

The Supreme Court has also recognized that a credible showing of actual innocence may allow a prisoner to pursue his constitutional claims on the merits notwithstanding the existence of a procedural bar to relief. McQuiggin v. Perkins, — U.S. —, 133 S.Ct. 1924, 1932, 185 L.Ed.2d 1019 (2013). To prevail under this standard, the petitioner must show that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

On the basis of the existing record, we are unable to determine whether Moody has demonstrated diligence in pursuing his rights, or sufficiently shown actual innocence to access the distinct “fundamental miscarriage of justice” exception. Accordingly, we cannot tell whether Moody is entitled to equitable tolling or, alternatively, whether Moody has established a freestanding actual innocence claim. Because “it cannot be conclusively determined that [Moody] is not entitled to equitable tolling,” Porter v. Ollison, 620 F.3d 952, 960 (9th Cir.2010), “we believe the best course is to remand to the district court for appropriate development of the record.” Whalem/Hunt, 233 F.3d at 1148.

Accordingly, we VACATE the district court’s order dismissing the petition as untimely and REMAND for an evidentiary hearing.

VACATED AND REMANDED. Each party shall bear its own costs on appeal.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM *

California state prisoner Jimmy Nathan Moody appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely. We have jurisdiction under 28 U.S.C. § 2253 and 28 U.S.C. § 1291. We vacate the district court’s or *701 der and remand for an evidentiary hearing.

A petitioner is entitled to equitable tolling if he can demonstrate that he has diligently pursued his rights and that an extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 681, 180 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010). Equitable tolling is a highly fact-intensive inquiry, and “the district court is in a better position to develop the facts and assess their legal significance.” Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc).

The Supreme Court has also recognized that a credible showing of actual innocence may allow a prisoner to pursue his constitutional claims on the merits notwithstanding the existence of a procedural bar to relief. McQuiggin v. Perkins, — U.S. —, 133 S.Ct. 1924, 1932, 185 L.Ed.2d 1019 (2013). To prevail under this standard, the petitioner must show that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

On the basis of the existing record, we are unable to determine whether Moody has demonstrated diligence in pursuing his rights, or sufficiently shown actual innocence to access the distinct “fundamental miscarriage of justice” exception. Accordingly, we cannot tell whether Moody is entitled to equitable tolling or, alternatively, whether Moody has established a freestanding actual innocence claim. Because “it cannot be conclusively determined that [Moody] is not entitled to equitable tolling,” Porter v. Ollison, 620 F.3d 952, 960 (9th Cir.2010), “we believe the best course is to remand to the district court for appropriate development of the record.” Whalem/Hunt, 233 F.3d at 1148.

Accordingly, we VACATE the district court’s order dismissing the petition as untimely and REMAND for an evidentiary hearing.

VACATED AND REMANDED. Each party shall bear its own costs on appeal.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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