Johnson v. Knowles

116 F. App'x 822

Opinions

MEMORANDUM

Footnotes

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La Merle Ronnie Johnson appeals a district court order dismissing his habeas petition as untimely. Johnson does not dispute that he failed to file his federal habeas petition within the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2244(d)(1)(A). Rather, he contends that the deadline should have been equitably or statutorily tolled.

Equitable tolling is appropriate when “external forces, rather than a petitioner’s lack of diligence, account for the failure to file a timely claim.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999). Johnson argues that three factors prevented him from filing a timely claim in the state courts: the inadequacy of the CSP-SATF C-Yard prison legal library, the county prosecutor’s refusal to turn over documents, and his trial counsel’s refusal to turn over files. The district court denied equitable tolling on all three grounds. We affirm.

The district court found that the legal materials in the CSP-SATF C-Yard were not so inadequate as to prevent Johnson from filing a state habeas application. We affirm that finding. We also affirm the district court’s finding that the San Mateo County District Attorney’s refusal to turn over documents did not prevent Johnson from filing a timely petition. Even were we to agree with Johnson that a state habeas petitioner should not be forced to file “a weak petition as soon as he can, effectively forfeiting any chance of success,” we see no such dilemma here. Johnson knew the factual basis of his claims when he filed his state habeas applications. Although he may have needed the documents to supplement his claims, the prosecutor’s refusal to provide them did not prevent him from formulating his claims and petitioning the court. Finally, we affirm the district court’s finding that Johnson’s inability to obtain his trial court file before April 28, 1998 did not prevent him from filing a state application by the February 17,1999 deadline.

Johnson also argues that a motion that he filed with the San Mateo County Superior Court tolls the deadline under 28 U.S.C. § 2244(d)(2), which provides that the “time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward [the one-year] limitation.” The district court accepted Johnson’s description of this motion as “asking the court to order the District Attorney’s Office to turn over documents which were necessary to develop Petitioner’s claim of prosecutorial misconduct and ineffective assistance of counsel,” and denied tolling because the motion did not constitute a “collateral attack” on the judgment. Johnson v. Knowles, No. C02-5309, at 3 (N.D.Cal. July 23, 2003). The validity of this conclusion turns on the actual wording and content of the motion. As a pro se petitioner, Johnson may have set forth enough specificity about the nature of his prosecutorial misconduct and ineffective assistance of counsel claims to warrant construing the motion in substance as asserting habeas claims. Cf. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1990) (stating that pro se pleadings are liberally construed). Without the actual motion in the record, however, we cannot determine whether it was specific enough to qualify as an attack on the judgment and thus as an “application” for review for purposes of statutory tolling under § 2244(d)(2). Johnson reports that his copy of the motion was taken from his prison cell; the state indicated at oral argument that it believed it could obtain the motion. We therefore remand to the district court so that the state can take the steps necessary to obtain Johnson’s motion for the district court’s consideration.

If the district court after reviewing the actual content of the motion finds that it is properly construed as a collateral attack on the judgment, the court must also determine the duration of tolling — the time during which any of Johnson’s applications for collateral review were pending, 28 U.S.C. § 2244(d)(2), and, if appropriate, any of the intervals between those applications. See Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (holding that a state petition for collateral review is pending during the interval between a lower court’s determination and the filing of a subsequent petition in state court); Gaston v. Palmer, 387 F.3d 1004 (9th Cir.2004) (applying statutory tolling under AEDPA to a federal habeas applicant seeking interval tolling for habeas applications filed in California state courts); Welch v. Carey, 350 F.3d 1079 (9th Cir.2003) (holding that interval tolling was not appropriate where petitioner’s second California habeas petition brought claims different from his first). We therefore also remand to the district court to determine, if relevant, the duration for which the applications were pending and whether any of the applications qualified for interval tolling.

We AFFIRM as to the issues of equitable tolling but REVERSE on the issue of statutory tolling and REMAND to the district court for further proceedings.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.