FILED NOT FOR PUBLICATION OCT 21 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN GILBERTO MEDRANO, No. 17-56305
Petitioner-Appellant, D.C. No. 2:16-cv-08292-FFM
v. MEMORANDUM* SCOTT FRAUENHEIM, Warden,
Respondent-Appellee.
Appeal from the United States District Court for the Central District of California Frederick F. Mumm, Magistrate Judge, Presiding
Argued and Submitted April 12, 2019 Pasadena, California
Before: RAWLINSON and MURGUIA, Circuit Judges, and GILSTRAP,** District Judge.
Juan Gilberto Medrano (Petitioner) appeals the denial of his federal habeas
petition filed in November, 2016.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Rodney Gilstrap, United States District Judge for the Eastern District of Texas, sitting by designation. In November, 2015, Petitioner filed his first state habeas petition. While that
petition was pending, a few days later, Petitioner filed a protective federal petition
asserting the same claims as those in the state petition, and moved for a Rhines1
stay. In December, 2015, the federal district court summarily dismissed the
petition and denied the stay request because all claims were unexhausted.
Petitioner’s initial state petition was denied as untimely and on the merits in April,
2016. Petitioner’s subsequent state petitions were also unsuccessful.
On November 7, 2016, Petitioner filed a second federal petition asserting the
now exhausted claims. He contended that he was entitled to equitable tolling
because, inter alia, he had limited access to the prison law library. The district
court denied the second federal petition as untimely, finding that Petitioner raised
no valid grounds for statutory tolling, and that Petitioner was not entitled to
equitable tolling because he failed to demonstrate that extraordinary circumstances
prevented him from timely filing his second habeas petition.
This Court reviews “the timeliness of the federal habeas petition de novo.”
McMonagle v. Meyer, 802 F.3d 1093, 1096 (9th Cir. 2015) (en banc) (citation and
alterations omitted). Because Petitioner’s conviction became final on February 10,
2015, he had until February 10, 2016, to file a timely federal habeas petition. See
1 See Rhines v. Weber, 544 U.S. 269 (2005). 2 id. at 1097. Therefore, the November, 2016, petition was not timely, absent
statutory2 or equitable tolling. See Espinoza-Matthews v. California, 432 F.3d
1021, 1025 (9th Cir. 2005). “To be entitled to equitable tolling, a habeas petitioner
must demonstrate two things: (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and prevented
timely filing. . . .” Williams v. Filson, 908 F.3d 546, 558 (9th Cir. 2018) (citation
and internal quotation marks omitted).
On appeal, Petitioner argues that the district court erred in finding that
Petitioner’s limited access to a library was not an extraordinary circumstance that
warranted equitable tolling. However, normal restrictions on a prisoner’s access to
the law library does not constitute extraordinary circumstances standing in the way
of timely filing a federal petition. See Ramirez v. Yates, 571 F.3d 993, 998 (9th
Cir. 2009).
2 To the extent that Petitioner contends that he is entitled to statutory tolling, the district court did not err in finding that Medrano was ineligible for statutory tolling. Petitioner’s first state petition was denied as untimely, so it was not properly before the state court to toll the limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). The filings of his third and fourth state petitions after the statute of limitations expired could not toll the running of a limitations period that had already expired. See Ford v. Gonzalez, 683 F.3d 1230, 1237 n.4 (9th Cir. 2012). 3 Without having presented the argument to the district court,3 Petitioner now
asserts an additional basis for equitable tolling: that the denial of the Rhines stay
request in connection with his 2015 federal petition was erroneous under our
February, 2016, decision, Mena v. Long, 813 F.3d 907 (9th Cir. 2016) (explaining
that a Rhines stay is available for completely unexhausted petitions).
Generally, we consider arguments not raised before the district court waived,
unless one of the following exceptions applies:
(1) there are exceptional circumstances why the issue was not raised in the trial court; (2) the new issue arises while the appeal is pending because of a change in the law; or (3) the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court. Further exception may be made when plain error has occurred and an injustice might otherwise result.
Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir. 2006) (citations and internal
quotation marks omitted).
None of the exceptions provides a viable avenue for us to reach the Mena
issue. Petitioner describes no exceptional circumstances that prevented him from
raising the issue before either district court below. Even if Mena represented a
clear change in the law, Mena was not decided while this appeal was pending. The
3 Petitioner has not moved for reconsideration of the dismissal of his 2015 petition and the denial of the Rhines stay request under Federal Rule of Civil Procedure 60(b)(6). 4 determination of whether an extraordinary circumstance exists that warrants
equitable tolling is “highly fact-dependent,” Sossa v. Diaz, 729 F.3d 1225, 1229
(9th Cir. 2013), as is the inquiry into whether Petitioner sufficiently alleged good
cause to merit a stay. See King v. Ryan, 564 F.3d 1133, 1138 (9th Cir. 2009).
Although we have previously recognized that a district court’s erroneous dismissal
of a mixed petition is an extraordinary circumstance for tolling purposes, see
Jefferson v. Budge, 419 F.3d 1013, 1016-17 (9th Cir. 2005), we have never done so
for a completely unexhausted petition, where the equitable tolling issue was not
presented to the district court. In any event, Petitioner has not demonstrated that
the district court plainly erred when it denied the request in 2015, because the rule
articulated in Mena was not “clear or obvious.” United States v. Anguiano-Morfin,
713 F.3d 1208, 1211 (9th Cir. 2013).
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FILED NOT FOR PUBLICATION OCT 21 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN GILBERTO MEDRANO, No. 17-56305
Petitioner-Appellant, D.C. No. 2:16-cv-08292-FFM
v. MEMORANDUM* SCOTT FRAUENHEIM, Warden,
Respondent-Appellee.
Appeal from the United States District Court for the Central District of California Frederick F. Mumm, Magistrate Judge, Presiding
Argued and Submitted April 12, 2019 Pasadena, California
Before: RAWLINSON and MURGUIA, Circuit Judges, and GILSTRAP,** District Judge.
Juan Gilberto Medrano (Petitioner) appeals the denial of his federal habeas
petition filed in November, 2016.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Rodney Gilstrap, United States District Judge for the Eastern District of Texas, sitting by designation. In November, 2015, Petitioner filed his first state habeas petition. While that
petition was pending, a few days later, Petitioner filed a protective federal petition
asserting the same claims as those in the state petition, and moved for a Rhines1
stay. In December, 2015, the federal district court summarily dismissed the
petition and denied the stay request because all claims were unexhausted.
Petitioner’s initial state petition was denied as untimely and on the merits in April,
2016. Petitioner’s subsequent state petitions were also unsuccessful.
On November 7, 2016, Petitioner filed a second federal petition asserting the
now exhausted claims. He contended that he was entitled to equitable tolling
because, inter alia, he had limited access to the prison law library. The district
court denied the second federal petition as untimely, finding that Petitioner raised
no valid grounds for statutory tolling, and that Petitioner was not entitled to
equitable tolling because he failed to demonstrate that extraordinary circumstances
prevented him from timely filing his second habeas petition.
This Court reviews “the timeliness of the federal habeas petition de novo.”
McMonagle v. Meyer, 802 F.3d 1093, 1096 (9th Cir. 2015) (en banc) (citation and
alterations omitted). Because Petitioner’s conviction became final on February 10,
2015, he had until February 10, 2016, to file a timely federal habeas petition. See
1 See Rhines v. Weber, 544 U.S. 269 (2005). 2 id. at 1097. Therefore, the November, 2016, petition was not timely, absent
statutory2 or equitable tolling. See Espinoza-Matthews v. California, 432 F.3d
1021, 1025 (9th Cir. 2005). “To be entitled to equitable tolling, a habeas petitioner
must demonstrate two things: (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and prevented
timely filing. . . .” Williams v. Filson, 908 F.3d 546, 558 (9th Cir. 2018) (citation
and internal quotation marks omitted).
On appeal, Petitioner argues that the district court erred in finding that
Petitioner’s limited access to a library was not an extraordinary circumstance that
warranted equitable tolling. However, normal restrictions on a prisoner’s access to
the law library does not constitute extraordinary circumstances standing in the way
of timely filing a federal petition. See Ramirez v. Yates, 571 F.3d 993, 998 (9th
Cir. 2009).
2 To the extent that Petitioner contends that he is entitled to statutory tolling, the district court did not err in finding that Medrano was ineligible for statutory tolling. Petitioner’s first state petition was denied as untimely, so it was not properly before the state court to toll the limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). The filings of his third and fourth state petitions after the statute of limitations expired could not toll the running of a limitations period that had already expired. See Ford v. Gonzalez, 683 F.3d 1230, 1237 n.4 (9th Cir. 2012). 3 Without having presented the argument to the district court,3 Petitioner now
asserts an additional basis for equitable tolling: that the denial of the Rhines stay
request in connection with his 2015 federal petition was erroneous under our
February, 2016, decision, Mena v. Long, 813 F.3d 907 (9th Cir. 2016) (explaining
that a Rhines stay is available for completely unexhausted petitions).
Generally, we consider arguments not raised before the district court waived,
unless one of the following exceptions applies:
(1) there are exceptional circumstances why the issue was not raised in the trial court; (2) the new issue arises while the appeal is pending because of a change in the law; or (3) the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court. Further exception may be made when plain error has occurred and an injustice might otherwise result.
Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir. 2006) (citations and internal
quotation marks omitted).
None of the exceptions provides a viable avenue for us to reach the Mena
issue. Petitioner describes no exceptional circumstances that prevented him from
raising the issue before either district court below. Even if Mena represented a
clear change in the law, Mena was not decided while this appeal was pending. The
3 Petitioner has not moved for reconsideration of the dismissal of his 2015 petition and the denial of the Rhines stay request under Federal Rule of Civil Procedure 60(b)(6). 4 determination of whether an extraordinary circumstance exists that warrants
equitable tolling is “highly fact-dependent,” Sossa v. Diaz, 729 F.3d 1225, 1229
(9th Cir. 2013), as is the inquiry into whether Petitioner sufficiently alleged good
cause to merit a stay. See King v. Ryan, 564 F.3d 1133, 1138 (9th Cir. 2009).
Although we have previously recognized that a district court’s erroneous dismissal
of a mixed petition is an extraordinary circumstance for tolling purposes, see
Jefferson v. Budge, 419 F.3d 1013, 1016-17 (9th Cir. 2005), we have never done so
for a completely unexhausted petition, where the equitable tolling issue was not
presented to the district court. In any event, Petitioner has not demonstrated that
the district court plainly erred when it denied the request in 2015, because the rule
articulated in Mena was not “clear or obvious.” United States v. Anguiano-Morfin,
713 F.3d 1208, 1211 (9th Cir. 2013).
AFFIRMED.
5 FILED Medrano v. Frauenheim, No. 17-56305 OCT 21 2019 MOLLY C. DWYER, CLERK MURGUIA, Circuit Judge, dissenting: U.S. COURT OF APPEALS
Because Medrano is entitled to equitable tolling, I would reverse.
Adhering to Supreme Court guidance in Pace v. DiGuglielmo, 544 U.S. 408
(2005), Medrano diligently filed a protective federal habeas petition before
AEDPA’s one-year limitations period ran. That protective petition, however, was
improperly dismissed according to now-controlling Circuit precedent. In Mena v.
Long, 813 F.3d 907 (9th Cir. 2016)—which was published after the denial of
Medrano’s 2015 petition, but before the denial of his 2016 petition—our court
explained that a district court has discretion to grant a Rhines stay even if all claims
in a petition are unexhausted.
The unwarranted dismissal of a petitioner’s earlier, timely filed federal
habeas petition is an extraordinary circumstance that can support equitable tolling.
Jefferson v. Budge, 419 F.3d 1013, 1017 (9th Cir. 2005). In light of Mena, we can
conclude that the logic of Jefferson extends to the present context. At least two
federal district courts in our Circuit agree. See Torres v. Sullivan, 2017 WL
2952925, *5 (C.D. Cal. May 25, 2017); Briggs v. California, 2017 WL 1806495,
*3–5 (N.D. Cal. May 5, 2017). Furthermore, because the question of whether dismissal of a protective
federal habeas petition pre-Mena can constitute an extraordinary circumstance
sufficient to warrant equitable tolling is “purely a question of law,” Allen v.
Ornoski, 435 F.3d 946, 960 (9th Cir. 2006), we could have and should have
addressed it for the first time on appeal.
I respectfully dissent.