Michael Young v. Raybon Johnson

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 14, 2021
• Docket: 18-56261
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 14 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL CLIFFORD YOUNG, No. 18-56261

Petitioner-Appellant, D.C. No. 2:17-cv-08995-MWF-JDE v.

RAYBON JOHNSON, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Submitted December 10, 2020** Pasadena, California

Before: GOULD and R. NELSON, Circuit Judges, and COGAN,*** District Judge.

Michael Young appeals the district court’s judgment denying his habeas

corpus petition as untimely under the one-year time limit in the Antiterrorism and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation. Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244. The district

court concluded that although Young was entitled to eleven days of statutory

tolling for the period of time during which his state habeas corpus petition was

pending in the Superior Court of California, he was not entitled to equitable tolling

for the approximately six-month period during which he lacked knowledge of the

Superior Court’s decision. We have jurisdiction pursuant to 28 U.S.C. § 2253 and

we affirm.

“We review de novo the dismissal of a federal habeas petition as untimely,

including ‘whether the statute of limitations should be equitably tolled.’” Smith v.

Davis, 953 F.3d 582, 587 (9th Cir. 2020) (en banc) (quoting Fue v. Biter, 842 F.3d

650, 653 (9th Cir. 2016)). Findings of fact made by the district court are reviewed

for clear error. See Stancle v. Clay, 692 F.3d 948, 953 (9th Cir. 2012).

AEDPA’s statutory limitations period may be tolled for equitable reasons.

Holland v. Florida, 560 U.S. 631, 645 (2010). “Generally, a litigant seeking

equitable tolling bears the burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood

in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). To meet the first

element the petitioner “must show that he has been reasonably diligent in pursuing

his rights not only while an impediment to filing caused by an extraordinary

circumstance existed, but before and after as well, up to the time of filing his claim

2 in federal court.” Smith, 953 F.3d at 598-99. The second element is met “only

when an extraordinary circumstance prevented a petitioner acting with reasonable

diligence from making a timely filing.” Id. at 600. Such a circumstance must be

“both extraordinary and beyond [the petitioner’s] control.” Menominee Indian

Tribe of Wis. v. United States, 136 S. Ct. 750, 756 (2016).

Young claimed that he was entitled to equitable tolling because he did not

receive notice that the Superior Court denied his state habeas petition just eleven

days after the petition was filed. A petitioner’s “lack of knowledge that the state

courts have reached a final resolution of his case” can constitute an extraordinary

circumstance for purposes of equitable tolling if the petitioner has “acted diligently

to obtain notice” of the state court’s decision. Ramirez v. Yates, 571 F.3d 993,

997-98 (9th Cir. 2009). Young argued that his request for prison mail logs

demonstrated diligence. He requested and reviewed the prison mail logs about

three months after he filed his state habeas petition to confirm that the prison did

not receive notice of the state court’s decision. Young never contacted the

Superior Court to inquire about the status of his petition. After checking the prison

mail logs, Young waited another three months before filing his federal habeas

corpus petition.

On this record, Young has not shown that he acted with sufficient diligence

to obtain notice of the state court’s decision. “The California Rules of Court

3 require the Superior Court to render a decision on a habeas petition within sixty

days and provide a process for a petitioner to request a ruling if his petition is not

resolved within that time.” Fue, 842 F.3d at 654. The Superior Court thus “invites

petitioners to follow up on their habeas petitions.” Id. Young was aware that the

Superior Court had a timeline by which it must rule on his petition, but he did not

contact the Superior Court even when he believed that time had expired. By

contrast, petitioners who have been found to be diligent under similar

circumstances contacted the state court to check the status of their petitions at least

once. See Passalacqua v. McDonald, 650 F. App’x 374, 375 (9th Cir. 2016); Fue,

842 F.3d at 654-56; Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir. 2001).

Young’s review of the prison mail logs could only confirm that the prison did not

receive mail containing notice of the state court’s decision, and alone did not

satisfy the diligence requirement.

Further, Young did not demonstrate diligence in preparing his state and

federal habeas petitions throughout the limitations period. “[I]n every instance

reasonable diligence seemingly requires the petitioner to work on his petition with

some regularity—as permitted by his circumstances—until he files it in the district

court.” Smith, 953 F.3d at 601. Young’s conviction became final on October 18,

2016, ninety days after the Supreme Court of California denied his Petition for

Review on July 20, 2016. See Harris v. Carter, 515 F.3d 1051, 1053 n.1 (9th Cir.

4 2008). Young waited another seven months before filing his state habeas petition,

and an additional six months passed before he filed his federal habeas petition.

Young did not describe any efforts to prepare either petition during these periods.

Nor did Young establish that the extraordinary circumstance “stood in his

way and prevented timely filing.” See Smith, 953 F.3d at 590. Young ultimately

filed his federal habeas petition six months after filing his state habeas petition

even though, at that time, he still did not know that his state habeas petition had

been denied months earlier. Young did not explain why he was able to file his

federal habeas petition at this time, despite his continued lack of notice, but could

not have timely filed it a few weeks earlier. Accordingly, Young did not establish

that his lack of notice of the state court’s decision prevented the timely filing of his

federal habeas petition.

AFFIRMED.