Frank William Trudeau v. D. L. RUNNELS, Warden

* This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
** The Honorable Robert E. Cowen, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK WILLIAM TRUDEAU,
Petitioner - Appellant,
v.
D. L. RUNNELS, Warden
Respondent - Appellee.
No. 08-17578
D.C. No. 1-02-cv-05764-LJO-
SMS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted December 9, 2010
San Francisco, California
Before: COWEN, ** TASHIMA and SILVERMAN, Circuit Judges.
FILED
FEB 02 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We review
the District Court’s dismissal of Trudeau’s habeas petition de novo. Griffin v.
Johnson, 350 F.3d 956, 960 (9th Cir. 2003); Miles v. Prunty, 187 F.3d 1104, 1105
(9th Cir. 1999).
2 The District Court initially determined that Trudeau’s state habeas petition
was not filed until May 1, 2001, the date it was docketed. Upon review, however,
we concluded that the petition should be deemed filed on April 25, 2001, the date
that Trudeau placed it in the prison mailbox, see Houston v. Lack, 487 U.S. 266,
276 (1988), and we remanded the matter for further development of the record on
the issue of equitable tolling. Trudeau v. Runnels, 120 F. App’x 95, 96 (9th Cir.
2005) (non-precedential).
2
Frank William Trudeau, a California state prisoner, appeals from the District
Court’s order dismissing his petition filed pursuant to 28 U.S.C. § 2254 on the
ground that it was barred by the one-year statute of limitations established by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Trudeau argues
that the District Court erred in concluding that he was not entitled to equitable
tolling of the limitations period. We agree. 1
Trudeau’s conviction and sentence became final on April 17, 2000, when the
United States Supreme Court denied his petition for writ of certiorari at the
conclusion of his direct appeal. See 28 U.S.C. § 2244(d)(1)(A). At that time,
Trudeau had one year to file a federal habeas petition. See 28 U.S.C. § 2244(d)(1).
One year and seven days later, on April 25, 2001, Trudeau commenced collateral
review proceedings in state court. 2 If Trudeau is entitled to seven days or more of

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3 The parties do not discuss on appeal how statutory tolling affects the
ultimate timeliness of Trudeau’s federal habeas petition. Trudeau previously
argued, however, that his petition would be timely based on the following
reasoning. If he is entitled to seven or more days of equitable tolling, then the one-
year limitations period had not yet expired when he filed his state habeas petition
on April 25, 2001. Pursuant to 28 U.S.C. § 2244(d)(2), the filing of that state
petition tolled the limitations period until May 31, 2002, thirty days after the
California Supreme Court rejected his final collateral challenge. See Allen v.
Lewis, 295 F.3d 1046, 1046 (9th Cir. 2002) (en banc); Nino v. Galaza, 183 F.3d
1003, 1006 (9th Cir. 1999). Because Trudeau filed his federal habeas petition on
May 28, 2002, several days before the limitations period recommenced, his petition
was timely. Based on our review of the record, this analysis, which has not been
disputed by the government, appears to be correct.
3
equitable tolling, this state-court filing would toll the running of the limitations
period, see 28 U.S.C. § 2244(d)(2), such that his federal habeas petition would be
timely.3
The District Court erred in holding that Trudeau was not entitled to equitable
tolling. “[W]hen external forces, rather than a petitioner’s lack of diligence,
account for the failure to file a timely claim, equitable tolling may be appropriate.”
Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002) (quoting Miles, 187 F.3d at
1107). In this case, several circumstances beyond Trudeau’s control combined to
interfere with his ability to promptly file his habeas petition: his lawyer delayed in
informing him that the Supreme Court had denied his petition for certiorari; he was
unable to access the prison law library for prolonged periods of time due to a series
of prison lockdowns; and his lawyer did not send him copies of his transcripts for

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4
142 days despite his repeated requests. Because Trudeau was diligently pursuing
his rights throughout this period, we conclude that he was entitled to at least seven
days of equitable tolling, thus rendering his federal habeas petition timely.
REVERSED AND REMANDED.

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