United States v. 2012-05-04 | 08-56520 | DARRYL NEDDS V. JOHN MARSHALL | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 DARRYL D. NEDDS, No. 08-56520
Petitioner-Appellant, D.C. No.
v. 2:01-cv-08355- 
ART CALDERON, Warden, DSF-CW
substituted for Don Taylor, OPINION
Respondent-Appellee. 
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
May 2, 2011—Pasadena, California
Filed May 4, 2012
Before: Harry Pregerson, Raymond C. Fisher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Pregerson
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COUNSEL
Sean K. Kennedy, Federal Public Defender, Los Angeles,
California; Michael Tanaka (argued), Deputy Federal Public
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Defender, Los Angeles, California for the petitioner-
appellant.
Edmund G. Brown Jr., Attorney General of California; Dane
R. Gillette, Chief Assistant Attorney General; Pamela C.
Hamanaka, Senior Assistant Attorney General; Stephanie C.
Brenan, Deputy Attorney General; David A. Wildman
(argued), Deputy Attorney General, Los Angeles, California,
for the respondent-appellee.
OPINION
PREGERSON, Circuit Judge:
Petitioner-Appellant Darryl Nedds (“Nedds”), a California
state prisoner, appeals the district court’s holding that his 28
U.S.C. § 2254 habeas corpus petition is time-barred by the
one-year statute of limitations created by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). The
district court dismissed Nedds’ habeas petition solely for
untimeliness and did not reach the merits of Nedds’ claim.
Accordingly, the only issue before us is whether Nedds timely
filed his federal habeas petition.
Nedds argues that he is entitled to equitable tolling for the
entire time he pursued his state habeas petitions because, in
deciding when he should file his federal habeas petition, he
was entitled to rely on then-existing Ninth Circuit precedent
under which his federal habeas petition would have been
timely when filed. We agree. A habeas petitioner who decides
when to file his federal habeas petition in accord with Ninth
Circuit precedent that is later overturned by the U.S. Supreme
Court is entitled to equitable tolling. See Harris v. Carter, 515
F.3d 1051, 1057 (9th Cir.), cert. denied, 555 U.S. 967 (2008);
Townsend v. Knowles, 562 F.3d 1200, 1206 (9th Cir. 2009),
abrogated on other grounds by Walker v. Martin, 131 S. Ct.
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1120 (2011). Because we hold that Nedds is entitled to equita-
ble tolling, we vacate the district court’s order dismissing
Nedds’ federal habeas petition as untimely and remand the
case to the district court for consideration of Nedds’ petition
on the merits.
BACKGROUND
On October 9, 1997, Nedds was convicted in Los Angeles
County Superior Court of one count of possession of a con-
trolled substance (one rock of crack cocaine). Nedds had four
prior felony convictions—all for robbery—within the mean-
ing of California’s Three Strikes Law. Because of the priors,
he was sentenced to twenty-five years to life in state prison.
On January 13, 1999, the California Court of Appeal affirmed
the conviction, and on March 24, 1999, the California
Supreme Court denied review. The conviction became final
on June 22, 1999.
Nedds’ quest for habeas relief proceeded as follows:
• On May 25, 1999, before the conviction was
final, Nedds filed identical state habeas petitions
in Superior Court, and the California Court of
Appeal.
• On or about May 27, 1999, Nedds was trans-
ferred from Ironwood State Prison to Tehachapi
State Prison (“Tehachapi”).
• The Superior Court denied Nedds’ habeas peti-
tion on June 25, 1999, and the California Court
of Appeal denied the petition on July 14, 1999.
• On December 22, 1999—160 days later—Nedds
filed another state habeas petition in the Califor-
nia Court of Appeal. The petition was denied on
January 26, 2000.
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• On April 5, 2000—70 days later—Nedds filed a
state habeas petition in the California Supreme
Court. The petition was denied on September 27,
2000.
• On September 10, 20011—348 days later—Nedds
filed a habeas petition in federal district court. All
of the petitions (both state and federal) were filed
pro se.
• On August 11, 2008, the district court dismissed
Nedds’ federal habeas petition as untimely for
failing to meet AEDPA’s one-year statute of lim-
itations, which, absent any form of tolling,
expired on June 22, 2000.
Nedds timely appealed to this court, arguing that the district
court erred by not crediting him with the equitable and statu-
tory tolling to which he was entitled. Nedds argues that he
was entitled to equitable tolling for the time his state habeas
petitions were pending because under then-current, but later
overturned, Ninth Circuit law, his federal habeas petition
would have been timely. Nedds also argues that his filing
delays were justified and that he was entitled to statutory toll-
ing for the period he was in the high security prison at
Tehachapi, because, among other things, he had severely lim-
ited access to the law library, he was frequently under lock-
down, and he was under extreme stress due to prison violence.
1Nedds’ petition was dated July 10, 2001, but the petition was not
received and filed by the district court until September 27, 2001. The dis-
trict court, however, mistakenly read the signature date as September 10,
2001, and construed that date as the applicable constructive filing date.
After realizing its error, the district court found that a prison mailing and
constructive filing date two and a half months before receipt by the court
was not credible, so it continued to use the September 10, 2001, date in
its analysis. Because the discrepancy in filing dates is not dispositive of
this appeal, we follow the district court in using the September 10, 2001,
filing date.
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According to Nedds, the prison conditions made it difficult
for him to timely file his habeas petition. Lastly, Nedds argues
that he is entitled to equitable and statutory tolling because he
did not receive timely notice of the July 14, 1999, California
Court of Appeal denial of his second habeas petition.
DISCUSSION
This court reviews de novo a district court’s decision to dis-
miss a § 2254 habeas petition as untimely. Rasberry v. Gar-
cia, 448 F.3d 1150, 1153 (9th Cir. 2006). Underlying findings
of fact are reviewed for clear error. Id.
I
A petitioner is entitled to equitable tolling only if he shows
“ ‘(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way’ and
prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549,
2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). The grounds for granting equitable tolling are
“highly fact-dependent.” Laws v. Lamarque, 351 F.3d 919,
922 (9th Cir. 2003) (quoting Whalem/Hunt v. Early, 233 F.3d
1146, 1148 (9th Cir. 2000) (en banc)) (internal quotation
marks omitted). When considering whether to apply equitable
tolling, the Supreme Court has emphasized the need for
“ ‘flexibility’ ” and for “avoiding ‘mechanical rules.’ ” Hol-
land, 130 S. Ct. at 2563 (quoting Holmberg v. Armbrecht, 327
U.S. 392, 396 (1946)). A court reviewing a habeas petition
should adhere to “a tradition in which courts of equity have
sought to ‘relieve hardships which, from time to time, arise
from a hard and fast adherence’ to more absolute legal rules,
which, if strictly applied, threaten the ‘evils of archaic rigidi-
ty.’ ” Id. (quoting Hazel-Atlas Glass Co. v. Hartford-Empire
Co., 322 U.S. 238, 248 (1944), disapproved of on other
grounds by Standard Oil Co. of Cal. v. United States, 429
U.S. 17, 18 & n.2 (1976)).
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II
Under AEDPA, a state prisoner has one year from the date
his conviction becomes final to file a federal habeas corpus
petition. 28 U.S.C. § 2244(d)(1)(A). A habeas petitioner is
entitled to statutory tolling of AEDPA’s one-year statute of
limitations while a “properly filed application for State post-
conviction or other collateral review with respect to the perti-
nent judgment or claim is pending.” Id. § 2244(d)(2). A peti-
tioner who unreasonably delays in filing a state habeas
petition would not be granted the benefit of statutory tolling
because the petition would not be considered “pending,”
Carey v. Saffold, 536 U.S. 214, 225 (2002), or “properly
filed,” Pace, 544 U.S. at 418, within the meaning of
§ 2244(d)(2).
Nedds’ conviction was final on June 22, 1999. Accord-
ingly, absent statutory tolling, the deadline to file his federal
habeas petition was June 22, 2000. But Nedds did not file his
federal habeas petition until September 10, 2001. Nedds
argues that regardless of whether he is entitled to statutory
tolling, he is entitled to equitable tolling. Nedds contends that
AEDPA’s one-year statute of limitations should be equitably
tolled for the entire time he pursued his state habeas petitions
because, in deciding when he should file his federal habeas
petition, he relied on then-existing Ninth Circuit precedent.
Under that precedent, Nedds argues, he timely filed his fed-
eral habeas petition on September 10, 2001, because it was
filed less than one year after the California Supreme Court
denied Nedds’ final state habeas petition. We agree.2
2The government argues that the 160-day delay between Nedds’ second
and third state habeas petitions and the 70-day delay between his third and
fourth state habeas filings were unreasonable, and he is therefore not enti-
tled to statutory tolling. Because we conclude that Nedds is entitled to
equitable tolling, we need not decide if he is entitled to statutory tolling.
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III
[1] A habeas petitioner who decides when to file his fed-
eral habeas petition by relying on Ninth Circuit precedent that
is later overturned by the Supreme Court is entitled to equita-
ble tolling. Harris v. Carter, 515 F.3d 1051, 1057 (9th Cir.),
cert. denied, 555 U.S. 967 (2008); Townsend v. Knowles, 562
F.3d 1200, 1206 (9th Cir. 2009), abrogated on other grounds
by Walker v. Martin, 131 S. Ct. 1120 (2011). Indeed, “[t]hese
are precisely the circumstances in which equitable principles
justify tolling of the statute of limitations.” Id. at 1056.
[2] On July 6, 1999, the Ninth Circuit decided Nino v.
Galaza, 183 F.3d 1003 (9th Cir. 1999), holding that
“[AEDPA’s] statute of limitations is [statutorily] tolled from
the time the first state habeas petition is filed until the Califor-
nia Supreme Court rejects the petitioner’s final collateral chal-
lenge.” Id. at 1006 (footnotes omitted). Thus, Nedds was
entitled to assume under Nino that the AEDPA statute of limi-
tations would not begin to run until September 27, 2000,
when his final state habeas petition was denied by the Califor-
nia Supreme Court. His AEDPA deadline was therefore one
year later, on September 27, 2001. Because he filed his fed-
eral petition on September 10, 2001, his petition was timely
under Nino.
[3] Not until June 17, 2002, when the United States
Supreme Court decided Carey v. Saffold, 536 U.S. 214, 225
(2002), did the law on statutory tolling of AEDPA’s statute of
limitations change—well after Nedds filed his federal habeas
petition. In Saffold, the Court implicitly overruled Nino, as it
held that a California habeas petitioner who unreasonably
delays in filing a state habeas petition is not entitled to the
benefit of statutory tolling during the gap or interval preced-
ing the filing. See id. at 225-27. Accordingly, under current
Supreme Court law, if the state habeas court or the federal
habeas court determines that a petitioner’s state habeas delays
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were unreasonable, he would not be entitled to statutory toll-
ing for the intervals between state habeas petitions.
Nedds correctly argues, however, that Townsend and Har-
ris control the outcome of his case. In Harris, we held that
habeas petitioners who relied on precedent such as Nino were
entitled to equitable tolling for the pendency of their state
court habeas proceedings if Ninth Circuit precedent then in
effect, under which the filing was timely, was later overturned
by the United States Supreme Court. See Harris, 515 F.3d at
1057 (“Equitable principles dictate that [the court] toll
AEDPA’s statute of limitations in the rare case where a peti-
tioner relies on [the court’s] legally erroneous holding in
determining when to file a federal habeas petition.”); id. at
1053 n.3.
[4] Just as in Harris, Nedds “relied in good faith on then-
binding circuit precedent in making his tactical decision to
delay filing a federal habeas petition.” Id. at 1055. Under
Harris, Nedds’ actions consistent with later overturned prece-
dent qualify as an “extraordinary circumstance.” Id. at 1057.
Similar to the petitioner in Townsend, Nedds “diligently pur-
sued his rights in his postconviction habeas petition in the
state courts and ensured that he had enough time remaining to
file a [timely] federal habeas petition under the then-existing
[Nino] rule.” Townsend, 562 F.3d at 1206. Nedds demon-
strated the requisite “diligence” because his “failure to file a
timely petition is not the result of oversight, miscalculation or
negligence on his part.” Harris, 515 F.3d at 1055. Because
Nedds was entitled to equitable tolling, his AEDPA deadline
was September 27, 2001, one year after the California
Supreme Court denied his final state petition. Nedds filed his
federal petition on September 10, 2001. His federal habeas
petition was therefore timely.3
3The government argues that Nedds is precluded from arguing that he
is entitled to equitable tolling because of his reliance on now-overruled
Ninth Circuit precedent, because this specific equitable tolling argument
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IV
The government argues that our decision in Lakey v. Hick-
man, 633 F.3d 782 (9th Cir. 2011), precludes Nedds’ argu-
ment that he is entitled to equitable tolling under Harris and
Townsend. We disagree. According to the government, Lakey
established a requirement that a habeas petitioner must make
an affirmative showing of actual reliance on the previous
Ninth Circuit law to receive the benefit of equitable tolling.
The government argues that Nedds makes no such showing.
[5] In support of its theory that Lakey establishes an affir-
mative showing of actual reliance requirement, the govern-
ment mistakenly focuses on language in Lakey noting that the
petitioners in Harris and Townsend “made a showing that
they actually relied on a correct interpretation of the [later-
overturned Ninth Circuit precedent] in delaying their federal
petitioners.” Id. at 787. First, this language was merely
descriptive, and was in no way dispositive in Lakey. And in
fact, nothing in either Harris or Townsend refers to the peti-
tioners in those cases making an affirmative showing of actual
reliance, in the sense of proving awareness and consideration
of the precedents when deciding when to file their petitions.
[6] Nor do Harris or Townsend establish a requirement
that petitioners show actual reliance in that sense. Harris, for
is an uncertified claim not included in the Certificate of Appealability. The
Certificate of Appealability was granted with respect to the following
issue: “whether the district court properly dismissed appellant’s 28 U.S.C.
§ 2254 petition as untimely, including (1) whether appellant is entitled to
statutory ‘gap’ tolling, [ ] and (2) whether appellant is entitled to equitable
tolling based on his lack of access to his legal materials and/or his delayed
notice that the California Court of Appeal had denied his state habeas peti-
tion.” This language is probably broad enough to encompass the variant
of the equitable tolling argument we address. In any event, we construe
Nedds’ equitable tolling argument under Harris and Townsend as a motion
to expand the Certificate of Appealability, and we grant the motion. White
v. Martel, 601 F.3d 882, 884 (9th Cir. 2010) (per curiam); see also 9th Cir.
R. 22-1(e); Velasquez v. Kirkland, 639 F.3d 964, 966 n.3 (9th Cir. 2011).
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example, noted that “Harris was undoubtedly aware of when
AEDPA’s statute of limitations would expire under our rule
in Dictado” and “presumably chose his tactical strategy” on
that basis. 515 F.3d at 1055 (emphasis added). Harris was
premised not on affirmative proof of actual reliance but on the
assumption that litigants may, and do, make strategic deci-
sions on the basis of applicable precedents. Thus, a showing
of actual reliance may be presumed from the circumstances.
Lakey does not announce a new affirmative showing of
actual reliance requirement either. Rather, in Lakey we denied
the petitioner equitable tolling because he did not file his fed-
eral habeas petition until 141 days after the Supreme Court
overruled Dictado, the previously authoritative Ninth Circuit
case. Lakey, 633 F.3d at 787. This delay provided clear indi-
cation that Lakey did not rely on Dictado in deciding when
to file his habeas petition, but was simply dilatory. While
Lakey does establish that a petitioner who clearly did not rely
on our precedent in timing his petition is not entitled to equi-
table tolling, it does not establish the opposite—that a peti-
tioner must make an affirmative showing of actual reliance to
be entitled to equitable tolling. Instead, Lakey demonstrates
that in some circumstances the usual presumption that liti-
gants’ behavior is influenced by the law in effect at the time
they act is belied by the overall course of events.
[7] Unlike in Lakey, in Harris and Townsend the petition-
ers’ actions were consistent with reliance on Dictado in decid-
ing when to file their petitions. As we noted in Lakey, the
petitioner in Harris filed his federal habeas petition just four-
teen days after the Supreme Court overturned our precedent,
and the petitioner in Townsend filed his claim before the
Supreme Court announced its decision. Id. Like the petitioner
in Townsend, Nedds must be presumed to have relied on our
precedent, since he filed his federal habeas petition almost
nine months before our Nino decision was implicitly over-
turned by the Supreme Court in Saffold, and very shortly
before the deadline as calculated under Nino.
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Just as Lakey does not preclude Nedds’ equitable tolling
claim, our decision in Velasquez v. Kirkland, 639 F.3d 964
(9th Cir. 2011), is no bar to relief. In Velasquez, we denied
equitable tolling, holding that the petitioner was put on notice
of the relevant change in law in Saffold, 536 U.S. at 225,
because it was decided by the Supreme Court before the peti-
tioner filed even his state habeas petitions. The petitioner
could not have relied on precedent that was overturned before
he filed his first habeas petition. Velasquez is unlike the situa-
tion Nedds faced, because, as we discussed above, Saffold
was decided after Nedds filed his federal habeas petition.
Thus, it was impossible for Nedds to have been on notice of
the Saffold decision while he was deciding when to file his
federal habeas petition.4
CONCLUSION
[8] Nedds is entitled to equitable tolling for the time period
his state court habeas petitions were pending because he was
entitled to rely on then-existing, but later overturned, Ninth
Circuit precedent that would have made his federal habeas
petition timely when it was filed. We therefore VACATE the
district court’s order dismissing Nedds’ federal habeas peti-
tion as untimely and REMAND the case to the district court
for consideration of Nedds’ petition on the merits.
4As an alternative ground for receiving equitable and statutory tolling,
Nedds contends that he did not receive timely notice of the July 14, 1999,
denial of his second petition because the California Court of Appeal did
not have his correct address after he was transferred to Tehachapi. See Saf-
fold, 536 U.S. at 226 (treating petitioner’s lack of timely notice of his state
habeas denial as a relevant consideration in determining whether the 4 1/2-
month gap between filings was reasonable). Nedds, however, did not
notify the court of his change of address. See Cal. R. Ct. 8.32 (b)(1) (“An
. . . unrepresented party whose address . . . changes while a case is pending
must promptly serve and file a written notice of the change in the review-
ing court in which the case is pending.”). Nor does Nedds state in his
briefs the date on which he finally received notice of the court’s denial.
For these reasons, we agree with the district court that Nedds is not enti-
tled to statutory or equitable tolling on this ground.
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