United States v. 2006-05-24 | 03-15854 | RASBERRY VGARCIA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JACKIE ERVIN RASBERRY, No. 03-15854
Petitioner-Appellant, D.C. No.
v. CV-01-01907-LKK/  GGHROSIE B. GARCIA, ET AL., Warden,
Respondents-Appellees. OPINION

Appeal from the United States District Court
for the Eastern District of California
Gregory G. Hollows, Magistrate Judge, Presiding
Argued and Submitted
April 6, 2006—San Francisco, California
Filed May 25, 2006
Before: Mary M. Schroeder, Chief Judge, Stephen S. Trott
and Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Trott
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COUNSEL
Ann C. McClintock, Assistant Federal Defender, Sacramento,
California, for the petitioner-appellant.
Mark A. Johnson and Eric L. Christoffersen, Deputy Attor-
neys General, Sacramento, California, for the respondents-
appellees.
OPINION
TROTT, Circuit Judge:
Petitioner, Jackie Ervin Rasberry, appeals the dismissal as
untimely of his 28 U.S.C. § 2254 habeas corpus petition. Ras-
berry contends that he is entitled to equitable tolling because
the district court dismissed Rasberry’s wholly unexhausted
habeas petition when it should have been apparent to the court
that Rasberry had accidently omitted from the petition two
claims that he had exhausted in state court. Rasberry argues
that the district court should have notified him of the two
omitted claims, granted him the opportunity to amend his
habeas petition to add the claims, and permitted him to
employ the hold and abeyance procedure, allowing him to
return to state court to exhaust his remaining claims. Alterna-
tively, he argues that his second habeas petition relates back
to his timely filed first habeas petition. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm. A district court
has no obligation to inform a pro se habeas petitioner of
potentially exhausted claims that the petitioner failed to
include in his habeas petition. Additionally, Rasberry’s sec-
ond habeas petition does not relate back to his timely filed
first habeas petition. Thus, the district court properly dis-
missed Rasberry’s untimely habeas petition.
I
Rasberry is a California state prisoner who was sentenced
to fifty years to life imprisonment for two drug convictions.
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The drug convictions together constituted his third “strike.”
The sole issue on appeal is the timeliness of Rasberry’s cur-
rent habeas petition.
Rasberry was convicted and sentenced in 1995. On October
22, 1997, the California Court of Appeal affirmed the convic-
tions but remanded to the superior court on sentencing issues
regarding Rasberry’s prior two strikes. On remand, the supe-
rior court imposed the same sentence, and the court of appeal
affirmed this sentence on June 22, 1999. The California
Supreme Court denied Rasberry’s petition for review on
August 25, 1999. The ninety-day period for filing a petition
for certiorari with the Supreme Court ended on November 23,
1999, which commenced the statute of limitations clock under
28 U.S.C. § 2244(d) for Rasberry’s federal habeas petition.
Absent tolling, the statute of limitations would expire on
November 23, 2000.
On August 6, 2000, well within the limitations period, Ras-
berry filed pro se his first federal habeas petition. The state
moved to dismiss the habeas petition, asserting that all of the
claims were unexhausted. On March 30, 2001, the magistrate
judge issued a report and recommendation. The magistrate
judge found that Rasberry’s petition for review to the Califor-
nia Supreme Court contained two claims, but did not include
any of the claims that Rasberry asserted in his federal habeas
petition. Concluding that all of the claims in the habeas peti-
tion were unexhausted, the magistrate judge recommended
that the district court grant the state’s motion to dismiss. The
magistrate judge neither inquired as to whether Rasberry
intentionally omitted from his habeas petition the two claims
that he had presented to the California Supreme Court, nor
notified Rasberry that he could amend his petition to include
the two claims.
In a footnote, the magistrate judge did notify Rasberry of
the one-year statute of limitations for federal habeas petitions.
However, this notice did not attempt to calculate the starting
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and ending dates for the statute of limitations and therefore
did not notify Rasberry that the limitations period had already
expired on November 23, 2000. On May 23, 2001, the district
court adopted in full the magistrate’s report and recommenda-
tion and entered final judgment on Rasberry’s habeas petition.
On May 10, 2001, even before the district court adopted the
magistrate judge’s report and recommendation, Rasberry filed
a petition for post-conviction relief with the California
Supreme Court to exhaust the claims he had presented in his
federal habeas petition. The supreme court denied this petition
on August 29, 2001, and this decision became final thirty days
later on September 28, 2001.
Having exhausted the claims asserted in his original habeas
petition, Rasberry returned to federal court. On October 12,
2001, he filed a “First Amen[d]ed Petition.” Like Rasberry’s
original habeas petition, this petition omitted the two claims
that he had previously presented to the California Supreme
Court on direct review. The clerk of the court did not treat the
habeas petition as an amendment of the previously dismissed
habeas petition, but instead assigned to it a new case number.
After Rasberry filed the habeas petition, the magistrate judge
appointed counsel to represent him.
Appellees then moved to dismiss the current habeas peti-
tion as untimely. The magistrate judge issued a report and rec-
ommendation on December 9, 2002, recommending that the
motion to dismiss be granted. Over Rasberry’s timely objec-
tions, the district court adopted the findings and recommenda-
tions in full on March 27, 2003, and dismissed the habeas
petition as untimely.
Rasberry timely appeals to this court.
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II
A
We review de novo the district court’s dismissal of a
habeas petition for failure to comply with the statute of limita-
tions. Espinoza-Matthews v. California, 432 F.3d 1021, 1025
(9th Cir. 2005). A district court’s findings of fact underlying
a claim for tolling the limitations period are reviewed for clear
error. Id.
B
Rasberry contends that an extraordinary circumstance stood
in the way of the pursuit of his rights, thereby warranting
equitable tolling of the statute of limitations.1
[1] Our precedent permits equitable tolling of the one-year
statute of limitations on habeas petitions, but the petitioner
bears the burden of showing that equitable tolling is appropri-
ate. Espinoza-Matthews, 432 F.3d at 1026. The petitioner
must establish two elements: “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circum-
stance stood in his way.” Pace v. DiGuglielmo, 125 S. Ct.
1807, 1814 (2005).
We need not address the diligence element because we con-
clude that no extraordinary circumstance stood in Rasberry’s
way. Rasberry argues that district courts have an obligation to
notify a pro se petitioner of the right to amend a habeas peti-
tion to include exhausted claims that the petitioner omitted
1Rasberry contends also that he is entitled to statutory tolling for the
period between direct appeal and commencing his state petition for post-
conviction relief. This argument is foreclosed by circuit precedent. See
Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (“AEDPA’s statute
of limitations is not tolled from the time a final decision is issued on direct
state appeal and the time the first state collateral challenge is filed because
there is no case ‘pending’ during that interval.”).
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from the habeas petition—if it is apparent from the record that
the petitioner meant to include the claims. According to Ras-
berry, it is irrelevant whether the habeas petition itself demon-
strates an intent to include the omitted claims. Thus, Rasberry
contends, the district court’s failure to notify him of this right
to amend constitutes an extraordinary circumstance. We dis-
agree.
[2] The notice to which Rasberry claims entitlement is
unworkable. Rasberry requests that the district court be obli-
gated to (1) intuit the fact that Rasberry unintentionally omit-
ted a claim from his federal habeas petition; (2) notify
Rasberry of this omission; (3) advise Rasberry to amend his
habeas petition to include the omitted claim, thereby making
it a mixed petition; (4) advise Rasberry to again amend his
petition to exclude all unexhausted claims; (5) advise Ras-
berry to request that the court hold his exhausted claim in
abeyance while he exhausts his other claims; and, finally, (6)
advise Rasberry to amend his petition to add the newly
exhausted claims. Such a notice requirement would not only
convert the judge into the petitioner’s private counsel, but
would also require the judge to guess what claims pro se peti-
tioners had actually intended to include in their petitions.
[3] Additionally, such a notice requirement would run
counter to the Supreme Court’s holding in Pliler v. Ford, 542
U.S. 225, 231 (2004). In Pliler, the Court reversed our deci-
sion requiring district judges to warn pro se petitioners with
mixed petitions that their federal claims would be time-barred
upon their return to federal court. Id. The Court reasoned that
“[d]istrict judges have no obligation to act as counsel or par-
alegal to pro se litigants,” and that requiring the warning
“would force upon district judges the potentially burdensome,
time-consuming, and fact-intensive task of making a case-
specific investigation and calculation of whether the AEDPA
limitations period has already run or will have run by the time
the petitioner returns to federal court.” Id.
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[4] District courts have the discretion to hold a mixed peti-
tion in abeyance pending exhaustion of the unexhausted
claims. Rhines v. Weber, 125 S. Ct. 1528, 1535 (2005). We
decline to extend that rule to the situation where the original
habeas petition contained only unexhausted claims, but the
record shows that there were exhausted claims that could have
been included. Such an extension would result in a heavy bur-
den on the district court to determine whether a petitioner who
files a petition that on its face is unexhausted may have other
exhausted claims that could have been raised. Once a district
court determines that a habeas petition contains only unex-
hausted claims, it need not inquire further as to the petition-
er’s intentions. Instead, it may simply dismiss the habeas
petition for failure to exhaust. See Jiminez v. Rice, 276 F.3d
478, 481 (9th Cir. 2001) (“Once [Appellee] moved for dis-
missal, the district court was obliged to dismiss immediately,
as the petition contained no exhausted claims.” (quotation
marks and citation omitted)).
[5] Moreover, Rasberry’s inability correctly to calculate the
limitations period is not an extraordinary circumstance war-
ranting equitable tolling. Although we have yet to consider
whether a pro se petitioner’s ignorance of the law is an
extraordinary circumstance, other circuits have held that it is
not. See, e.g., Allen v. Yukins, 366 F.3d 396, 403 (6th Cir.
2004) (“[T]his court has repeatedly held that ignorance of the
law alone is not sufficient to warrant equitable tolling.” (quo-
tation marks and citation omitted)); United States v. Sosa, 364
F.3d 507, 512 (4th Cir. 2004) (“[E]ven in the case of an
unrepresented prisoner, ignorance of the law is not a basis for
equitable tolling.”); Marsh v. Soares, 223 F.3d 1217, 1220
(10th Cir. 2000) (“[I]t is well established that ignorance of the
law, even for an incarcerated pro se petitioner, generally does
not excuse prompt filing.” (quotation marks and citation omit-
ted)); Felder v. Johnson, 204 F.3d 168, 171-72 n.10 (5th Cir.
2000) (“Our conclusion that Felder’s unawareness of
AEDPA’s requirements is insufficient to warrant tolling is
also consistent with the determinations of other courts that
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have faced similar claims.”). We now join our sister circuits
and hold that a pro se petitioner’s lack of legal sophistication
is not, by itself, an extraordinary circumstance warranting
equitable tolling. Therefore, Rasberry is not entitled to equita-
ble tolling.
C
Rasberry contends that even if equitable tolling does not
apply, his current habeas petition is timely nonetheless
because it is a mere amendment of his first habeas petition.
Thus, he argues the 2001 habeas petition relates back to the
timely filed 2000 petition pursuant to Federal Rule of Civil
Procedure 15(c).
[6] Under Rule 15(c)(2), an amended habeas petition may
relate back to the date when the original petition was filed.
See Mayle v. Felix, 125 S. Ct. 2562, 2569 (2005) (noting that
Rule 15(c) applies to habeas petitions). In non-AEDPA cases,
we have held that relation back is not available where the dis-
trict court dismissed the original habeas petition. For example,
in Henry v. Lungren, the petitioner sought to avoid the “in
custody” habeas requirement by having his current petition
(filed when he was not in custody) relate back to his previous
habeas petition (filed when he was in custody). 164 F.3d
1240, 1241 (9th Cir. 1999). We concluded that the relation
back doctrine does not apply where the previous habeas peti-
tion was dismissed because there is nothing to which the new
petition could relate back. Id.; see also Warren v. Garvin, 219
F.3d 111, 114 (2d Cir. 2000) (“[T]he ‘relation back’ doctrine
is inapplicable when the initial habeas petition was dismissed,
because there is no pleading to which to relate back.” (citation
omitted)); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.
2000) (“We therefore join with all the circuit courts which
have addressed this issue, and hold that a habeas petition filed
after a previous petition has been dismissed without prejudice
for failure to exhaust state remedies does not relate back to
the earlier petition.”).
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Rasberry contends that the Ninth Circuit has adopted a con-
trary rule permitting relation back to a habeas petition previ-
ously dismissed as untimely under AEDPA. As support, he
cites to Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir.
2000), where we concluded that the district court did not err
in relating a second habeas petition back to a dismissed first
petition. However, in Anthony the district court exercised its
equitable power to accept the new petition nunc pro tunc to
the date of the original habeas filing—the district court had
mistakenly dismissed the first petition, so it corrected the mis-
take by relating the second petition back to the first. Id.
Anthony does not stand for the proposition that a second
habeas petition can relate back to a previously dismissed first
petition, but merely endorsed the district court’s exercise of
its equitable power to correct a mistake. Anthony does not
extend beyond that context.
[7] Accordingly, we hold that a habeas petition filed after
the district court dismisses a previous petition without preju-
dice for failure to exhaust state remedies cannot relate back to
the original habeas petition. This holding does not limit the
district court’s equitable power to correct mistakes.
[8] Under this rule, Rasberry’s second petition does not
relate back to his earlier petition. The district court dismissed
the original petition without prejudice for failing to exhaust
state remedies. Rasberry failed in his attempt to reopen that
judgment through a Rule 60(b) motion. Rasberry v. Garcia,
72 Fed. Appx. 571 (9th Cir. 2003). Thus, Rasberry cannot
employ Rule 15(c) to relate his second habeas petition back
to the first.
III
We AFFIRM the district court’s dismissal as untimely of
Rasberry’s habeas petition.
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