United States v. 2005-08-16 | 03-16932 | JEFFERSON VBUDGE | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 WILLIE LEE JEFFERSON, No. 03-16932
Petitioner, D.C. No.
v.  CV-02-00023-DWH
MIKE BUDGE, OPINION
Respondent. 
Appeal from the United States District Court
for the District of Nevada
David Warner Hagen, District Judge, Presiding
Submitted July 11, 2005*
San Francisco, California
Filed August 16, 2005
Before: Sidney R. Thomas, Barry G. Silverman, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Silverman
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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COUNSEL
Willie Lee Jefferson, pro se, Carson City, Nevada, petitioner-
appellant.
John Warwick, Deputy Attorney General, Carson City,
Nevada, for the respondents-appellees.
OPINION
SILVERMAN, Circuit Judge:
We hold today that it is error for a district court to dismiss
a mixed habeas petition without first offering the petitioner
the options provided in Rose v. Lundy, 455 U.S. 509 (1982).
If such an error occurs, the petitioner is entitled to equitable
tolling of the AEDPA statute of limitations from the date the
mixed petition was dismissed until the date a new federal
habeas petition is filed, assuming ordinary diligence.
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I. INTRODUCTION
A. Background and jurisdiction
Willie Lee Jefferson, a Nevada state prisoner, appeals pro
se the district court’s order dismissing as untimely his 28
U.S.C. § 2254 habeas petition filed in 2002 challenging his
1992 conviction for burglary, robbery with use of a weapon,
battery, and attempted sexual assault. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we reverse and remand.1
B. Facts
On December 21, 1992, a Nevada jury convicted Jefferson
of three counts of robbery with use of a deadly weapon and
one count each of burglary, battery with use of a deadly
weapon, and attempted sexual assault with a deadly weapon.
Jefferson’s first full round of state collateral proceedings
became final on July 1, 1999.
Jefferson filed a timely federal habeas petition on February
10, 2000. The district court granted respondent’s motion to
dismiss, finding that Jefferson’s petition contained both
exhausted and unexhausted claims. Judgment dismissing Jef-
ferson’s entire federal petition without prejudice issued the
same day, March 20, 2001.2 Jefferson filed a motion for
1Appellee contends that Jefferson waived the sole issue certified on
appeal because he failed to address it in his opening brief. See, e.g., United
States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (recognizing that in gen-
eral the court declines to reach any issue not raised in an appellant’s open-
ing brief). Because we find that a number of the exceptions to that rule
apply here, including that there is no prejudice to appellee and that appel-
lee was on notice of the certified issue and had a full opportunity to pre-
sent argument on the issue, we exercise our discretion to consider the mer-
its of the certified issue. See Koerner v. Grigas, 328 F.3d 1039, 1048-49
(9th Cir. 2003).
2The one-year statute of limitations had run by this date. Because Jeffer-
son’s conviction became final before the AEDPA was enacted, he had
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reconsideration on April 3, 2001, which the district court
denied on October 15, 2001.
Jefferson returned to state court, filing a “Petition for Writ
of Certiorari or in the Alternative Petition for Writ of Manda-
mus” on November 20, 2001. The Nevada Supreme Court
denied the petition a month later on December 20, 2001. A
notice in lieu of remittitur issued on January 15, 2002.
Jefferson filed the instant federal habeas petition and
request to proceed in forma pauperis on January 14, 2002. On
March 25, 2002, the district court denied Jefferson’s IFP
request and ordered him to pay the $5.00 filing fee. The court
further stated that, until Jefferson paid the filing fee, the court
clerk would retain, but not file, his habeas petition. On April
8, 2002, the court received Jefferson’s filing fee. On May 3,
2002, the court determined that Jefferson’s petition failed to
contain sufficient facts to support his allegations of constitu-
tional error, and ordered him to file an amended petition
within 30 days of the date of the order. Jefferson filed his
amended petition on May 17, 2002.
The district court dismissed Jefferson’s petition as untimely
under the statute of limitations established by the Antiterro-
rism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2244(d)(1)(A), and entered judgment the same day. Jeffer-
son timely appealed. The district court construed Jefferson’s
notice of appeal as a request for a certificate of appealability
and denied the request. On appeal, we granted a certificate of
appealability on the issue of “[w]hether, in light of Smith v.
until April 24, 1997 to file a timely petition, absent tolling. See Bunney v.
Mitchell, 262 F.3d 973, 974 (9th Cir. 2001) (per curiam). Jefferson was
properly pursuing his state post-conviction remedies from 1995 until July
1, 1999, when the Nevada Supreme Court issued its remittitur; all of this
time was tolled pursuant to 28 U.S.C. § 2244(d)(2). The one-year clock
started ticking for Jefferson on July 2, 1999, and expired on July 1, 2000.
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Ratelle, 323 F.3d 813 (9th Cir. 2003), appellant’s habeas peti-
tion related back to his previously dismissed petition.”
II. ANALYSIS
The district court determined that Jefferson’s federal
habeas petition filed in 2000 was a mixed petition because it
raised three exhausted claims and several unexhausted claims.
Relying on Rose v. Lundy, 455 U.S. 509 (1982), the court dis-
missed Jefferson’s petition without prejudice and entered final
judgment. The court, however, failed to first give Jefferson
the choice of exhausting his unexhausted claims by returning
to state court, or abandoning those claims and pursuing the
remaining exhausted claims in federal court.
[1] In Rose v. Lundy, the Supreme Court held that a mixed
petition, i.e., a petition raising both exhausted and unex-
hausted claims, must be dismissed for failure to completely
exhaust available state remedies. 455 U.S. at 518-22 (holding
that for reasons of comity and federalism, the state court must
be given the first opportunity to decide a state habeas petition-
er’s claims). The Court instructed, however, that the district
courts must give a petitioner “the choice of returning to state
court to exhaust his claims or of amending or resubmitting the
habeas petition to present only exhausted claims to the district
court.” Id. at 510. This Court, applying Rose, has long held
that “outright dismissal without leave to amend of the peti-
tioner’s federal habeas petition was improper,” and “that dis-
trict courts must provide habeas litigants with the opportunity
to amend their mixed petitions by striking their unexhausted
claims.” Tillema v. Long, 253 F.3d 494, 503 (9th Cir. 2001)
(internal quotation marks omitted); see also Anthony v. Cam-
bra, 236 F.3d 568, 574 (9th Cir. 2000).
Relying on Pliler v. Ford, 542 U.S. 225, 124 S. Ct. 2441
(2004), appellee contends that the Supreme Court has since
abrogated the Rose requirement. See id. at 2446 (“District
judges have no obligation to act as counsel or paralegal to pro
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se litigants.”). A close reading of Ford does not support the
expansive reading appellee urges. In Ford, the Supreme Court
decided “whether the District Court erred by dismissing, pur-
suant to Rose, a pro se habeas petitioner’s two habeas peti-
tions without giving him two particular advisements.” 124
S. Ct. at 2444 (emphasis added). The advisements at issue in
Ford were: (1) that the district court “would not have the
power to consider a prisoner’s motions to stay the mixed peti-
tions unless he opted to amend them and dismiss the then-
unexhausted claims,” and (2) “that a prisoner’s federal claims
would be time-barred, absent cause for equitable tolling, upon
his return to federal court if he opted to dismiss the petitions
without prejudice and return to state court to exhaust all of his
claims.” Id. at 2445-46 (alterations, citations, and quotation
marks omitted). These advisements were crafted by this Court
to employ the stay-and-abeyance procedure and supplement
the Rose requirement.3
The Supreme Court was clear in announcing its holding
that “district courts are not required to give the particular
advisements required by the Ninth Circuit before dismissing
a pro se petitioner’s mixed habeas petition under Rose.” Id. at
2447; see also id. at 2446, 2448 (O’Connor, J., concurring).
The Rose requirement, however, remains intact. See Rhines v.
Weber, ___ U.S. ___, 125 S. Ct. 1528, 1535 (2005) (“[I]f a
petitioner presents a district court with a mixed petition . . .
the court should allow the petitioner to delete the unexhausted
claims and to proceed with the exhausted claims if dismissal
of the entire petition would unreasonably impair the petition-
er’s right to obtain federal relief.”) (citing Rose, 455 U.S. at
520).
[2] Rose mandates that a district court must dismiss mixed
petitions and leave petitioners with a choice of paths to pur-
3The petitioner in Ford was given the option to return to state court to
exhaust his unexhausted claims or to proceed only with the exhausted
claims prior to dismissal of his petitions. Id. at 2444.
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sue. Rose, 455 U.S. at 510. Ford reiterates this dictate by
quoting directly from Rose, 124 S. Ct. at 2447, and Rhines
follows suit, 125 S. Ct. at 1535. When the district court dis-
missed Jefferson’s 2000 petition and entered final judgment,
it failed to first give Jefferson the choice of exhausting the
unexhausted claim by returning to state court, or abandoning
the claim and pursuing the remaining claims in federal court,
as required by Rose. Because the district court dismissed Jef-
ferson’s 2000 petition outright and entered judgment the same
day, Jefferson did not have an opportunity to amend this
timely federal petition and let the unexhausted claims fall by
the wayside.4
[3] We previously have held that “a district court’s errone-
ous dismissal of a mixed habeas petition is sufficiently
extraordinary to justify equitable tolling.” Smith v. Ratelle,
323 F.3d 813, 819 (9th Cir. 2003), cert. denied, 124 S. Ct.
2904 (2004). In this case, Jefferson returned to federal court
within a reasonable period of time. We conclude that Jeffer-
son is entitled to equitable tolling of the one-year AEDPA
statute of limitations from the date the first habeas petition
was dismissed until the date he filed his second habeas peti-
tion, and remand to the district court for further proceedings
consistent with this disposition.
The remaining issues Jefferson raises on appeal are without
merit, including his request that his case be reassigned to a
new judge on remand. “Absent proof of personal bias on the
part of the district judge, remand to a different judge is proper
only under unusual circumstances.” Hunt v. Pliler, 384 F.3d
4Moreover, at the time the district court dismissed Jefferson’s 2000 peti-
tion and entered judgment, the AEDPA statute of limitations had run. See
supra n. 2. As a result, even if Jefferson had filed a fully-exhausted peti-
tion on the same day as the dismissal, it would have been untimely. When
it dismissed Jefferson’s petition, the court “literally and immediately
extinguished his right to federal habeas review.” Tillema, 253 F.3d at 504.
The district court’s dismissal “unreasonably impair[ed] petitioner’s right
to obtain federal relief.” Rhines, 125 S. Ct. at 1535.
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1118, 1125-26 (9th Cir. 2004) (quoting United States v.
Reyes, 313 F.3d 1152, 1159 (9th Cir. 2002)). There is no evi-
dence before us to warrant reassignment upon remand. See id.
at 1126 (discussing factors court should consider, including
whether the original judge would have substantial difficulty
adjudicating the case with a fresh view of the issues, to pre-
serve the appearance of justice, and whether reassignment
would result in waste or duplication of effort out of proportion
with any gain in appearance of fairness).
REVERSED and REMANDED.
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