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Grant v. Swarthout

United States Court of Appeals, Ninth Circuit

July 7, 2017

Willie Ulysess Grant, Petitioner-Appellant,
v.
Gary Swarthout, Warden; Xavier Becerra, Attorney General, Respondents-Appellees.

          Argued and Submitted December 6, 2016 Pasadena, California

         Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding D.C. No. 3:11-cv-03015-JAH-JMA

          Tony Faryar Farmani (argued), Farmani APLC, San Diego, California, for Petitioner-Appellant.

          Kevin Vienna (argued) and Mathew Mulford, Deputy Attorneys General; Julie L. Garland, Senior Assistant Attorney General; Office of the Attorney General, San Diego, California; for Respondents-Appellees.

          Before: Stephen Reinhardt, A. Wallace Tashima, and Richard A. Paez, Circuit Judges.

         SUMMARY [*]

         Habeas Corpus

         The panel reversed the district court's order dismissing as untimely California state prisoner Willie Ulysses Grant's federal habeas corpus petition, and remanded for further proceedings, in a case involving a prisoner's right to equitable tolling for the period during which he was prevented from completing his federal habeas petition by an extraordinary circumstance.

         The panel held that a petitioner is entitled to use the full one-year statute-of-limitations period for the filing of his state and federal habeas petitions and that he need not anticipate the occurrence of circumstances that would otherwise deprive him of the full 365 days that Congress afforded him for the preparation and filing of his petitions. The panel therefore held that it was improper for the district court to fault the petitioner for filing his state petition for postconviction relief late in the statute-of-limitations period in reliance on his having a full year to file both his state and federal petitions, as promised by AEDPA.

         The panel held that Grant exercised reasonable diligence during the 20-odd day duration of an extraordinary circumstance, where he requested from the prison trust office, on the day he received notice of the California Supreme Court's denial of his state postconviction petition, the prison account certificate required to file a federal habeas petition in forma pauperis and filed a second request when he did not hear back from prison officials for two weeks. Because it is obvious that Grant was diligent after he received the prison account certificate, the panel did not resolve whether a petitioner needs to prove that he was diligent after the extraordinary circumstance has ended.

         The panel disagreed with the state that Grant did not experience an extraordinary circumstance sufficient to justify tolling. The panel wrote that where a prisoner is dependent on prison officials to complete a task necessary to file a federal habeas petition and the staff fails to do so promptly, this constitutes an extraordinary circumstance.

         The panel concluded that Grant is entitled to equitable tolling from the time he requested the prison account certificate until he received the certificate, and that his petition was therefore timely.

          OPINION

          REINHARDT, Circuit Judge.

         This case involves a prisoner's right to equitable tolling for the period during which he was prevented from completing his federal petition for habeas corpus by an "extraordinary circumstance." If equitable tolling applies, his habeas petition is timely. If it doesn't, he will likely spend the rest of his life in prison.

         FACTS

         Willie Ulysess Grant was found guilty of committing first-degree murder, including an enhancement for personally using a firearm in the commission of the crime, on December 14, 2006. He was sentenced to two consecutive terms of twenty-five years to life. The California Court of Appeal affirmed his sentence on September 16, 2008. The California Supreme Court denied his petition for review on December 10, 2008. Grant timely filed a petition for certiorari, which was denied by the U.S. Supreme Court on October 5, 2009. On that date, the one-year statute of limitations for filing a federal habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") began to run. 28 U.S.C. § 2244(d)(1). Grant was also required to file any petition for state collateral review within that one-year period, but the running of the period was statutorily tolled while the state courts were actively processing his petitions.

         On September 25, 2010, 354 days after his petition for certiorari was denied, Grant constructively filed a pro se petition for state postconviction relief with the San Diego County Superior Court. This filing commenced the statutory tolling of the AEDPA statute of limitations. Id. § 2244(d)(2). Grant's state postconviction relief efforts continued until November 16, 2011, when the California Supreme Court denied his state habeas petition. This decision ended the period of statutory tolling.[1]

         Grant received notice that his state petition had been denied five days later, on November 21, 2011. At that time, there were seven days remaining in Grant's one-year filing period under AEDPA.[2] Grant then "immediately requested a 'prison account certificate' from the prison trust office, " on November 21. This certificate was required in order to file a federal habeas petition in forma pauperis. See Rules Governing Section 2254 Cases in the United States District Courts, R. 3(a)(2) (requiring a motion, affidavit, and "certificate from the warden or other appropriate officer of the place of confinement showing the amount of money" in the petitioner's prison account in order to proceed in forma pauperis). The certificate was issued to Grant's correction counselor on December 2, 2011. According to Grant, this delay "was because of the Thanksgiving holiday weekend." Grant finally received the certificate from his counselor on December 19.[3] Grant constructively filed his federal pro se petition for a writ of habeas corpus on that same day. Along with his petition, he filed the required declaration and prison certificate to proceed in forma pauperis. The state moved to dismiss the petition, arguing that it was untimely under AEDPA's one-year statute of limitations. Grant contends that the period of time between November 21, when he requested the prison account certificate, and December 19, the date on which he received it, was equitably tolled. If he is correct, his federal habeas petition was timely filed.

         The district court adopted the report and recommendation of the magistrate judge, which recommended that the petition be dismissed as untimely. It held that Grant was not entitled to equitable tolling because he had not shown that he was diligent throughout the entire 354 days prior to his filing of his state petition for postconviction relief and that such a showing was necessary to warrant equitable tolling.[4]

         DISCUSSION

         Under AEDPA, state prisoners have a one-year statutory period to file a federal application for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). This period is in effect a statute of limitations that ...


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