and Submitted December 6, 2016 Pasadena, California
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
Faryar Farmani (argued), Farmani APLC, San Diego, California,
Vienna (argued) and Mathew Mulford, Deputy Attorneys General;
Julie L. Garland, Senior Assistant Attorney General; Office
of the Attorney General, San Diego, California; for
Before: Stephen Reinhardt, A. Wallace Tashima, and Richard A.
Paez, Circuit Judges.
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
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.
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
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.
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
REINHARDT, Circuit Judge.
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.
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
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
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. 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
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.
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
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 ...