James Darryl Allen, Petitioner-appellant, v. Gail Lewis, Warden, Respondent-appellee, 255 F.3d 798 (9th Cir. 2001)

Per Curiam

James Allen was convicted in state court of robbery in violation of California law. His conviction became final on December 10, 1996. He filed a state habeas petition on October 30, 1997, which was denied on November 24, 1998. He filed his federal habeas petition pro se on January 20, 1999, which the district court dismissed as untimely, and Allen appeals.

Allen's federal habeas petition was due within one year from the time his state conviction became final. 28 U.S.C. § 2244(d) (1). Yet, the district court found that 771 days--over two years--elapsed between the date his conviction became final, December 10, 1996, and the date he submitted his federal habeas petition, January 20, 1999. Although the district court subtracted 390 days from this period because the statute of limitations was tolled while Allen's state habeas petition was pending, see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), this still left 381 days during which Allen had not submitted his federal habeas petition, which is sixteen days beyond the one-year statute of limitations. Allen does not dispute these calculations.

Rather, Allen argues that the statute of limitations should have been equitably tolled for an additional 27 days during which he was transferred between state prisons and lost access to all of his property, including legal and non-legal materials necessary to the preparation of his habeas petition.

In order to win equitable tolling, a prisoner must demonstrate 1) "extraordinary circumstances beyond [the] prisoner's control" that 2) "ma [de] it impossible to file a petition on time." Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (internal quotation marks omitted).¹  Although a transfer between prisons is not especially unusual, Allen's transfer was certainly beyond his control, and, therefore, it is possible that he meets the first requirement of the Beeler test.²  Nonetheless, we need not decide whether he meets the first requirement because he cannot meet the second requirement.

Although we have not yet had an occasion to describe the showing a prisoner must make in order to demonstrate that the "extraordinary circumstances" made it"impossible to file a petition on time," the other two Circuits that have considered the question have held that, at the very least, the prisoner must show that the "extraordinary circumstances " were the but-for and proximate cause of his untimeliness. Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (holding that the prisoner is required "to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing"); Marsh v. Soares, 223 F.3d 1217, 1221 (10th Cir. 2000) (rejecting equitable tolling claim because, even if temporary closure of prison library constituted extraordinary circumstances, prisoner "has not shown how this lack of access caused his delay in filing"). We find these holdings persuasive and we follow them. It will normally be much more difficult for a prisoner to demonstrate causation where he encounters the "extraordinary circumstances" in the beginning or middle of the limitations period than where he encounters them at the end of limitations period. This is the case because, if the prisoner is diligently pursuing his habeas petition, the one-year limitations period will ordinarily give him ample opportunity to overcome such early obstacles. Valverde, 224 F.3d at 134 ("If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken . . . ."); Fisher v. Johnson, 174 F.3d 710, 715-16 (5th Cir. 1999) (rejecting equitable tolling claim because prisoner "still had over six months to complete his federal habeas petition after his return to his usual quarters" and noting that, " [i]f this event had occurred shortly before the required filing, Fisher would have a stronger case").

In this case, Allen produced no evidence demonstrating that the loss of access to his habeas materials for 27 days due to his prison transfer made it impossible for him to file his federal habeas petition 16 days earlier. The prison transfer began on January 9, 1997, and ended on February 6, 1997. The statute of limitations began to run when his state conviction became final, on December 10, 1996. Thus, the transfer began a mere one month into limitations period. This left Allen with the better part of the limitations period in which he could have filed his federal petition uninhibited by the prison transfer. It is clear that any effect the prison transfer had on the preparation of his habeas materials was dissipated during these many months. Marsh, 223 F.3d at 1221 (holding that causation was not demonstrated where prisoner claimed equitable tolling on the basis of the closure of the law library for 15 days, even though the closure took place near the end of the limitations period); Fisher, 174 F.3d at 715-16 (holding that causation was not demonstrated where prisoner"still had over six months to complete his federal habeas petition" after the termination of the allegedly extraordinary circumstances).

AFFIRMED.