Smith v. Davis, No. 17-15874 (9th Cir. 2020)
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The en banc court affirmed the district court's denial of a habeas corpus petition as untimely. Petitioner argued that he was entitled to extend the one-year limitations period set forth in 28 U.S.C. 2244(d)(1) by equitable tolling for the 66 days between the date his conviction became final in the state appellate court and the date when his attorney informed him of that unsuccessful appeal and provided him with the state appellate record.
The en banc court held that petitioner failed to exercise reasonable diligence during the 10 months available after he received his record from his attorney and before the time allowed by the statute of limitations expired.
In view of the historic practice of courts of equity and modern Supreme Court precedent governing equitable tolling, the en banc court made two related holdings. First, for a litigant to demonstrate "he has been pursuing his rights diligently," and thus satisfies the first element required for equitable tolling, he must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court. Second, and relatedly, it is only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing that equitable tolling may be the proper remedy. In this case, the en banc court held that petitioner was not entitled to relief.
Court Description: Habeas Corpus. The en banc court affirmed the district court’s denial of California state prisoner Anthony Smith’s habeas corpus petition as untimely, in a case in which Smith argued that he was entitled to extend the one-year limitations period set forth in 28 U.S.C. § 2244(d)(1) by equitable tolling for the 66 days between the date his conviction became final in the state appellate court and the date when his attorney informed him of that unsuccessful appeal and provided him with the state appellate record. The en banc court affirmed because Smith failed to exercise reasonable diligence during the 10 months available after he received his record from his attorney and before the time allowed by the statute of limitations expired. In view of the historic practice of courts of equity and modern Supreme Court precedent governing equitable tolling, the en banc court made two related holdings. First, for a litigant to demonstrate he has been pursuing his rights diligently, and thus satisfies the first element required for equitable tolling, he must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court. In so holding, the en banc court rejected the “stop-clock” approach under SMITH V. DAVIS 3 which whenever a petitioner is impeded from filing his petition by extraordinary circumstances while the time period of a statute of limitations is running out, he may add the time during which he was so impeded to extend the limitations period, regardless whether he was reasonably diligent in filing his petition after the impediment was removed. Second, it is only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing that equitable tolling may be the proper remedy. In evaluating whether an extraordinary circumstance stood in a petitioner’s way and prevented timely filing, a court is not bound by mechanical rules and must decide the issue based on all the circumstances of the case before it. Applying this framework to Smith’s petition, the en banc court accepted Smith’s allegations as true and assumed that his attorney’s failure to contact him for five months after his state appeal was denied was sufficiently egregious so that it could qualify as an “extraordinary circumstance” that created an impediment to filing under the second required element for equitable tolling. The en banc court nevertheless concluded that Smith did not exercise the necessary diligence to satisfy the first element because when given the opportunity to explain how he had used his time diligently after receiving his file from his attorney, Smith made no allegation or claim in his opposition to the motion to dismiss or his supporting declaration that he had acted diligently but had not been able to file earlier. Dissenting, Judge Berzon, joined by Chief Judge Thomas and Judges Murguia, Watford, and Hurwitz, wrote that the central problem with the majority’s approach 4 SMITH V. DAVIS concerns its substitution of its own determination of the time needed to file for Congress’s clear prescription that petitioners are to be given 365 days to draft and file a federal habeas petition.
This opinion or order relates to an opinion or order originally issued on October 17, 2018.
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