458 F. App'x 627
9th Cir.2011Background
- Stonebarger appeals the district court's dismissal of his federal habeas petition as untimely under 28 U.S.C. § 2244(d).
- He argues he is entitled to equitable tolling for a 630-day period due to his attorney's alleged egregious representation.
- Nevada Supreme Court finalized its denial of his first state habeas petition on February 8, 2005, and his second state petition was denied on November 7, 2006.
- He suggested that he could have filed a timely federal habeas petition and sought a stay while pursuing state remedies.
- The district court and the Ninth Circuit found no basis for equitable tolling for the 630-day period or for tolling based on other periods.
- The court denied a certificate of appealability (COA) on the claims of actual innocence and statutory tolling under 28 U.S.C. § 2244(d)(1)(B) and (D), and affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable tolling applies to the 630-day period. | Stonebarger contends extraordinary circumstances caused delay. | Respondents argue no tolling since petitioner failed to show cause for delay. | No equitable tolling for the 630-day period. |
| Whether Stonebarger is entitled to equitable tolling for two earlier time periods. | Stonebarger asserts tolling due to earlier conduct. | Respondents dispute tolling for the earlier periods. | Court implies no view on this point; harmless to address. |
| Whether actual innocence warrants expanding the COA or excusing timeliness. | Stonebarger asserts actual innocence would excuse the untimeliness. | No credible showing of actual innocence exists. | No COA for actual innocence; record does not show credible innocence. |
| Whether statutory tolling under 28 U.S.C. § 2244(d)(1)(B) and (D) would render the petition timely. | Stonebarger claims state action or newly discovered DNA evidence tolling. | No basis for tolling on these grounds. | No COA for statutory tolling; arguments not reasonably debatable. |
Key Cases Cited
- Pace v. DiGuglielmo, 544 U.S. 408 (U.S. 2005) (stay-and-abeyance as a remedy under equitable tolling doctrine)
- Waldron-Ramsey v. Pacholke, 556 F.3d 1008 (9th Cir. 2009) (review of equitable tolling with disputed facts for clear error)
- Randle v. Crawford, 604 F.3d 1047 (9th Cir. 2010) (extraordinary circumstances required to toll for attorney error)
- Lott v. Mueller, 304 F.3d 918 (9th Cir. 2002) (extraordinary circumstances must prevent timely filing)
- Miles v. Prunty, 187 F.3d 1104 (9th Cir. 1999) (standards for de novo review of equitable tolling when facts undisputed)
- Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003) (standard for reviewing timing and tolling issues on appeal)
- Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010) (tolling analysis for disputed timing questions)
- Buckley v. Terhune, 441 F.3d 688 (9th Cir. 2006) (emphasizes deferential approach to habeas timing issues)
- Hivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (requires substantial showing for COA on uncertified issues)
- Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc; credibility standard for actual innocence)