Lue Thao v. Clark Ducart
707 F. App'x 437
| 9th Cir. | 2017Background
- Thao, a California state prisoner, filed a federal habeas petition that was approximately 13 days late under AEDPA’s one-year limitations period.
- Thao appealed the district court’s dismissal of his petition as untimely and claimed entitlement to equitable tolling.
- Thao contended his post-conviction counsel misinformed him about the filing deadline and that he lacked access to legal materials during the month before the deadline.
- The Magistrate Judge had set an appeal deadline; Thao’s Notice of Appeal was delivered to prison mail on November 27, 2015 and filed December 2, 2015 — the court deemed the appeal timely under the mailbox rule.
- The district court denied equitable tolling; the Ninth Circuit affirmed, concluding neither counsel’s miscalculation nor limited law-library access during the final month constituted an extraordinary circumstance.
Issues
| Issue | Thao's Argument | Respondent's Argument | Held |
|---|---|---|---|
| Whether Thao is entitled to equitable tolling of AEDPA’s one-year statute of limitations | Counsel’s erroneous deadline and lack of law-library access in the final month made timely filing impossible | Miscalculation by counsel and ordinary library restrictions are not extraordinary; Thao had a year to prepare | Denied — neither attorney error nor a one-month restriction on library access constitutes an extraordinary circumstance to justify equitable tolling |
| Whether appeal was timely | Notice of Appeal was delivered to prison mail before the deadline (mailbox rule) | Filing in district court was after the Magistrate’s date | Timely — Notice of Appeal deemed filed on date delivered to prison mail under the mailbox rule |
Key Cases Cited
- Davis v. Woodford, 446 F.3d 957 (9th Cir. 2006) (prisoner mailbox rule for filings)
- Okafor v. United States, 846 F.3d 337 (9th Cir. 2017) (elements for equitable tolling: diligence and extraordinary circumstance)
- Fue v. Biter, 842 F.3d 650 (9th Cir. 2016) (diligence requirement analyzed en banc)
- Kwai Fun Wong v. Beebe, 732 F.3d 1030 (9th Cir. 2013) (attorney miscalculation is garden-variety excusable neglect, not extraordinary)
- United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015) (Supreme Court decision addressing related procedural issues)
- Ramirez v. Yates, 571 F.3d 993 (9th Cir. 2009) (normal delays/restrictions on library access not extraordinary)
- Sossa v. Diaz, 729 F.3d 1225 (9th Cir. 2013) (contrast where prolonged denial of library access supported tolling)
- Ford v. Pliler, 590 F.3d 782 (9th Cir. 2009) (lack of legal sophistication alone does not warrant equitable tolling)
- Stewart v. Cate, 757 F.3d 929 (9th Cir. 2014) (evidentiary hearing warranted when good-faith allegation could entitle petitioner to tolling)