Lead Opinion
Richard Herman Ford, a California prisoner, appeals the district court’s dismissal of his two habeas corpus petitions as time-barred under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). Both federal habeas petitions were initially timely filed in the district court by Ford proceeding pro se; however, both were “mixed” petitions containing exhausted as well as unexhausted claims. Along with the mixed petitions, Ford filed motions to stay each of them while he exhausted the then-unexhausted claims in state court. The district court gave him the option with respect to both petitions of either dismissing the unex-hausted claims and proceeding only with the exhausted claims or dismissing the petitions without prejudice and re-filing after exhaustion of the unexhausted claims. The district court did not, however, inform Ford that it would not have the power to consider his motions to stay the petitions unless he opted to amend them and dismiss the then-unexhausted claims. See James v. Pliler,
Ford, still proceeding pro se, opted to have both petitions dismissed without prejudice and returned to state court to exhaust his remaining claims. When he refiled his claims in federal court after exhausting all of them, however, the district court dismissed his petitions as time-barred.
We conclude that the district court erred by failing to inform Ford (1) that it could consider his stay motions only if he opted to amend the petitions and dismiss the then-unexhausted claims, and (2) that his federal claims would be time-barred, absent cause for equitable tolling, upon his return to federal court if he opted to dismiss the petitions “without prejudice” and return to state court to exhaust all of his claims. Because Ford’s decision to have his timely-filed federal habeas petitions dismissed without prejudice was an uninformed one, we conclude that the district court’s dismissal of his initial federal habe-as petitions without prejudice constituted prejudicial error.
We next address the district court’s dismissal of Ford’s second federal habeas petitions as time-barred, hold that the claims that were included in his initial petitions and then re-asserted in his second petitions are not time-barred under AEDPA, and remand them for consideration on the merits. Specifically, we apply Federal Rule of Civil Procedure 15(c) to Ford’s second petitions and hold that the second petitions relate back to and preserve the filing date of the initial petitions. See Anthony v. Cambra,
With respect to the claims that were raised for the first time in Ford’s second habeas petitions, we affirm the district court’s dismissal of the two claims in the “Loguercio” case (No. CV 98-2557), but we vacate the dismissal of the five claims in the “Weed” case (No. CV 98-2556). We
I. Procedural Background
A. The Loguercio Case
On January 6, 1988, Richard Ford and Robert Anthony Yon Villas, both former Los Angeles police officers, were convicted of conspiring to murder John Loguercio and attempting to murder his wife in violation of California Penal Code §§ 182, 187, 664, and robbery, conspiracy to commit robbery, and assault with a firearm in violation of California Penal Code §§ 182, 211, 245(a)(2). Ford was also convicted of attempting to administer an intoxicating agent in violation of California Penal Code §§ 222, 664. On March 11, 1988, he was sentenced to thirty-six years to life in prison.
Ford appealed the judgment and, on October 9, 1992, the California Court of Appeal affirmed his conviction. He appealed to the California Supreme Court, but his petition for review was denied on January 14, 1993. He then filed a petition for a writ of certiorari in the United States Supreme Court, which was denied on June 14, 1993. See Ford v. California,
On April 19, 1997, Ford signed and delivered to the prison authorities a pro se federal habeas corpus petition. His petition was forwarded to the clerk and filed in the United States District Court for the Central District of California on May 5, 1997.
On September 29, 1997, Ford filed a state habeas corpus petition in the California Supreme Court. His petition was summarily denied on March 25, 1998. Ford then returned to federal court on April 7, 1998 and filed a second pro se federal habeas corpus petition in the district court.
On August 17, 1998, Ford filed a notice of appeal and moved for a certificate of appealability (“COA”). The district court denied his motion for a COA on August 25, 1998. Ford then sought a COA from this court and his motion was consolidated with a similar motion that he filed in the Weed case. See infra Section I.C.
B. The Weed Case
The procedural history of the Weed case is virtually identical. On October 11, 1988, Ford and Von Villas were convicted of first-degree murder and conspiracy to commit murder for killing Thomas Weed in violation of California Penal Code §§ 182, 187, 190.2(a)(1). After the jury dead-locked during the penalty phase of Ford’s trial, the trial court sentenced him to life without the possibility of parole on the murder count and stayed a concurrent term of twenty-five years to life on the conspiracy count.
Ford appealed the judgment and, on November 16, 1992, the California Court of Appeal affirmed his convictions. On February 11, 1993, the California Supreme Court issued a summary denial of Ford’s direct appeal. Ford filed a petition for a writ of certiorari in the United States Supreme Court, which was denied on October 4, 1993. See Ford v. California,
On April 19, 1997, Ford signed and delivered to the prison authorities a pro se federal habeas corpus petition. His petition was forwarded to the clerk and filed in the United States District Court for the Central District of California on May 5, 1997.
On October 24, 1997, Ford filed a state habeas corpus petition in the California Supreme Court. The petition was summarily denied on March 25, 1998. Ford then returned to federal court and, on April 7, 1998, he filed a second pro se federal habeas corpus petition in the district court.
On June 3, 1998, the magistrate judge issued his report recommending that Ford’s petition be dismissed with prejudice as untimely. On June 23, 1998, Ford filed an objection to the magistrate’s report. On June 30, 1998, the district judge adopted the magistrate’s findings, conclusions, and recommendations and dismissed
C. Consolidation of Cases
On January 22, 1999, we consolidated Ford's two cases-the Weed case and the Loguercio case-and granted his request for a COA on the question whether his federal habeas petitions were timely under AEDPA's one-year statute of limitations, 28 U.S.C. § 2254(d).
II. ANALYSIS
We review a district court's decision to dismiss a petition for a writ of habeas corpus, including a dismissal on timeliness grounds, de novo. See Miles v. Prunty,
Ford signed both of his initial federal habeas petitions on April 19, 1997, five days before his one-year statute of limitations would have run. The petitions were lodged as received by the district court on April 25, 1997 and subsequently filed on May 5, 1997. According to the prisoner's mailbox rule, Ford's petitions are deemed "filed" for purposes of AEDPA's statute of limitations the moment that he delivers them to the prison authorities for forwarding to the clerk of the district court. See, e.g., Huizar v. Carey,
A. The District Court's Failure to Inform Ford About its Ability to Consider his Stay Motions
Along with the habeas petitions, Ford filed motions asking the district court to stay the petitions on the exhausted claims while he returned to state court to exhaust the then-unexhausted claims. The district court correctly stated that it did not have the discretion to stay Ford's mixed petitions. See Rose,
In this case, however, the district court did not inform Ford, who was proceeding pro se at the time, about the highly technical requirement that he must first* dismiss the unexhausted claims and then renew the stay motions that he attempted to make prematurely, despite our past admonition that “[t]he rights of pro se litigants require careful protection where highly technical requirements are involved, especially when enforcing those requirements might result in the loss of the opportunity to prosecute or defend a lawsuit on the merits.” Garaux v. Pulley,
Here, there was a procedural deficiency — the filing of mixed habeas petitions — that prevented the district court from considering Ford’s stay motions. To correct that deficiency, Ford was required to amend his habeas petitions to dismiss the unexhausted claims and proceed with only the exhausted claims, and then seek a hearing on the motions to stay the exhausted claims. Given that Ford was proceeding pro se, the district court was obligated to inform him of his options with respect to his mixed habeas petitions: to advise him that it would have the power to consider his stay motions only if he opted to proceed with his exhausted claims and dismiss the unexhausted claims. See Zarvela,
Had Ford been properly informed of the applicable legal procedure, he in all likelihood would have chosen to amend his petitions and the district court almost certainly would have granted the stay motions. See id. at 380 (holding that granting a stay is “the only appropriate[remedy] where an outright dismissal ‘could jeopardize the timeliness of a collateral attack’ ” (quoting Freernan,
B. The District Court’s Failure to Inform Ford that he was Time Barred Under AEDPA
The district court’s failure to ensure that Ford had the opportunity to make an informed choice as to whether to amend the petitions extends beyond its failure to inform him of the necessity of doing so in order to have his stay motions considered by the court. The district court further erred when it failed to inform Ford that, on the face of the complaints, he would be time-barred under AEDPA on all of his claims if he either failed to amend his petitions or chose the option of dismissing them and returning to state court to exhaust the unexhausted claims. Although Ford timely filed both of his initial federal habeas petitions, he was only timely by a few days. See supra Section II. Over four months then passed before the magistrate judge issued his findings and recommendations in Ford’s two cases. Because AED-PA’s one-year limitations period is not statutorily tolled during the pendency of a federal habeas petition, see Duncan v. Walker,
When the district court presented Ford with the option of either dismissing his mixed petitions and returning to state court to exhaust his then-unexhausted claims or amending the petitions to proceed with only the exhausted claims, it not only failed to inform him that on the face of the complaints AEDPA’s one-year statute of limitations had run on both of his petitions and that his petitions would therefore be barred from re-filing in federal court if he elected the court’s first option, but it definitively, although not intentionally, misled him by informing him that if he opted to dismiss the petitions to return to state court to exhaust his claims, the dismissal would be without prejudice. See Tillema v. Long,
C. The Effect of the District Court’s Failure to Inform Ford of his Options before Dismissing his Initial Federal Habeas Petitions on the Timeliness of his Second Federal Habeas Petitions
The district court’s failure to inform Ford, before dismissing his initial petitions, that his claims would be time-barred under AEDPA if he chose to dismiss the petitions and return to state court, and that the district court could not consider
Although we cannot place Ford back in the same position that he was in before the erroneous dismissal of his initial petitions, we can ensure that his rights are not unduly prejudiced as a result of the district court’s errors. Toward that end, we hold that a pro se habeas petitioner who files a mixed petition that is improperly dismissed by the district court, and who then (following the district court’s erroneous legal statements) returns to state court to exhaust his unexhausted claims and subsequently re-fíles a second petition without unreasonable delay, may employ the amendment procedures of Federal Rule of Civil Procedure 15(c) (“Rule 15(c)”) to have the second petition relate back to and preserve the filing date of the improperly-dismissed initial petition.
We have previously held that if a habeas petitioner’s mixed petition is properly dismissed without prejudice and he accepts the proper dismissal of that mixed petition, he may not later employ Rule 15(c)’s relation back doctrine to justify an untimely-filed second petition. See Green v. White,
P. Claims Ford Asserts for the First Time in his Second Federal Habeas Petitions
Although we hold that those claims that were originally asserted in Ford's initial petitions and then subsequently reasserted in his second petitions were timely filed under Rule 15(c), the same analysis does not apply to the claims that Ford asserted for the first time in his second petitions. Rule 15(c) specifically states that the claim or defense asserted in the amended pleading must "ar[i]se out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading" (emphasis added). In this case, there were two claims in the Loguercio case and five claims in the Weed case that Ford raised in his second petitions that he did not raise in his initial petitions.
With respect to the claims raised for the first time in the second Weed petition, Ford contends that AED-PA's one-year statute of limnitations should be equitably tolled because he did not receive the complete set of his legal papers from his appellate attorney until July of 1997. If the statute of limitations were tolled until July of 1997, Ford's April, 1998 second federal habeas petition would be timely under AEDPA. In support of this equitable tolling claim, Ford submitted letters that he exchanged with his former counsel demonstrating his attempts to obtain his legal papers. The State points out, however, that, according to the correspondence, Ford's counsel first forwarded his file to him in June of 1995 and that Ford waited over two years, until after the AEDPA statute of limitations period had expired, to write his counsel stating that he did not receive a complete set of records. Ford responds by asserting that he was unsuccessfully trying to bbtain the complete record from his counsel during the two year period between 1995 and 1997-a fact that, on the record before us, is uncorroborated by independent evidence. Several courts have held that a lack of access to one's legal papers may constitute an "extraordinary circumstance" that would warrant equitable tolling in instances in which the state is responsible for the unavailability. See, e.g., Whatlem/Hunt,
With respect to those claims that were originally raised in Ford’s initial federal habeas petitions and then re-filed in his second petitions, we vacate the district court’s dismissal of the second petitions as untimely and remand them so that the district court may consider the claims on the merits. With respect to the five claims that were raised initially in Ford’s second Weed petition, we vacate their dismissal and remand for the development of a factual record as to whether the statute of limitations should be equitably tolled. With respect to the two ineffective assistance of counsel claims raised for the first time in Ford’s second Loguercio petition, we affirm their dismissal.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.
Notes
. In his initial federal petition, Ford claimed that he was entitled to relief on the following grounds: (1) trial court violated his confrontation clause rights when it quashed subpoena duces tecum issued by defense concerning freelance writer who had 10 hours of a taped interview with the chief prosecution witness about the case; (2) the defense was unconstitutionally burdened when the court excluded evidence of the writer’s pecuniary interest as irrelevant; (3) trial court erred in not allowing evidence of prosecutorial misconduct on the basis of instructions to the police to cease interviewing witnesses; (4) trial court erred in not allowing the defense to present extrinsic evidence of third-party culpability; (5) trial court’s refusal to allow evidence about the petitioner’s wife's rape, tape recordings of the prosecution’s key witness, and references to the co-defendant hampered the defense; (6) failure to allow evidence of specific acts of misconduct in order to impeach prosecution’s prime witness was error; (7) jury misconduct resulting from the jury foreman producing his own "spread sheet,” which was then used by the entire jury; (8) failure to suppress a general warrant lacking in specificity and particularity violated petitioner’s rights under the Fourth & Fourteenth Amendments; (9) due process rights were denied by State's failure to preserve potentially favorable evidence; (10) trial court prejudicially refused to instruct the jury about the inferences to be drawn against People for loss of evidence seized pursuant to warrant; and (11) trial court erroneously refused to instruct that the jury that it had to be unanimous on each overt act of each conspiracy.
. In his second petition, Ford re-alleged all of the grounds from his initial petition and also alleged that he was entitled to relief because his trial and appellate counsel were constitutionally ineffective.
. In his initial federal petition. Ford claimed that he was entitled to relief on the following grounds: (1) a tape recording was entered into evidence in violation of his constitutionally cognizable expectation of privacy; (2) there was Fourth Amendment violation because the seizure of evidence exceeded the scope of the warrant; (3) a warrant for a tape recording was obtained in violation of Title III, the Omnibus Crime Act, 18 U.S.C. § 2510 et seq.; (4) a tape recording was used in violation of his protected marital privilege and invaded his constitutional right to confidential communication; (5) Fourteenth Amendment violation resulting from a subsequent judge’s action in changing the original judge's ruling on a PC § 995 motion; (6) due process violation resulting from an inaccurate ruling regarding "overt acts” among conspir
. In his second petition, Ford re-alleged all of the grounds from his initial petition and also alleged the following new grounds: (1) prosecution erroneously used testimony obtained from a drugged alleged co-conspirator; (2) the use of police agents to inculpate him by false testimony violated Miranda & Wong Sun and the Fourth, Fifth, Sixth, and Fourteenth Amendments; (3) prosecution misstated evidence and other case factors to cause the indictment and selective prosecution of Ford, which violated the truth-in-evidence doctrine and violated his constitutional rights; (4) judicial misfeasance, abuse of discretion, and nonfeasance misdirected the jury and violated Ford's rights to an impartial jury, due process, and equal protection; and (5) ineffective assistance of counsel.
Respondent also contends that Ford's assertion in his second petition that two exceptions to the Fourth Amendment warrant requirement do not apply to his case are new claims. The contentions, however, do not constitute claims, but are simply arguments in support of the claim of a Fourth Amendment violations claim that he asserted in his initial petition. Additionally, respondent contends that Ford's claim that "an investigative authority that has no coercion for, or authority over, jail security receives no deference for intrusions on inmate/citizen privacy” is newly-raised. Here, too, we hold that Ford has not asserted a claim but rather advanced an argument in support of the claims that he previously raised in grounds one and four of his initial petition, see supra note 3.
. But see Neuschafer v. Whitley,
. See also Lucas v. Department of Corrections,
. Contrary to the dissent's assertion, requiring the district judge to inform a pro se petitioner if, on the face of his complaint, the AEDPA one-year statute of limitations has expired during the pendency of his federal habe-as petition does not transform the district judge into the petitioner's paralegal. Nor, of course, does requiring him to advise pro se petitioners of the existence of the AEDPA one-year limit and the fact that a portion of that period has already elapsed. We already require the district judge to inform a pro se habeas petitioner that he has the option of dismissing the mixed petition without prejudice and returning to state court to exhaust the then-unexhausted claims. See, e.g., James,
Our holding today does not open the floodgates, as our dissenting colleague fears, for future requirements that district judges inform pro se petitioners about the many factors that could affect petitioners' decisions regarding how to proceed with mixed petitions. Notifying a pro se plaintiff of the existence of the AEDPA limitation and the fact that part or all of that period (whichever is the case) has already run is a relatively simple task. Judge Silverman is undoubtedly correct that a number of factors could and likely would affect a petitioner’s decision regarding how to proceed. What his dissent fails to recognize, however, is that the district judge, when informing the petitioner about his options, does not ordinarily discuss (let alone affirmatively mislead the petitioner about) any of these other factors. In contrast, the judge affirmatively misleads the petitioner by stating that dismissal of a mixed petition is “without prejudice" if AEDPA's one-year statute of limitations had already expired while the federal court was considering the mixed petition. A district judge need not advise a pro se petitioner about every possible factor that could affect his decision, but when he does inform tire pro se petitioner about his options, he must at the very least provide accurate, and not misleading, information.
. The analysis in this section relates only to those claims in Ford's second federal habeas petitions that were originally filed in his initial federal habeas petitions. See infra Section II.D. for a discussion of the claims that were asserted for the first time in Ford's second federal habeas petitions.
. Rule 15(c) provides that "[a]n amendment of a pleading relates back to the date of the original pleading when ... the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.”
. Compare Anthony,
. See Jorss,
. In both Ford's case and Anthony’s, the second petitions were filed after the AEDPA one-year limitations period had expired. In neither case did the petitioners unreasonably delay in taking the actions that they took. Ford, after timely pursuing exhaustion in state court by filing a state habeas petition within three weeks of the federal court's dismissal of his mixed petitions, re-filed his petitions in federal court within two weeks of the state court's dismissal of his state habeas petitions. See Zarvela,
. The dissent relies principally on our decision in Green v. White,
First, while Ford was proceeding pro se when he filed his first and second habeas petitions, nowhere in the Green opinion does it state that Green was proceeding without counsel. In fact, one of Green's contentions on appeal was that the AEDPA statute of limitations should be equitably tolled “because any delay [wa]s a result of his and his attorney’s reliance” on Supreme Court precedent. Green,
Second, the district judge in Green did not mislead Green when he informed him that he had the option of dismissing his mixed petition without prejudice in order to return to state court to exhaust his then-unexhausted claims. At the time that the district court dismissed Green’s initial habeas petition without prejudice, Green still had almost 11 months remaining in his one-year AEDPA statute of limitations in which to exhaust his then-unexhausted claims.
Finally, there is no indication that Green ever filed a motion to stay the federal habeas proceedings so that he could exhaust the unexhausted claims in his initial mixed petition. Ford did file stay motions. The district court’s error in failing to inform Ford that his motions could not be considered unless he opted to amend his mixed petition and dismiss his then-unexhausted claims is sufficient, standing alone, to merit relief.
. Although we need not reach the question here, Ford would also be entitled to relief under equitable tolling principles. The district court's error in failing properly and fully to inform Ford about his options with respect to the mixed petitions and in misleading him as to the legal effect of a dismissal of his petitions were "extraordinary circumstances" beyond Ford's control that would require equitable tolling of AEDPA's statute of limitations. See, e.g., Tillema,
. See supra notes 2 & 4 (listing the new claims).
. With respect to the newly-asserted claim of a due process violation resulting from the use of testimony obtained from a drugged alleged co-conspirator in the Weed case, Ford argues that he did not discover that the main witness against him, Jan Olgilvie, was threatened by the police and drugged until after his conviction was final. However, letters between
. Ford contends that all of his Weed claims-not only the claims raised for the first time in the second petition, but those asserted in the first petition as well-should be heard on the merits because he passes through the "actual innocence" gateway of Schlup v. Delo,
. See also Frye v. Hickman,
. See also Fahy v. Horn,
In a related context, there are several cases in which courts have held that egregious conduct by counsel warrants equitable tolling of the statute of limitations for filing an EEOC complaint. See, e.g., Seitzinger v. Reading Hosp. and Med. Ctr.,
Similarly, a number of courts, including this court, have held that a client who demonstrates gross negligence on the part of his attorney has established the requisite "extraordinary circumstances” to set aside a default judgment under Federal Rule of 60(b)(6). See, e.g., Community Dental v. Tani,
. With respect to the two .ineffective assistance of counsel claims raised for the first time in Ford's second Loguercio petition, we affirm the district court’s dismissal of the claims as time-barred. Ford has presented no reason why those two claims could not have been presented along with the others set forth in his initial petition, or why the purported absence of AEDPA materials from the library would have prevented him from filing the ineffective assistance of counsel claims but not the others. Our decision, of course,
Dissenting Opinion
dissenting:
Ford filed an improper mixed petition. The district court correctly offered him the option of either amending the petition by deleting the unexhausted claims and proceeding with only those that had been exhausted, or suffering the dismissal of his entire petition without prejudice. This is exactly what a district court is supposed to do. James v. Pliler,
Ford never appealed the dismissal of that petition. (He still hasn’t.) What he did instead was go back to state court and exhaust his remaining claims. He eventually returned to federal court and filed the new petitions that are the subject of this appeal. By that time, the statute of limitations had run and the petitions were dismissed as time-barred.
This was precisely the situation we upheld in Green v. White,
Green obtained a voluntary dismissal of his earlier habeas petition in order to exhaust his state remedies. A second habeas petition does not relate back to a first habeas petition when the first habe-as petition was dismissed for failure to exhaust state remedies. See Van Tran v. Lindsey,212 F.3d 1143 , 1148 (9th Cir.2000). When the present petition was filed, there was no pending petition to which the new “petition could relate back or amend.” Henry v. Lungren,164 F.3d 1240 , 1241 (9th Cir.1999). Therefore, Green’s present petition does not relate back to his earlier petition that was dismissed.
Id. at 1003.
Because Green is identical to the present case in all material respects, the majority is forced to concoct a way around it. It does so by holding that Green does not apply if a mixed petition was “improperly dismissed.” The majority then posits that the mixed petitions in present case were improperly dismissed because the district court did not warn petitioner that if he refiles, the statute of limitations might return to bite him.
The majority makes much of the point that when the district court dismissed Green’s petition, Green still had eleven months of the statute of limitations left to run, while Ford’s time had already expired. Therefore, says the majority, the dismissal of Ford’s petition without prejudice was tantamount to a dismissal with prejudice. This argument fails to take account of the fact that the district judge will almost never be able to tell, solely from the face of the petition, that the statute of limitations has expired. The calculation of the limitations deadline requires the examination of documents that rarely, if ever, accompany the petition. There is nothing to show that Ford’s petition was any different than the usual.
Dismissal without prejudice was not the equivalent of a dismissal with prejudice. Ford was perfectly free to re-file. If thereafter, the statute of limitations had been raised as an affirmative defense, Ford then would have been entitled to assert whatever factual, statutory, and equitable defenses to the statute of limitations he might have had. And if the statute of limitations had not been raised, it would have been waived.
More troubling is the new rule the majority enacts today. Boldly going where no court has gone before, the majority holds that the district court, when complying with James v. Pliler, must incorporate a warning about the statute of limitations. Otherwise, says the majority, the dismissal is “improper.” James v. Pliler does not require that, nor does any other case.
It is one thing to construe a pro se petitioner’s pleadings liberally, and to require the district court to explain its reasons for dismissing a complaint. It is quite another thing to require the district court judge to act as petitioner’s legal advisor. Numerous factors can affect a petitioner’s decision to delete unexhausted claims and proceed with an amended petition, rather than accept dismissal without prejudice so that unexhausted claims can be pursued in state court. For example, the meritoriousness of the unexhausted claims is an extremely important factor; so is the fact that the failure-to-exhaust might foreclose those claims forever. The availability of key witnesses is another factor. The statute of limitations is only one element in the equation, and a fact-intensive one at that. Leaving aside the question of the proper role of the court as a neutral arbiter, the district court simply is in no position to identify all of the considerations that pertain. I respectfully suggest that it is the office of the court to fairly and impartially decide the case before it, not to act as the petitioner’s paralegal.
The majority places great reliance on the Second Circuit’s decision in Zarvela v. Artuz,
Finally, in footnote 14, my colleagues advise that, “Although we need not reach the question here, Ford would also be entitled to relief under equitable tolling principles.” The majority then goes on to explain why, in its view, Ford is entitled to equitable tolling, and finally, in apparent recognition that the issue is not before the court, ends up by saying, “However, because we grant Ford relief on statutory grounds, we do not resolve any equitable tolling claim here.” The majority’s yearning to resolve Ford’s supposed entitlement to equitable tolling is as puzzling as its denial that it is doing that very thing.
The essence of the majority’s analysis of the equitable tolling issue it “need not reach” (but does anyway) is its view That Ford was “misled” by the district court’s faithful compliance with the procedure set out in James v. Pliler and Rose v. Lundy. Equitable tolling requires that “extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” Miles v. Prunty,
Ford did not raise this equitable tolling issue in the district court. In fact, he hasn’t even raised it in this appeal — not even after we invited supplemental briefing. That alone is reason to keep our mitts off equitable tolling. Jiminez v. Rice,
Because the district court correctly dismissed the second petitions as time-barred, I would affirm, and therefore respectfully dissent.