Lead Opinion
Opinion by Judge CLIFTON; Partial Concurrence and Partial Dissent by Judge BERZON.
Petitioner Richard Herman Ford is currently a prisoner in state custody. He has challenged his confinement by filing two habeas corpus petitions in federal district court. Those petitions were originally dismissed by the district court as untimely based on the one-year federal statute of limitations under 28 U.S.C. § 2244(d)(1). This court reversed the dismissal, in part, in a decision that held that district courts must advise petitioners regarding certain aspects of dealing with the statute of limitations before dismissing habeas petitions. Ford v. Hubbard,
On remand, the district court determined that it had affirmatively misled Ford and thus the limitations period should be equitably tolled. The state successfully sought leave to appeal that determination, and we reverse it as inconsistent with the decision of the Supreme Court. Because Ford has not established that the limitations period should be equitably tolled, his federal habeas petitions must be dismissed as untimely.
I. Background
On April 19, 1997, Ford signed and delivered to prison authorities two pro se federal habeas corpus petitions. The first petition related to Ford’s California state court convictions for, among other things, conspiring to murder John Loguercio and attempting to murder Loguercio’s wife. The second related to his convictions for first-degree murder and conspiracy to commit the murder of Thomas Weed.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), there is a “1-year period of limitation” for “application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). Because Ford’s convictions in both cases became final prior to the enactment of AEDPA, his one-year period for filing a habeas petition in federal court began on AEDPA’s effective date of April 24, 1996. Ford,
Although some of the claims in each of Ford’s petitions had previously been raised in state court, other claims in each petition had not been so exhausted. Recognizing that the inclusion of unexhausted claims prevented the district court from entertaining his petitions in their current state, see Rose v. Lundy,
The district court did not grant those motions to stay. The magistrate judge assigned to the case explained that the court only had power to stay proceedings for habeas petitions containing exclusively exhausted claims. He asked Ford to se
Ford chose to dismiss the Loguercio petition without prejudice. He failed to respond with respect to the Weed petition. As a result, the district court dismissed both petitions without prejudice.
Shortly afterwards, seeking to exhaust all his claims, Ford filed habeas corpus petitions for both cases in the California Supreme Court. Each petition was subsequently denied. Ford then refiled both of his federal habeas petitions on April 1, 1998. By that time, however, the one-year limitations period for filing a habeas petition in federal court had long since run. Indeed, it had already expired by the time the district court identified for Ford the three options explained above. Ford’s petitions were thus untimely, and the district court dismissed them with prejudice.
Ford appealed. As indicated above and as will be discussed more fully below, this court affirmed in part, vacated in part, and remanded with instructions, with one judge dissenting. The Supreme Court disagreed with our reasoning, however, vacated our decision, and remanded for farther proceedings on the question of whether Ford had been “affirmatively misled” by the district court.
We, in turn, remanded to the district court to conduct such further proceedings. Because of another issue previously raised by Ford but not reached by us on the first appeal, we also asked the district court to determine “whether [Fordj’s attorney failed or refused to provide [him] with parts of his legal files ... and whether the attorney’s conduct constitutes an ‘extraordinary circumstance’ that would warrant equitable tolling.”
In the district court, the case was assigned to the same magistrate judge who had been responsible for the case previously and who had identified the three options for Ford. In his Report and Recommendation, that magistrate judge found that Ford had in fact been affirmatively misled. The Report discussed the events surrounding Ford’s initial filings and the dismissal of those petitions “without prejudice” and noted that Ford, by his filing of the motions to stay, “made it clear that he sought to preserve his ability to have all of his claims considered on the merits.” It concluded that the court had not at that time responded properly:
In the context created by petitioner’s requests to stay his first petitions, the Magistrate Judge’s denial of the stays, citing the Bose requirement that the court dismiss “mixed” petitions but not mentioning the proper method for accomplishing a stay-and-abeyance, contributed to petitioner’s mistaken belief that the court’s option of dismissing his petitions without prejudice would accomplish what he was requesting. Notwithstanding the Supreme Court’s subsequent holding that district courts are not required to volunteer stay-and-abeyance advice, in the circumstances of the instant case, petitioner was affirmatively misled because the court’s omission of an explanation of the stay-and-abeyance procedure came in response to petitioner’s requests to stay his petitions.
The Report also noted that the court’s previous order “made no mention of the
The Report concluded:
By failing to specifically address this concern, and simply proceeding to issue [a Report and Recommendation] dismissing without prejudice (even though this dismissal would permanently bar petitioner from having his exhausted claims considered on their merits in federal court, an effect contrary to petitioner’s stated desire), it affirmatively (though unintentionally) misled petitioner.
Since Ford had reasonably relied, to his detriment, on the court’s affirmatively misleading instructions, the Report recommended that the AEDPA one-year limitations period should be equitably tolled and that Ford should be permitted to pursue the exhausted claims in his petitions.
In addition, per our instructions, the magistrate judge discussed Ford’s legal file and whether this might also provide Ford a basis for equitable tolling. The magistrate judge determined that Ford was not entitled to equitable tolling on that basis because the record revealed that Ford was aware of the factual basis of his claims well before he obtained his legal materials. As a result, “even assuming, arguendo, that state appellate counsel’s conduct in failing to provide[Ford] with [his complete file] was egregious,” the Report found no basis on which to find that the attorney’s conduct had made it impossible for Ford to file a timely federal habeas petition.
The district court concurred and adopted the magistrate judge’s conclusions. The state sought permission to take an immediate appeal, and the district court certified the matter for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). This court granted permission to appeal.
II. Discussion
Ford contends that the limitations period for filing his habeas petitions should be tolled for two separate reasons: because he was affirmatively misled by the district court and because he could not obtain his legal file and as a result was unable to file his petitions on a timely basis. Both issues are now before us, and we address each in turn. Whether the statute of limitations should be equitably tolled is a question we review de novo. Waldron-Ramsey v. Pacholke,
A. Ford was not affirmatively misled.
Our decision on the primary issue in this case is controlled by the Supreme Court’s opinion in this same case. The district court gave Ford accurate instruction before dismissing his mixed habeas petitions without prejudice. Pliler does not allow us to require anything more. The Court made clear that to prevail Ford had to demonstrate that he “had been affirmatively misled quite apart from the District Court’s failure to give the two warnings” required in this court’s previous decision. Pliler,
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.
Ford,
More specifically, we first determined that “the district court was obligated to inform [Ford] of his options with respect to his mixed habeas petitions,” ie., how to correctly acquire a stay, id. at 1099, reasoning that by not doing so the court “deprived Ford of a fair and informed opportunity to have his stay motions heard,” id. at 1100. Second, we held that “[t]he district court further erred when it failed to inform Ford that ... he would be time-barred under AEDPA ... if he either failed to amend his petitions or chose the option of dismissing them.... ” Id. We noted that the court “definitively ... misled him by informing him that if he opted to dismiss the petitions ..., the dismissal would be without 'prejudice,” and explained that the district court should have told Ford that because AEDPA’s statute of limitations had expired, “the dismissal, although ostensibly without prejudice, would actually result in a dismissal with prejudice unless he could establish that ... he was entitled to equitable tolling.” Id. at 1100-01. We concluded by stating that the district court misled Ford, depriving him of the opportunity to make a meaningful choice, and held that this amounted to prejudicial error. Id. at 1101-02. In sum, we required district courts to give two specific warnings before dismissing habeas petitions such as Ford’s.
The Supreme Court reversed, holding “that federal district judges are not required to give pro se litigants these two warnings.” Pliler,
As described above, on remand the district court concluded that it had affirmatively misled Ford, holding that the court should have provided him “an explanation of the stay-and-abeyance procedure” and should have informed him “that the AED-PA statute of limitations would apply to his second federal petitions.” But those are the very same instructions that the Supreme Court held that district courts were not required to give. Id. at 231, 234,
The fact that Ford’s actions evidenced a desire to have his claims heard cannot change this result. We agree that Ford wanted to have his claims heard and resolved on the merits. But all of the facts cited in the Report and Recommendation adopted by the district court were part of the record of this case and known to the Supreme Court when it rendered its decision. The Pliler decision recited as fact that Ford “filed motions to stay ... so
More broadly, it can be assumed that all habeas petitioners would prefer not to see their petitions dismissed on statute of limitations grounds and would instead prefer that the court reach the merits, but that is not enough to excuse untimely filings. Nor is it a sufficient basis for us to hold that the district court was required in this ease to give the warnings which Pliler held district courts are not required to give.
Pliler does not leave us room to rule otherwise. The Court stated in Pliler that “[district judges have no obligation to act as counsel or paralegal to pro se litigants.”
In order to show that he was affirmatively misled, Ford needed to point to some inaccuracy in the district court’s instructions. He has failed to identify any affirmative misstatement. The description of the dismissals of the petitions as “without prejudice” does not represent such a misstatement, because those dismissals were in fact without prejudice, as that term is understood in its legal sense. See Black’s Law Dictionary 502 (8th ed. 2004) (“A dismissal that does not bar the plaintiff from refiling the lawsuit within the applicable limitations period.”). We have previously so held. In Brambles v. Duncan,
A petitioner’s misunderstanding of accurate information cannot merit relief, as equitable tolling requires a petitioner to show that some “extraordinary eircumstance[] beyond [his] control” caused his late petition, see, e.g., id. at 1069 (internal quotation marks omitted), and this standard has never been satisfied by a petitioner’s confusion or ignorance of the law alone. Waldron-Ramsey,
“As a result of the interplay between AEDPA’s 1-year statute of limitations and Lundy’s dismissal requirement, petitioners who come to federal court with ‘mixed’ petitions run the risk of forever losing their opportunity for any federal review....” Rhines v. Weber,
B. The missing legal files did not prevent Ford from timely filing.
Also before us is the district court’s determination that Ford is not entitled to equitable tolling based on his state appel
The problem for Ford is that he never objected to the district court’s factual finding that he “was aware of the factual bases of his ... claims as early as 1992.” As a result, he has waived any challenge to that finding, and we must take it as true. Robbins,
III. Conclusion
Ford was not affirmatively misled by the district court. Although it failed to advise him of the likely consequences of his procedural options, the district court accurately presented those options to him. This is all it was required to do. In addition, Ford is not entitled to equitable tolling on the ground that he did not have his legal files because the record shows that he was aware of the factual basis of his claims without them.
Ford’s petitions were filed after the limitations period had run. The petitions do not qualify for equitable tolling of the limitations period, so they were untimely and must be dismissed.
AFFIRMED IN PART; REVERSED IN PART.
Notes
. For more detail concerning the background of this case, see our previous decision, Ford,
. Any implication in the dissenting opinion that Justice O’Connor’s concurring opinion expressed a different view is unfounded. Justice O’Connor joined in the majority. As her concurring opinion explained, she wrote to highlight that ”[t]he propriety of the stay-and-abeyance procedure generally is not addressed” in the majority opinion, and that such an approach "is not an idiosyncratic one” but rather had been approved by seven of the eight Circuits to consider it.
For the reasons given by the majority, ante, at 231-233,124 S.Ct. 2441 , it is not incumbent upon a district court to establish whether the statute of limitations has already run before explaining the options available to a habeas petitioner who has filed a mixed petition.
Id. at 235,
. We are not persuaded that our decision in Brambles can be disregarded or distinguished based on the "terseness” of its discussion, as the dissenting opinion, at 16832-33, suggests. The issue there was essentially the same as the issue in this case, and it is plain that the Brambles panel understood the issue and spoke to it. That decision concluded that the instructions given to petitioner by the district court, which included the words "without prejudice” even though, as here, the AEDPA one-year limitations period had already run by the time the instructions were given, "were not affirmatively misleading. They presented accurate options available to Brambles.”
If anything was misleading, it was what the district court did not tell Brambles — that the dismissal of his first petition would effectively be final unless he could establish that the statute of limitations period was equitably tolled, and that the stay and abey process was available. However, the Supreme Court in Pliler admonished district courts against attempting to explain to pro se litigants these federal habeas procedures, stating that attempting to do so might prove to be misleading. Pliler,124 S.Ct. at 2446 .
Id. at 1070-71.
Nor are we persuaded by the dissenting opinion's citation to decisions by this court that predate the Supreme Court's decision in Pliler. Notably, the citation to Tillema v. Long,
Concurrence Opinion
concurring in part and dissenting in part:
I cannot agree with the majority’s conclusion in Part II.A that Pliler v. Ford,
I.
Contrary to the majority’s suggestion, the Supreme Court in Pliler quite clearly left open the question whether, by spelling out options and describing one as dismissal “without prejudice” in the context of Ford’s expressed desire to stay his petitions, the district court affirmatively misled Ford.
The Supreme Court recognized that the Ninth Circuit opinion in the case suggested Ford was “misled ... by telling him that if he chose the first option, the dismissal would be without prejudice.” Id. at 229,
That the Supreme Court did not foreclose the possibility that Ford was misled by the “without prejudice” phrase is confirmed by the concurring and dissenting opinions in Pliler. Justice O’Connor, who cast the fifth vote to form the majority, conditioned her concurrence on the possibility that the court on remand could find Ford was affirmatively misled. Id. at 235,
This understanding is confirmed by the other concurrence, that of Justice Stevens, joined by Justice Souter. Justice Stevens wrote that “remanding to the Ninth Circuit to determine the propriety of equitable tolling” was the appropriate judgment, but explicitly agreed with the substance of Justice Ginsburg’s dissent. Id. at 235,
In sum, the Supreme Court in Pliler left open the “affirmatively misled” issue, where the only possibly affirmatively misleading language identified in the opinions was the “without prejudice” phrase. There’s just no doubt that the issue left open in the next-to-last sentence of the majority opinion in Pliler v. Ford was whether the admonition the district court did give, using the term dismissal “without prejudice,” was misleading.
II.
Having determined that Pliler does not answer the question before us, I would affirm the district court’s finding that Ford was affirmatively misled. This finding is deserving of our deference because the district court is most intimately familiar with the facts. See Whalem/Hunt v. Early,
The district court’s determination is, moreover, in line with our case law. We have recognized that a dismissal “without prejudice” is in fact “with prejudice” when it is definite that an individual’s petition or claim cannot be successfully refiled because time-barred by the time of the dismissal. See, e.g., Tillema v. Long,
For its contrary conclusion that the court’s instructions were accurate and therefore could not be misleading, the ma
As I read it, the definition assumes that any applicable limitations period has not yet expired when a “dismissal without prejudice” occurs. It makes no sense to speak of “refiling the lawsuit within the applicable limitations period” when the period is over at the time of the dismissal. I very much doubt that Black (or, more probably, his successors) had in mind that anomaly when he fashioned the definition.
My reading is confirmed by Black’s separate entry for “without prejudice” as meaning “[wjithout loss of any rights; in a way that does not harm, or cancel the legal rights or privileges of a party < dismissed without prejudice>.” Black’s Law Dictionary 1632 (emphasis added); see also Bryan A. Garner, A Dictionary Of Modern Legal Usage 937 (2d ed. 1995) (defining “without prejudice” as describing “a legal action — either judicial or among private parties — that in no way harms or cancels the legal rights or privileges of a party” (emphasis added)). The majority’s reading of the definition of “dismissal without prejudice” cannot be squared with this definition of “without prejudice.” Ford’s right to have his exhausted claims heard was, according to the majority, forever lost at the moment of dismissal. See Maj. Op. at 789-90. If so, the dismissal was certainly not “without prejudice” as defined by Black’s and by Garner, as the result of the dismissal was, emphatically, to “harm or cancel ... legal rights.” So describing the option of dismissal as “without prejudice” was not accurate even under ordinary legal usage.
In any event, where a court, as here, gives options to a pro se litigant, reliance on the legal dictionary definition of “without prejudice” should not be determinative of what the litigant was reasonably led to believe by the court. Pliler to some degree supports this conclusion, because it explains why a court’s affirmative advice to a pro se petitioner can be misleading and so should be limited. See
Moreover, in this instance the magistrate judge must have known that the limitations period had expired on the exhausted claims, as the original habeas petitions so informed him: Ford’s original habeas petitions stated that by Ford’s own calculations, the limitations period was about to expire when the petitions were filed. See Loguereio petition dated April 19,1997 (“Petitioner advises court that due to haste to meet deadline imposed by Public Law 104-132-Apr. 24, 1996, several additional meritorious issues beyond what has been stated in this motion may exist.”); Weed petition dated April 19, 1997 (“Petitioner advises court that due to haste to meet the April 23, 1997, statute of limitations deadline for federal habeas corpus petitioners, petitioner may have missed additional issues beyond what is mentioned in this motion.”). The magistrate judge was therefore on notice that dismissal “without prejudice” of the exhausted claims after April 23, 1997, would effectively be “with prejudice.”
Even if that were not so, our case law approves of equitable tolling based on affirmatively misleading actions not the re-
The sum of the matter is that the district court found that Pliler was affirmatively misled when he was informed that the dismissal which would make it impossible to litigate his exhausted claims was “without prejudice,” and we have no basis for upsetting that finding.
III.
Neither our opinion in Brambles v. Duncan,
The majority reads Brambles to hold that an advisement using the term “dismissal without prejudice” cannot as a matter of law be misleading, even when given after the limitation period has expired. See Maj. Op. at 788-89. Rather, to warrant equitable tolling, “[a] petitioner like Ford must show that the court erred in the instruction it did give him.” Id. at 789. On balance — although the question is not free from doubt — I would not adopt this interpretation of Brambles.
Given the terseness of the opinion, it is unlikely that Brambles determined that a “dismissal without prejudice” • advisement can never be misleading, even if the limitations period has run, and even if, as here, the judge who gave the advisement concludes that the petitioner was affirmatively and reasonably misled.
Aside from Brambles, the majority relies on Rasberry v. Garcia,
In Rasberry, we held that “a pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”
Waldron-Ramsey is even further from the mark. In that case, decided after Rasberry and Brambles, we held that the petitioner “was not diligent in the filing of his federal habeas petition,” and so reserved the question “whether confusion about AEDPA law or confusion about what action the state court has taken can ever be the type of extraordinary circumstance that may warrant equitable tolling.” Waldronr-Ramsey,
CONCLUSION
In sum, Ford was affirmatively misled by the language that the court chose to use in describing his options. In its considered judgment, the district court so found on remand, and the Supreme Court in Pliler did not erect a barrier to this finding. Indeed, the Supreme Court remanded for this very purpose. I would not read Brambles as dictating a contrary result in this case.
Alternatively, if Brambles does have the force the majority thinks it does, I would conclude that it was wrongly decided and would recommend en banc reversal by this court. The panel in Brambles should not have adopted a per se rule that telling a pro se litigant his dismissal is “without prejudice” can never be misleading. Ford’s case offers a compelling example of why this is so. It was logical for Ford to be confused as to the meaning of a dismissal without prejudice, given the common understanding of the term “without prejudice.” See, e.g., The Compact Oxford English Dictionary: New Edition 356 (reprinted 1999) (2d ed. 1991) (defining “without prejudice” as “without detriment to any existing right or claim”); see also id. (defining the verb “prejudice” as “[t]o affect injuriously or unfavourably by doing some act, or as a consequence of something done; to injure or impair the validity of (a right, claim, statement, etc.)”). There is also evidence that Ford was in fact confused about the meaning of “without prejudice,” which the district court re
For the foregoing reasons, I respectfully dissent.
. The district court in Brambles had determined that Brambles was not entitled to equitable tolling.
. For example, in response to the government's attempt to dismiss Ford's Weed petition, Ford filed a traverse stating that "petitioner hopes to proceed by this instant Traverse as to those ‘Grounds' which are actionable unless a stay or dismissal without prejudice is granted or if in doing so he would be procedurally barred.” (emphasis added) He then filed a "return” to the government's answer, stating that if the district court could not stay his Weed petition, he requested dismissal without prejudice in order to exhaust his unexhausted claims in state court “unless, in doing so, he will be procedurally barred ... In which case he has no choice but to proceed....” The court then gave Ford three options, including dismissal "without prejudice” as the default. When Ford did not respond to the court’s order regarding the Weed petition, the court dismissed it “without prejudice.”