*1 jurisdiction under 28 ER 1. We have 2253, § affirm § and we U.S.C. judgment of the district court. BOBADILLA, Petitioner- Jesse Appellant, by jury convicted Bobadilla was crimes, and sentenced murder and other 4, April on years prison to life in GIPSON, Respondent- C.S.P., C. Bo- California Court denied Appellee. review badilla’s counseled for 2, November of the California Su- not inform Bobadilla Appeals, United States than a preme Court until decision 2012, later, 17, year on November July Argued returned Bobadilla’s records Pasadena, of November him. his letter the deadline counsel advised Bobadilla that March Filed Janu- 31,2013. ary of limi- undisputed It that the statute is for tations for § pursuant 28 U.S.C. corpus relief year expired January one McBride, Esquire, Attor- Andrew Mark for petitioning after the deadline Su- P.C., McBride, of Mark ney, Law Offices States for preme Court of the United Hills, Petitioner-Appellant Beverly for expired. had Bowen writ certiorari Roe, Kohm, of the Marc AGCA-Office Califor- 1999). It undisputed General, Attorney Angeles, nia corpus petition not file a habeas Respondent-Appellee for court until VANASKIE,* MURGUIA, and tolling of run- Before: badilla claims WATFORD, Judges. ning period by reason of to inform him of the his counsel’s failure ** by for denial of his

MEMORANDUM until November appeals from the Jesse Bobadilla district 54 weeks after the Califor- dismissing his federal order ruling. its nia issued untimely. granted This Court petition as To ap- be entitled for a certificate Bobadilla’s request following question: imposed on the pealability Penalty and Effective Death Antiterrorism properly deter- (“AEDPA”), petition- Act of by the was barred mined “ ‘(1) limitations, pursu- has been including er whether statute rights diligently, and that some tolling.” appellant ** * Vanaskie, publi- disposition appropriate This Thomas I. The Honorable Judge provid- precedent except U.S. Court States Circuit cation and is not Circuit, desig- sitting by Appeals for the Third Rule 36-3. ed Ninth Circuit nation.

601 Here, extraordinary circumstances in his stood we learning conclude that after omission, way' filing.” counsel’s timely Bobadilla act 631, 649, with reasonable diligence through fil- 560 U.S. ing. Seventy-five days before 2549, 177 AEDPA’s L.Ed.2d 130 Pace (quoting was to expire, set Boba- 408, 418, DiGuglielmo, 544 U.S. dilla’s informed Bobadilla of his (2005)). S.Ct. L.Ed.2d 669 While omission and alerted that Bobadilla delay by we find that inexcusable coun deadline file a federal to inform sel January 31, Despite 2013. receiving ruling an ex constitutes information, took no action circumstance, traordinary we conclude that prior to November 2013.1When Boba- requisite act with the eventually dilla did federal habeas diligence'to warrant petition, to word- amounted We note of this con the law “Argument” recitations for-word cerning diligence required of a federal headings from the contents of his petitioner is somewhat tension. review the California, Kernan, As this Court observed Luna v. which was in Bobadilla’s (9th 2015), possession September since adopted 784 F.3d 640 2011. This we delay of more than eleven months after “stop approach equitable clock” receiving his case file and notice claims Gibbs v. F.3d federal habeas deadline demonstrates (9th 2014). pure stop-clock Under a requisite act “[tjhere approach, is no need to dili diligence through the time of extraordinary circum Busby, See Doe v. Luna, stances have ended.” 784 F.3d at (9th 2011) However, Moore, in Spitsyn (“The purpose requiring peti- 2003), required we verify tioner to show is to that it diligence through to show circumstance, was the time of even after the opposed to act of petitioner’s circumstance dissolved. And recent doing, the failure to caused ly, “[ojrdinarily, peti we observed that file.”). timely Accordingly, we conclude tioner must act with reasonable that Bobadilla is not receiving delayed before and after tolling. notice that state denied his habeas AFFIRMED. Biter, petition.” Fue banc) (en added; (emphasis MURGUIA, Judge, dissenting: omitted). Thus, citation “under cir current law, apply diligence- cuit we must both the I agree majority with the that there is through-filing requirement imposed by tension in tolling jurispru- our stop-clock approach and the However, respectfully dence. dissent adopted Luna, in Gibbs.” 651- 784 F.3d at majority’s holding from the because Boba- timely dilla’s under the more 1. On after the statute of court on which was denied October limitations to seek federal peti- habeas relief had 2013. These state expired, tions, Bobadilla sent mail do not Court, Angeles Superior rights diligently. a state habeas See Holland, Bobadilla filed another tion. state 560 U.S. at S.Ct. Court, pointing majority is correct out practical “stop-clock” rule banc, that a sitting adopted immigration in the en INS, support in our to find some Socop-Gonzalez v. seems Moore, 2001) (en banc), Spitsyn v. and has case law. 2003).1 majority As the *3 in

applied the habeas Gibbs tension, 2014). notes, light of this Luna v. in to “apply Kernan advises this rule, im stop-clock the Under the once dihgence-through-fihng the preventing petitioner from pediment the stop-clock ap imposed by Spitsyn and the removed, petition is the Court filing his in proach adopted Gibbs.” petitioner] only inquire “whether 2015). However, I 651-52 take period after filed within Luna’s, attempt to issue reconcile Socop-Gon into tolling account.” taken and diligence-through-filing requirement (“[T]he zalez, event 272 F.3d at 1195-96 stop- stop-clock approach. the Under the simply stops the that ‘tolls’ the statute rule, during post-im the diligence clock of event the occurrence a later clock until pediment not need to be period does run permits the statute to resume If, asserts, line of shown. as Luna another not re ning.”). stop-clock rule does shown, diligence must be cases holds diligence petitioner to quire of the two cases are irreconcil then lines of As through filing. the time Id. attempting ap “apply able. to both” noted, requiring a previously has proaches, directly each contradict diligence to petitioner demonstrate other, the rule nec usurps filing “arguably the of time stop-clock essarily the rule. Be subsumes authority substituting congressional ... stop-clock rule a definitive test cause subjective of how view [the court’s] objec policy “the and is consistent with plaintiff reasonably much time a needed limitations,” of of tives the statute Mueller, Id.; see also Lott file suit.” of apply this rule to the timeliness assess Socop-Gonzalez, Bobadilla’s (“A (McKeown, J., concurring) year should at 272 F.3d just fortunate days be 365 for those (1) has “that enough any be free obstacles demonstrated circumstance stood petitioners—particularly for all but way prevented timely filing,” and their those who find (2) pursuing rights shrinking impediments “that he been because of has control.”). beyond diligently.” their U.S. seeking equitable tolling Spitsyn only diligence if has prong "the addresses attempt- Spitsyn, dicta. See not exercised reasonable only F.3d at 802. The issue before ing circum- whether, Spitsyn’s at- Stinson, misconduct began” (quoting stances Valverde v. satisfy torney sufficiently egregious to (2d 2000) (emphasis "extraordinary prong' equi- circumstance” added))). simply in its While the Court noted tolling, at The Court Id. concluded concluding paragraph that "the record [did] attorney’s that the misconduct constituted an why Spitsyn did not extraordinary circumstance and remanded re- September, [his tion until counsel] the case to determine April,” turned his files the Court dili- exercised reasonable Spitsyn’s. dur- indicate that lack matter, the cir- pre- necessarily this time (stating cumstances faced.” Id. at clude his entitlement to not entitled to L.Ed.2d 130 on within omitted). quotation marks period, his petition is timely lawyer wait- abandoned stop-clock under the rule. ing until November 2012—53 weeks

after the California Court’s deni-

al of notify review—to

badilla the denial send him

record his case. previously have We

explained importance providing ha- petitioners

beas with access to their files.

See, e.g., Yates, Ramirez 2009) (“[I]t is unrealistic to

expect to prepare meaningful petition on his own within without access to his Wayura PRAMUAL, Petitioner, legal quotation file.” marks omit-

ted)); (“But Spitsyn, 345 F.3d at 801 with- out the lawyer] pos- which [the still SESSIONS, Attorney B. Jeff

sessed, it expect seems unrealistic to General, Respondent. prisoner] a meaningful and file petition his own within the limitations period.”). lawyer’s conduct in cir- case constituted an Court Appeals, States cumstance that from on time. Argued and not fail to exercise Francisco, San

reasonable the circum Although stances in case. Filed March not independently inquire about status Court before November represented by

he was counsel rea person rely

sonable inform of the state court’s decision. Pamilla, Attorney, Thomas Damien Law Further, a reasonable Pamilla, APC, D. Fre- Offices Thomas anticipate Stender, mont, Christopher John Es- deny Court would for review quire, Attorney, Immigration Federal . as it quickly Carey, did. See v Huizar Counselors, PC, Phoenix, AZ, AZ, for Peti- 1220, 1224 (9th 2001) (stating tioner without reservation is “not that months K. unusually long Pergolizzi, Attorney, Sarah Trial an a prisoner] [for decision”). OIL, Justice, Department wait DOJ—U.S. Accordingly, Immigration Litiga- Civil Division/Office tion, DC, ICE, Washington, from the date the California Chief Counsel Court’s Department denial Office the Chief Francisco, final Security, became Homeland San Because Bobadilla for Respondent filed