DERRICK LAKEY, Pеtitioner-Appellant, v. RODERICK HICKMAN, Respondent-Appellee.
No. 09-15940
D.C. No. 2:05-cv-01864-JAM-GGH
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed January 5, 2011
Amended February 10, 2011
633 F.3d 782
Before: J. Clifford Wallace and Sidney R. Thomas, Circuit Judges, and Richard Mills, Senior District Judge.* Opinion by Judge Wallace
*The Honorable Richard Mills, Senior United States District Judge for the Central District of Illinois, sitting by designation.
Argued and Submitted September 15, 2010—San Francisco, California
Mark David Greenberg, Oakland, California, for petitioner-appellant Derrick Lakey.
ORDER
The court‘s opinion filed January 5, 2011, slip op. 403, and appearing at ___ F.3d ___, 2011 WL 13922 (9th Cir. 2011), is hereby amended as follows:
- On page 406, line 8, delete “We have jurisdiction pursuant to
28 U.S.C. § 2253 , and we dismiss the appeal because Lakey‘s habeаs petition is time-barred under28 U.S.C. § 2244(d) (1996).” Replace that text with “We have jurisdiction pursuant to28 U.S.C. § 2253 , and we vacate the district court‘s denial of Lakey‘s petition on the merits, remand, and direct that the district court dismiss Lakey‘s habeas petition as time-barred.” - On page 413, line 11, delete “We thereforе dismiss his appeal from the denial of habeas relief and instruct the district court to enter an order dismissing Lakey‘s federal petition as time-barred under
28 U.S.C. § 2244(d) ‘s statute of limitations.” Replace that text with “We therefore vacate the district court‘s denial of Lakey‘s habeas petition оn the merits and remand with an instruction that the district court enter an order dismissing Lakey‘s federal petition as time-barred under28 U.S.C. § 2244(d) ‘s statute of limitations.” - On page 413, line 15, delete “DISMISSED WITH INSTRUCTIONS.” Replace that text with “VACATED and REMANDED with INSTRUCTION.”
With these changes, the panel has voted to deny the petition for panel rehearing. Judge Thomas has votеd to deny the peti
The petition for rehearing and the petition for rehearing en banc are DENIED. No subsequent petitions for rehearing or rehearing en banc may be filed.
OPINION
WALLACE, Senior Circuit Judge:
Petitioner-Appellant Derrick Lakey, a California state prisoner, appeals from the district court‘s denial of his petition for a writ of hаbeas corpus. We have jurisdiction pursuant to
I.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) allows state prisoners only one year from the completion of the direct review process in state court to apply in federal court for a writ of habeas corpus.
Over the next three years, Lakey initiated a series of unsuccessful state-court applications for post-сonviction relief, including two rounds of state habeas petitions. Lakey began his first round of state petitions in California superior court on April 5, 2003. After that court denied relief, Lakey slowly worked his way to the Supreme Court of California, which rejected his first round of claims without comment on August 25, 2004. Thirty dаys later, on September 24, 2004, Lakey initiated a second round of state habeas proceedings. The state trial court rejected this second set of claims on November 5, 2004, and the state court of appeal summarily denied relief on December 22, 2004. Nearly one year lаter, on December 15, 2005, the Supreme Court of California denied Lakey‘s final petition for post-conviction review as untimely.
Lakey filed his federal petition in the Eastern District of California on September 15, 2005, which was 267 days after the state court of appeal summarily denied Lakеy‘s second round of post-conviction relief and 90 days before the state supreme court rejected those claims on timeliness grounds. According to Lakey and the State, at least 352 days of AEDPA‘s 365-day limitations period had expired by the time Lakey filed his federal petition. One hundred fifty-sеven days ran from the finalization of Lakey‘s direct appeal on October 30, 2002, and the filing of his initial state petition on April 5, 2003. The parties agree that another 165 days expired as a result of two lengthy filing delays that occurred during Lakey‘s first round of state habeas proceedings: an 84-day gap following the state trial court‘s denial of relief and an 81-day delay in seeking review from the state supreme court after
Although both parities agree thаt at least 352 days had expired by the time Lakey filed his federal petition, they dispute whether any additional time had lapsed. Lakey contends that the remaining time is subject to both statutory and equitable tolling. According to the State, however, an additional 267 days of the limitations period expired between December 22, 2004, when the California Court of Appeal summarily denied Lakey‘s second round of state proceedings, and September 15, 2005, when Lakey filed his federal petition. The State maintains that tolling is unavailable during this time because Lakey‘s subsequent petition for rеview to the Supreme Court of California was ultimately denied as untimely under state law. Therefore, the dispute in this case focuses on whether Lakey is entitled to statutory or equitable tolling for the 267 days that his final petition was pending before the Supreme Court of California.
In the federal district court, a magistrate judge recommended that Lakey‘s federal habeas petition be dismissed as time-barred under
In the instant appeal, Lakey challenges the district court‘s denial of habeas relief, contending that he was convicted of first-degree murder in violаtion of his due process rights. Nevertheless, we need not reach the merits of Lakey‘s due process claims if the district court was incorrect when it determined Lakey filed his federal petition within AEDPA‘s statute of limitations. Upon de novo examination of the district court‘s tolling decision, seе Espinoza-Matthews v. California, 432 F.3d 1021, 1025 (9th Cir. 2005), we must determine whether Lakey is entitled to tolling during the pendency of his untimely petition for review to the Supreme Court of California. Unless statutory or equitable tolling are available for the 267 days at issue, Lakey‘s federal petition will be time-barred under
II.
[1] We first address Lakey‘s request for statutory tolling. Under the AEDPA, “[t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted toward any period of limitation . . . .”
[2] Statutory tolling is unavailable for the 267 days at issue here because Lakey‘s final state habeas petition was deemed untimely under California law. In denying Lakey‘s final petition for post-conviction relief, the Supreme Court of California cited its decision of In re Clark, 855 P.2d 729 (Cal. 1993), which “dealt specifiсally with the bar of ‘untimeliness.’ ” Park v. California, 202 F.3d 1146, 1152 n.3 (9th Cir. 2000). Because Lakey‘s untimely petition must be treated as improperly filed, or as though it never existed, for purposes of
[3] We disagree with Lakey‘s contention that White and Bonner are inconsistent with our recent decision in Ramirez v. Yates, 571 F.3d 993 (9th Cir. 2009). In Ramirez, we held that a California petitioner was entitled to statutory tolling during the pendency of a state coram nobis petition that was later denied on the merits due to the petitioner‘s failure to “demonstrate that he . . . proceeded with due diligence,” which is a necessary condition for obtaining coram nobis relief under California law. Id. at 999. According to Lakey, he is likewise entitled to tolling for the 267 days at issuе here because California‘s timeliness rule for state habeas filings frequently requires consideration of a petitioner‘s diligence. See, e.g., People v. Kim, 202 P.3d 436, 449 (Cal. 2009). Nevertheless, unlike in Ramirez, Lakey‘s petition for collateral review was not denied as without merit or for failure to satisfy a ” ‘condition for obtaining relief,’ ” but rather because Lakey failed to comply with California‘s timeliness rule for state habeas petitions. As the Supreme Court explained in Pace,
Thus, statutory tolling is unavailable for the 267 days that Lakey‘s untimely state petition was pending before the Supreme Court оf California. Only equitable tolling can keep Lakey‘s federal petition from being time-barred by 254 days.
III.
[4] We next turn to Lakey‘s request for equitable tolling. We recognize that “a ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstаnce stood in his way’ and prevented timely filing.” Holland, 130 S. Ct. at 2562, quoting Pace, 544 U.S. at 418. “The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness . . . and that the extraordinary circumstances made it impossible to file a petition on time.” Ramirez, 571 F.3d at 997 (internal quotations, citations, and alterаtion omitted). The high threshold of extraordinary circumstances is necessary “lest the exceptions swallow the rule.” Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006) (internal quotations and citation omitted).
[5] In the appeal before us, both parties agree that 352 of days of the limitations period had expired as of December 22, 2004, when the California Court of Appеal summarily denied Lakey‘s second round of state post-conviction proceedings. On April 27, 2005, 126 days later, the Supreme Court issued its decision in Pace, which rendered Lakey‘s federal petition
[6] However, in Townsend and Harris, equitable tolling was appropriate because the petitioners made a showing that they actually relied on a correct interpretation of the Dictado rule in delaying their federal petitions. See Townsend, 562 F.3d at 1206; Harris, 515 F.3d at 1053-54. Lakey does not set forth any facts suggesting similar reliance on our prior precedent. Instead, the notion that Lakey relied on Dictado is belied by the fact that he waited an additional 141 days after Pace was decided to file his federal petition. The petitioners in Townsend and Harris, on the other hand, filed their federal petitions either before or immediatеly after Pace went into effect. Townsend, 562 F.3d at 1206 (petitioner filed his federal petition before Court‘s decision in Pace); Harris, 515 F.3d at 1054 (federal petition filed just fourteen days after Pace). Lakey‘s 141-day delay in bringing his federal petition indicates that he did not diligently pursue his rights. See Holland, 130 S. Ct. at 2562.
[7] Moreover, even if we were to conclude that equitable tolling was appropriate for the time period that thе Dictado rule was still in effect, the statute of limitations would only be tolled until the Court issued its decision in Pace. Once Pace
IV.
[8] For these reasons, we hold that Lakey is not entitled to statutory and equitable tolling. We therefore vacate the district court‘s denial of Lakey‘s habeas petition on the merits and remand with an instruction that the district court enter an order dismissing Lakey‘s federal petition as time-barred under
VACATED and REMANDED with INSTRUCTION.