Appeal from the United States District Court for the Northern District of California, Ronald M. Whyte, District Judge, Presiding, D.C. No. CV-03-01817-RMW.
The opinion of the court was delivered by: Hawkins, Circuit Judge
Argued and Submitted June 8, 2009 -- San Francisco, California
Before: Procter Hug, Jr., Betty B. Fletcher and Michael Daly Hawkins, Circuit Judges.
Anthony Ramirez ("Ramirez") appeals the denial of his 28 U.S.C. § 2254 habeas petition as untimely, arguing that he is entitled to both statutory tolling under 28 U.S.C. § 2244(d)(2) and equitable tolling that together would render his petition timely filed; or, in the alternative, to the commencement of a new limitations period under 28 U.S.C. § 2244(d)(1)(B) because he was denied access to library materials, which new commencement would also render his petition timely filed. Rejecting his § 2244(d)(1)(B) claim, but concluding that the district court must undertake further factfinding to resolve whether Ramirez is entitled to equitable tolling, we vacate and remand.
Ramirez was charged and convicted in a jury trial of residential burglary. He was sentenced to fifty-years-to-life in state prison on the basis of his three prior convictions for first degree burglary, one prior conviction for attempted first degree burglary, one prior conviction for attempted second degree burglary, and one prior conviction for the sale of narcotics. Direct appeals were unsuccessful, and the state court judgment became final on May 21, 2002.
Absent any tolling, the limitations period for a timely federal habeas corpus petition under the Antiterrorism and Effective Death Penalty Act ("AEDPA") would have expired on May 21, 2003. Ramirez filed his first federal habeas petition on June 16, 2004, or 391 days past the running of the un-tolled limitations period.
A range of dates are relevant to determining whether the limitations period was sufficiently tolled to render Ramirez's petition timely. The time line is as follows:
* On April 4, 2002, Ramirez delivered his first post-conviction state habeas petition. The petition was filed on April 9, 2002.*fn1
* On May 8, 2002, the California Superior Court denied Ramirez's first state habeas petition. Ramirez alleges he did not receive notice of the denial of his first habeas petition until either July 22, 2002 or August 1, 2002.
* On May 21, 2002, Ramirez's conviction became final.
* On December 28, 2002, Ramirez delivered his state coram nobis petition attacking a prior 1983 conviction used to enhance his sentence. The petition was filed on January 6, 2003.
* On February 5, 2003, the California Superior Court denied the coram nobis petition.
* On February 13, 2003, Ramirez delivered his appeal of the denial of the coram nobis petition. The appeal was filed on February 18, 2003.
* On February 26, 2003, Ramirez was attacked in prison and taken to the hospital, from which point forward he alleges he was denied access to his legal materials.
* On March 17, 2003, the California Court of Appeal dismissed Ramirez's appeal of the denial of his coram ...