Appeal from the United States District Court for the Central District of California. Florence-Marie Cooper, District Judge, Presiding. D.C. No. CV-98-02557-FMC.
The opinion of the court was delivered by: Clifton, Circuit Judge
Argued and Submitted March 9, 2009 -- Pasadena, California.
Before: Michael Daly Hawkins, Marsha S. Berzon and Richard R. Clifton, Circuit Judges.
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, 330 F.3d 1086, 1099 (9th Cir. 2003). The Supreme Court disagreed with and vacated our decision, holding that the advisements were not required. Pliler v. Ford, 542 U.S. 225 (2004). The Court remanded the case for further proceedings, in light of this court's "concern that [Ford] had been affirmatively misled." Id. at 234.
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.
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.*fn1
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, 330 F.3d at 1097; see Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). Ford filed his petitions on April 19, 1997, making both petitions timely, but with only five days to spare. Pliler, 542 U.S. at 228.
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, 455 U.S. 509, 522 (1982), Ford filed at the same time motions to stay proceedings on his petitions. He hoped that by doing so he could return to state court to exhaust his unexhausted claims and then refile in federal court and have all of his claims heard on the merits.
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 select a course of action from among three alternatives. Those options were: (1) to dismiss his petitions without prejudice and then, after exhausting in state court the previously unexhausted claims, to refile in federal court; (2) to dismiss the unexhausted claims and present the federal court with only his exhausted claims; or (3) to demonstrate that all of his claims had already been exhausted in state court. The magistrate judge also told Ford that if he failed to choose one of these options, his petitions would be dismissed without prejudice.
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 further 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 [Ford]'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 Rose 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 AEDPA statute of limitations as one of the factors petitioner should consider in choosing which option to follow." In particular, the court's order at the time "did not inform petitioner that the AEDPA statute of limitations would apply to his second federal petitions, further cementing petitioner's mistaken belief that dismissal without prejudice was the court's suggested method of permitting him to both exhaust his unexhausted claims, and to comply with, or more specifically, to toll, AEDPA's statute of limitations."
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 ...