Appeal from the United States District Court for the District of Nevada Edward C. Reed, District Judge, Presiding, D.C. No. 3:02-CV-00617-ECR-RAM.
The opinion of the court was delivered by: Wallace, Senior Circuit Judge
Argued and Submitted March 9, 2009 -- San Francisco, California
Submission Vacated and Deferred March 12, 2009
Resubmitted August 4, 2009
Filed August 25, 2009; Amended May 14, 2010
Before: J. Clifford Wallace, Sidney R. Thomas and Jay S. Bybee, Circuit Judges.
Randle is currently serving several life sentences without the possibility of parole in Nevada state prison. He appeals from a district court order dismissing his petition for writ of habeas corpus on statute of limitations grounds. He argues that the one-year statute of limitations on federal habeas claims does not bar his petition because (1) the respondents waived this affirmative defense, (2) judicial estoppel precludes the respondents from asserting this defense, (3) his petition is in fact timely under the statute, and (4) he is entitled to equitable tolling. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291 and 2253. We affirm.
In 1996, Randle was tried and convicted in a Nevada state court on a five-count felony indictment, including first degree murder with use of a deadly weapon. He was sentenced to the equivalent of four consecutive life sentences without the possibility of parole. His judgment of conviction was filed on August 5, 1996. Under Nevada law, Randle had until September 4, 1996 (30 days from the entry of judgment) in which to file a notice of appeal from his conviction and sentence. Randle failed to do so.
On September 18, 1996, two weeks past the appeal deadline, Randle's counsel filed a Motion to Withdraw as Counsel of Record and a Motion for Extension of Time within which to File a Notice of Appeal. Counsel also requested the appointment of a state public defender to represent Randle on direct appeal. On October 1, 1996, at a hearing on the motions, the state trial court granted the motion to withdraw and appointed a state public defender to represent Randle. As for the request for an extension of time to appeal, the trial court expressed doubts regarding its authority to grant this request. The record does not reflect whether this motion was granted.
On October 23, 1996, almost two months past the appeal deadline, Randle's state public defender filed an untimely notice of appeal from Randle's conviction and sentence. The Nevada Supreme Court did not immediately respond. Meanwhile, during December of that year and January of the next, Randle wrote to the public defender twice, requesting a copy of his case file. On January 28, 1997, the public defender responded to these requests, stating that "this office cannot duplicate your entire file because of the expense and time involved. The original file will be provided to you upon request after the appeal is decided by the [Nevada] Supreme Court."
Two months later, on March 25, 1997, the public defender filed in the Nevada Supreme Court a Motion Seeking Leave to File Untimely Docketing Statement and a Motion for Guidance. The latter motion sought "guidance as to how to proceed with the submission of appellant's opening brief given that the notice of appeal was not timely filed through no fault of the Nevada State Public Defender's Office." No response came from the Nevada Supreme Court on these motions.
On March 31, 1997, Randle wrote to the public defender, this time requesting a copy of the "appeal brief that you are preparing in my behalf." Randle followed up on this request in a letter to the public defender dated May 19, 1997. The public defender does not appear to have responded to these inquiries, and it does not appear that any briefs were filed in Randle's appeal.
On June 18, 1997, the Nevada Supreme Court dismissed Randle's appeal for lack of jurisdiction. The court held that Randle's trial counsel had failed to perfect a direct appeal, and "[n]either this court nor the [state] district court has authority to extend the time for filing a notice of appeal. . . . An untimely notice of appeal fails to vest jurisdiction in this court." In dismissing Randle's appeal, the court stated that "it appears that appellant may have an appropriate remedy in the form of a post-conviction petition in the [state] district court for a writ of habeas corpus" under state law.
A month later, on July 16, 1997, the public defender wrote to Randle, informing him of the Nevada Supreme Court's decision. The public defender advised Randle that despite the court's ruling, "[y]ou do, however, have the right to continue attacking your conviction by filing a post-conviction petition for a writ of habeas corpus" under state law. The public defender also offered that "[y]ou have one year from the date of the remittitur to file a petition. To avoid a procedural bar for delay beyond one year, you must file your petition prior to July 8, 1998."
On July 16, 1997, Randle requested his complete case file from the public defender. On July 27, Randle wrote to the pubic defender, stating that he had received some of these materials, but that certain trial transcripts were missing. The public defender responded on August 5, stating that "[w]e sent you all the files that we had. Your letter seems to refer to only one box. However, we sent you two boxes of materials. If you have only received one box please let me know and perhaps we can track down the other box." The record does not ...