FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This action proceeds on his July 30, 2009 petition. Petitioner has filed a motion to stay the case pending his exhaustion of his state remedies. See dckt. no. 3. Respondent moves to dismiss this action on the grounds that the petition is time-barred and that petitioner's claims are unexhausted. See Dckt. no. 13. On July 26, 2010, the court found that the petition was mixed, and ordered the parties to file further briefing addressing whether the petition is time-barred and whether there is good cause for petitioner's failure to exhaust all of his claims.
Petitioner was convicted of attempted murder and attempted carjacking. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc.") 1. He was sentenced to thirty-two years to life in state prison. Id.
On October 30, 2007, the California Court of Appeal, Third Appellate District, affirmed the judgment. Lodg. Doc. 2. On February 19, 2008, the California Supreme Court denied review. Lodg. Doc. 4.
The instant petition was docketed on July 30, 2009.
II. Statute of Limitations
Respondent argues that this action is time-barred, as it was filed outside of the one-year statute of limitations. A one-year limitations period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).
The limitations period may also be equitably tolled where a habeas petitioner establishes two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In light of this pronouncement, the Ninth Circuit has reiterated that the threshold necessary to trigger equitable tolling is very high, and clarified that equitable tolling only applies where a petitioner shows that despite diligently pursuing his rights, some external force caused the untimeliness. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner has the burden of showing facts entitling him to equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
In this case, petitioner and respondent agree that his deadline to file his federal habeas petition was May 13, 2009. As explained in the court's August 30, 2010 order, the petition was not filed until July 28, 2009. Thus, unless petitioner is entitled to at least two and a half months of equitable tolling, his petition is time-barred.
Petitioner argues that he is entitled to equitable tolling because: he was placed in administrative segregation from October 30, 2008 until May 5, 2009, and was without his legal materials and library access for much of this time;*fn1 he injured his right hand; he suffered from depression, stress, bipolar disorder and isolation and was placed in the prison's correctional clinical case management system and given medication and therapy; and he was sent to court in Placer County without his legal materials. He also alleges that his petition was further delayed because his prison requires that all petitions longer than 50 pages be approved by the senior librarian,*fn2 and the court returned the first petition that he filed because the prison had provided the wrong form and the court would not accept it.*fn3 Dckt. No. 17.
The court finds that petitioner's placement in administrative segregation and attendant deprivation of law library access and legal materials constitutes extraordinary circumstances warranting equitable tolling. The exhibits attached to petitioner's brief show that petitioner was placed in administrative segregation on October 30, 2008. He filed administrative appeals complaining that he had not received law library access despite repeated requests, which were denied on the grounds that he did not have a pending legal case, as he had not yet filed the instant petition. His administrative appeals complain that he also was denied access to his legal papers while he was in administrative segregation. Exhibit G shows that petitioner finally received his legal papers on April 2, 2009. He was released from administrative segregation on April 30, 2009.*fn4 During the period that petitioner was without library access and without his legal materials, it was impossible for him to prepare a habeas petition. Petitioner has demonstrated that he was diligent during this period in pursuing administrative appeals regarding library access and his legal materials and there was nothing more he could have done. Thus, the court finds that petitioner is entitled to at least five months of equitable tolling (the time that he was without his legal materials) and that his petition is not time-barred.
Respondent argues that petitioner should not be granted equitable tolling because his own conduct caused him to be placed in administrative segregation. Respondent states that petitioner was placed in administrative segregation because he assaulted another inmate. Petitioner contends that he was not at fault in the incident. He has filed a civil rights lawsuit stating that correctional officers failed to protect him from violence during a race riot, and that he was forced to defend himself against another inmate. Ex. B. While the court makes no findings regarding the appropriateness of petitioner's conduct or his placement in administrative segregation, it declines to deny equitable tolling on this basis. The approach that respondent urges would require the court to determine the merits of a prisoner's placement in administrative segregation after being found guilty of an offense in an internal prison proceeding without the benefit of ordinary constitutional safeguards, or alternatively, to simply summarily deny equitable tolling in all such cases rendering the administratively segregated inmate ineligible to challenge the constitutionality of his conviction.
III. Exhaustion of State Remedies
The court previously found that the instant petition is mixed, that is, it contains both an exhausted claim and unexhausted claims. As explained in the court's July 26, 2010 order, a mixed petition may be stayed to allow a petitioner to present unexhausted claims to the state courts. Rhines v. Weber, 544 U.S. 269, 277 (2005). Stay and abeyance is appropriate when there was good cause for the petitioner's failure to exhaust his claims first in state court, his unexhausted claims are ...