United States District Court, D. Nevada
JENNIFER A. DORSEY, District Judge.
This habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' motion (Doc. 14) to dismiss and petitioner's motion (Doc. 23) for a ruling. Having reviewed the parties' submissions, the Court concludes that the just course is to appoint counsel, decide the equitable tolling issues on a more fully developed factual record, and consider the potential propriety of an evidentiary hearing. The Court therefore sua sponte reconsiders and reverses its prior order (Doc. 10) denying Petitioner's motion to appoint counsel. Doc. 4. It also denies the motion to dismiss (Doc. 14) without prejudice to its reassertion and the presentation of all applicable defenses following the filing of a counseled amended petition. However, as the local rules of this Court do not authorize litigants to request a ruling via motion as Petitioner does here, her request (Doc. 23) for a ruling on the motion to dismiss is denied.
A. Motion to Dismiss
Petitioner Joy Winston challenges her Nevada state burglary conviction entered after her plea of guilty but mentally ill. Her notice of appeal was filed shortly before the expiration of the federal limitations period but alleged no specific claims to which later-filed claims could relate back. The federal petition was thereafter constructively filed nearly sixty days after the federal limitations period expired on its face, and absent some basis for tolling, the petition must be dismissed as fatally late. Petitioner presents a number of alleged bases for equitable tolling, including alleged mild retardation or mental illness, intervals without assistance or adequate assistance from other inmates, delays in obtaining copies of state court records and legal files both before and after state post-conviction proceedings, and perhaps errant decisions by inmates who helped her with her challenge to her conviction.
1. Equitable tolling in the Ninth Circuit
The Ninth Circuit recently summarized the legal principles applicable to a claim of equitable tolling as follows:
Beyond statutory tolling, federal habeas petitioners may also be entitled to equitable tolling of the statute of limitations. "[A] petitioner is entitled to equitable tolling only if [she] shows (1) that he has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way and prevented timely filing." "The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence."
After Holland [ v. Florida ], we have continued to rely on our previous equitable tolling cases in which we held that equitable tolling is available "only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time and the extraordinary circumstances were the cause of [the prisoner's] untimeliness." "[T]he requirement that extraordinary circumstances stood in [her] way' suggests that an external force must cause the untimeliness, rather than, as we have said, merely oversight, miscalculation or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling.'"
Nonetheless, "[g]rounds for equitable tolling under § 2244(d) are highly fact-dependent.'" Moreover, the Supreme Court has "made clear that often the exercise of a court's equity powers... must be made on a case-by-case basis... [We] recognize that courts of equity can and do draw upon decisions made in other similar cases for guidance. Such courts exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case."
Sossa v. Diaz, 729 F.3d 1225, 1229-30 (9th Cir. 2013)(internal citations omitted). Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010), outlines the Ninth Circuit's two-part test for determining if a mental illness or impairment warrants equitable tolling:
(1) First, a petitioner must show [her] mental impairment was an "extraordinary circumstance" beyond [her] control... by demonstrating the impairment was so severe that either (a) petitioner was unable rationally or factually to personally understand the need to timely file, or (b) petitioner's mental state rendered [her] unable personally to prepare a habeas petition and effectuate its filing.
(2) Second, the petitioner must show diligence in pursuing the claims to the extent [she] could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance....
628 F.3d at 1099-1101 (emphasis in original)(footnotes omitted).
A habeas petitioner should receive an evidentiary hearing when she makes a good faith allegation that, if true, would entitle her to equitable tolling. Stewart v. Cate, 734 F.3d 995, 1007 (9th Cir. 2013); Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006). In determining whether a pro se petitioner's allegations warrant an evidentiary hearing, the court liberally construes her allegations. Roy, 465 F.3d at 970. Additional factual development is required where the current record "does not clearly answer" the question of whether, inter alia, extraordinary circumstances caused the untimely filing and where it thus cannot be conclusively determined that the petitioner is not entitled to equitable tolling. Porter v. Ollison, 620 F.3d 952, 961-62 (9th Cir. 2010); see also Munoz v. Smith, 2013 WL 5228220, slip op. at *2 (9th Cir. Sept. 18, 2013) ...