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Cortinas v. Gentry

United States District Court, D. Nevada

July 17, 2018

ARMANDO B. CORTINAS, JR., Petitioner,
v.
JO GENTRY, et al., Respondents.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE

         This closed habeas matter comes before the Court on the petitioner's motion, through appointed counsel, for leave to file an amended petition (ECF No. 5) and application to proceed in forma pauperis (ECF No. 22). Respondents filed an opposition to the motion to amend (ECF No. 20), and petitioner replied (ECF No. 21). On October 30, 2017, the Court ordered the parties to file supplemental briefing. (ECF No. 23). Petitioner filed his supplemental brief on March 14, 2018 (ECF No. 30), and the respondents filed a responding brief on June 5, 2018 (ECF No. 37).

         Petitioner initiated this action on July 13, 2010, by filing a pro se document entitled “Application for Certificate of Appealability.” (ECF No. 1). An internal docketing note of October 26, 2010, indicated that petitioner's filing appeared to be a motion for a certificate of appealability, but that no case for petitioner could be located in this court or several other courts. The note further indicated that the Clerk's Office would send petitioner a letter “requesting a case number.” On November 1, 2010, the Clerk closed the civil case and sent petitioner a letter with habeas corpus forms attached. Neither the Court nor the Clerk's Office has retained a copy of the letters sent to petitioner, and the docketing notes do not reflect what was stated therein.

         Nearly four years later, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was assigned Case Number 2:14-cv-01549-RFB-CWH. The court in that case appointed the Federal Public Defender to represent petitioner and ordered the FPD to file an amended petition no later than March 22, 2017. Instead of filing an amended petition, the FPD moved to stay 2:14-cv-01549-RFB-CWH on the grounds that petitioner's claims should be litigated in the instant, earlier filed action. The FPD then filed in this case a request to be appointed to represent petitioner, which the Court granted, as well as the instant motion for leave to file an amended petition (ECF No. 5), an amended petition (ECF No. 6), and the pauper application (ECF No. 22).

         Following review of both cases, the assigned judges determined that consolidation of the actions was appropriate. On July 13, 2018, Case No. 2:14-cv-01549-RFB-CWH was consolidated into this case, with this case as the base case. Accordingly, this case now contains both the 2010 “Application” and petitioner's 2014 § 2254 petition.

         Petitioner's 2010 “Application” is not clearly a § 2254 petition and contains no claims. Petitioner's 2014 petition is indisputably untimely on its face.[1] Thus, in order to avoid dismissal of his federal habeas action, petitioner asks the Court to reopen this case, construe his 2010 “Application” as a § 2254 petition, and allow him to amend it. Alternatively, petitioner asks the Court to either deem his proposed amended petition filed nunc pro tunc to July 13, 2010 -- the date he dispatched his “application” for filing -- or grant him equitable tolling from the time he filed his application until September 14, 2014 -- the date he dispatched his § 2254 habeas petition for filing in Case No. 2:14-cv-1549-LRH-WGC. (See ECF No. 4 in Case No. 2:14-cv-1549-LRH-WGC).

         This action was never formally closed by any court order and may therefore be reopened. See Dees v Billy, 394 F.3d 1290, 1294 (9th Cir. 2005). However, even construing the “Application for Certificate of Appealability” as a § 2254 petition, there are no allegations in the original petition to which the untimely amended petition could relate back. The Court is not persuaded by petitioner's argument that the application incorporates by reference his entire state habeas petition, as the petition is not attached to the filing. See Lewis v. Nevada, 692 Fed. App'x 353, 355 (9th Cir. 2017) (unpublished disposition). Amendment of the petition filed on July 16, 2010, would therefore be futile, and the request to do so will be denied.

         The Court does not address petitioner's first alternative request- that the Court deem the amended petition filed nunc pro tunc on July 13, 2010 - because under the circumstances of this case petitioner is entitled to equitable tolling to the filing of his September 2014 petition.

         A petitioner can establish an entitlement to equitable tolling under certain, very limited circumstances. Equitable tolling is appropriate only if the petitioner can show that: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is “unavailable in most cases, ” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), and “the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule, ” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner ultimately has the burden of proof on this “extraordinary exclusion.” Id. at 1065. He accordingly must demonstrate a causal relationship between the extraordinary circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007).

         “[E]quitable tolling might well be appropriate” if “the petitioner is affirmatively misled, either by the court or by the State.” Brambles v. Duncan, 412 F.3d 1066, 1070 (9th Cir. 2005) (citing Pliler v. Ford, 542 U.S. 225, 235 (2004) (O'Connor, J., concurring)); see also Rudin v. Myles, 781 F.3d 1043, 1058 n.19 (9th Cir. 2014). The Ninth Circuit has found equitable tolling appropriate where the petitioner was misled into believing that an amended petition would be timely by the court's granting of extensions to file the amended petition. Sossa v. Diaz, 729 F.3d 1225, 1233-35 (9th Cir. 2013). It has also found equitable tolling appropriate when the district court improperly rejected a petition for filing and lost the body of the original petition. Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002). The Ninth Circuit has also held that equitable tolling is appropriate where the court, in receipt of an ambiguous filing from the petitioner that contained no claims, took no action on the petition for more than a year, thereby preventing the petitioner from timely filing a sufficient petition. See Lewis v. Nevada, 692 Fed. App'x 353, 354 (9th Cir. 2017).

         Here, petitioner filed what is an ambiguous document. While it cites 28 U.S.C. § 2254, it is captioned “Application for Certificate of Appealability” and references a denial of a post-conviction petition in an unidentified court. Nevertheless, in response to this filing, the Clerk's Office sent petitioner a letter indicating that his papers had been received and assigned a case number.[2] (ECF No. 2). The letter further stated:

Your case has been submitted for review and action by a judicial officer. Due to this court's extremely heavy case load this review process may take several weeks. You will be notified as soon as further action has been taken and you will receive a copy of all orders filed in this case.

(Id.) From that point, it is unclear what exactly petitioner received from the Court. The action was closed without a written order or judgment. The Clerk's Office mailed petitioner two letters, but the content of those letters is unknown. Without knowing what was stated in the correspondence sent to petitioner, the Court cannot with any certainty conclude that petitioner was advised that his filing was deficient or that the Court had closed the action.[3] Because the Court has not maintained a copy of its letters to petitioner and the docket notes do not reflect what was contained in the letters, the Court draws an inference in petitioner's favor and concludes that neither letter advised petitioner of the deficiencies in his application or that his case had been closed. The Court's failure to notify petitioner that his filing was deficient and that it had closed his case affirmatively misled petitioner into believing he had a § 2254 petition pending. This is an extraordinary circumstance that stood in the way of petitioner timely submitting a proper § 2254 petition containing claims for relief.[4]

         The Court further concludes that petitioner diligently pursued his rights. “The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653 (internal quotation marks and citations omitted). Petitioner was informed that the Court had received his papers, that his case had been assigned a number, that it would take the Court some time to look at his papers, and that he would receive a copy of the Court's orders. Petitioner inquired into the status of his case three months later. As discussed, whatever petitioner received in response to that inquiry, if anything, the Court assumes that it did not alert him to the deficiencies in his application or advise him that his case had been closed. Petitioner thereafter, reasonably, waited for a court order in his case. When none had come four years later - not even a screening order -- he filed another federal habeas petition, perhaps concluding (reasonably) that nothing was ever going to happen in the first case. Nearly four years elapsed from the time of his status request to the filing of the 2014 habeas petition, but petitioner was pursuing a state court motion for post-conviction relief for eight months of that time. (See Exs. 173 & 185). In total, petitioner took no action toward pursuing his rights for a period of more than three years. This time period is not significantly more than what the Ninth Circuit has previously found a reasonable time to wait for a court decision. See Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir. 2001) (holding that twenty-one ...


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