Metropolitan News-Enterprise


Tuesday, July 16, 2019


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Ninth Circuit to Decide En Banc Whether Attorney’s Dallying Created Tolling

Three-Judge Panel Found 66-Day Delay in Getting the Record to Inmate Did Not Excuse Failure to File Habeas Petition Within One Year of State Conviction’s Finality


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday vacated a decision of a three-judge panel denying a tolling of the one-year period for bringing a petition for a writ of habeas corpus after a state court conviction becomes final, with a majority of the judges agreeing to decide en banc the effect of the prisoner having been unable to secure the file from his attorney for roughly two months.

 Judges Dorothy W. Nelson, William A. Fletcher and Jay Bybee comprised the panel that on Oct. 17, 2018, affirmed an order by District Court Judge John A. Mendez of the Eastern District of California denying habeas relief to inmate Anthony Smith, convicted of oral copulation with enhancements.

Smith’s petition for review was denied by the California Supreme Court on March 12, 2014; the conviction became final 90 days later—on June 10, 2014—when the time for seeking certiorari in the United States Supreme Court expired; and the one-year statute began running the next day. His petition was filed on Aug. 14, 2015.

 The petitioner blamed the delay on his attorney, Scott Concklin of Shasta County. He contended Concklin delayed by 66 days in providing his file.

Magistrate Judge’s Recommendation

U.S. Magistrate Judge Allison Claire on Sept. 9, 2016, recommended that the petition be denied. She observed that if the statute was tolled for 66 days, the time for filing the petition would have extended to Aug. 15—and would have been timely.

“Under extraordinary circumstances, counsel’s malfeasance may support equitable tolling,” Mendez said, citing the U.S. Supreme Court’s 2010 decision in Holland v. Florida.

“[H]owever,” she wrote, “petitioner has not demonstrated that the asserted extraordinary circumstances were the cause of his untimeliness,” explaining:

“While the court is convinced that petitioner acted diligently to obtain his appellate record from Concklin, there is no evidence that the delayed receipt of the files made timely filing impossible.”

Mendez on Oct. 27, 2016, adopted the recommendation.

Panel’s Affirmance

In affirming, the three-judge panel said:

“We are willing to assume that the failure of Smith’s counsel to provide his records was an extraordinary circumstance. But when Smith received his records, he had ten months left in which to file his federal petition. Smith did not explain why the two-month deprivation of his records caused his untimely filing. A review of his petition reveals that it is essentially a verbatim copy of his previous state filings. Under these circumstances, the district court was correct to conclude that Smith had not established (1) that the deprivation of his appellate record caused his untimely filing or (2) that he diligently used the ten months of the limitations period that remained after receiving his records.”

Chief Judge Sidney Thomas said in a separate order yesterday that en banc oral argument will take place in San Francisco during the week of Sept. 23.

The case is Smith v. Davis, 17-15874.


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