Randle v. Crawford

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PATRICK H. RANDLE,  No. 08-15657
Petitioner-Appellant, D.C. No.
v. 3:02-CV-00617-
JACKIE CRAWFORD; NEVADA  ECR-RAM
ATTORNEY GENERAL, ORDER AND
Respondents-Appellees. AMENDED
 OPINION

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, District Judge, Presiding

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.

Opinion by Judge Wallace

6963
6966 RANDLE v. CRAWFORD

COUNSEL

Franny A. Forsman, Federal Public Defender, and John C.
Lambrose, Assistant Federal Public Defender, Las Vegas,
Nevada, for the petitioner-appellant.
 RANDLE v. CRAWFORD 6967
Catherine Cortez Masto, Attorney General, and Dennis C.
Wilson, Deputy Attorney General, Las Vegas, Nevada, for the
respondents-appellees.

ORDER

The court’s opinion filed August 25, 2009, slip op. 11749,
and appearing at 578 F.3d 1177 (9th Cir. 2009), is hereby
amended. An amended opinion is filed herewith.

With this amended opinion, the panel has voted to deny the
petition for panel rehearing. Judge Thomas and Judge Bybee
have voted to deny the petition for rehearing en banc, and
Judge Wallace so recommends. The full court has been
advised of the petition for rehearing en banc, and no judge has
requested a vote on whether to rehear the matter en banc. Fed.
R. App. P. 35.

The petition for rehearing and the petition for rehearing en
banc are DENIED. No subsequent petitions for rehearing or
rehearing en banc may be filed.

OPINION

WALLACE, Senior Circuit Judge:

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 pre-
cludes the respondents from asserting this defense, (3) his
petition is in fact timely under the statute, and (4) he is enti-
6968 RANDLE v. CRAWFORD
tled to equitable tolling. We have jurisdiction over this timely
appeal pursuant to 28 U.S.C. §§ 1291 and 2253. We affirm.

I.

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 pos-
sibility of parole. His judgment of conviction was filed on
August 5, 1996. Under Nevada law, Randle had until Septem-
ber 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 dead-
line, 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. Mean-
while, 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
 RANDLE v. CRAWFORD 6969
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 Guid-
ance. The latter motion sought “guidance as to how to pro-
ceed 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
6970 RANDLE v. CRAWFORD
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 materi-
als. If you have only received one box please let me know and
perhaps we can track down the other box.” The record does
not reflect whether Randle responded to this communication.
However, Randle alleges he obtained the bulk of his case file
by late August 1997.

Randle mailed his pro se state habeas petition to the state
district court for filing on January 26, 1998, within the time
period set forth by the public defender. The state court subse-
quently appointed counsel for Randle to assist him in pursu-
ing his petition. Then, on December 22, 1998, the state court
denied Randle’s petition. In its order, the state court first
determined that the petition was untimely. Under Nevada law,
a defendant generally has one year from the “entry of the
judgment of conviction” to file a state habeas petition. Nev.
Rev. Stat. § 34.726(1). Thus, Randle’s state habeas petition
was due on or before August 5, 1997, and not by July 8, 1998,
as he had been advised by the public defender. Nevertheless,
the state court held that “in light of the fact that [Randle] did
not have the opportunity to address his issues on direct
appeal, the court will consider the merits” of the petition. The
state court then proceeded to deny Randle’s petition on the
merits.

Randle appealed from this ruling pro se, but the Nevada
Supreme Court remanded the case back to the state district
court for appointment of counsel. Counsel was appointed, and
 RANDLE v. CRAWFORD 6971
Randle’s appeal proceeded. On September 3, 2002, the
Nevada Supreme Court affirmed the state district court’s
order, denying Randle’s petition. With respect to the timeli-
ness of the petition, the Nevada Supreme Court held that the
state district court did not abuse its discretion in its determina-
tion of good cause to overcome the procedural bar.

Then, Randle turned to the federal court. On November 18,
2002, Randle signed and mailed a pro se federal habeas peti-
tion to the federal district court for filing. The district court
subsequently appointed counsel on January 21, 2003. With
assistance of counsel, Randle filed an amended federal habeas
petition on October 28, 2003.

On December 10, 2003, the respondents in the federal case
filed a motion to dismiss Randle’s federal petition, arguing
that several of the claims asserted in Randle’s petition were
unexhausted. They did not raise the statute of limitations
defense. Rather than oppose this motion, Randle entered into
a stipulation, filed February 5, 2004, to stay his federal habeas
petition, pending exhaustion of his unexhausted claims. The
stipulation acknowledged that Randle had already filed a sec-
ond state habeas petition, on September 24, 2003, raising
these unexhausted claims in state district court. The stipula-
tion further states:

To facilitate Randle’s exhaustion of Ground II (A-N)
in this case, undersigned counsel respectfully urge
this Court to stay and administratively close this case
pending exhaustion of unexhausted claims in state
court without entry of judgment. Counsel further
request that Randle be permitted to reopen this case,
under the same case number and before the same
magistrate, following exhaustion of his claims in
state court.

On March 29, 2004, the federal district court dismissed
Randle’s federal petition without prejudice and without entry
6972 RANDLE v. CRAWFORD
of judgment. The court stated that Randle “may return to this
court and move to reopen this action, under the same case
number, and before the same undersigned United States Dis-
trict Court Judge, after exhausting his state court remedies
with respect to his unexhausted claims.”

Randle then returned to state court to litigate his second
state habeas petition. The state district court granted him
habeas relief. But the Nevada Supreme Court reversed the
state district court’s order on appeal. The Nevada Supreme
Court further denied Randle’s petition for rehearing. Remitti-
tur in his state case was issued on July 11, 2006.

On August 8, 2006, Randle moved to reopen his federal
habeas case. The motion was unopposed, and the federal dis-
trict court granted the motion on January 25, 2007. The
respondents subsequently filed a motion to dismiss on May
11, 2007, arguing for the first time that Randle’s federal peti-
tion was barred by the one-year statute of limitations applica-
ble to federal habeas claims. The district court granted the
motion to dismiss, agreeing with the respondents that the stat-
ute of limitations barred Randle’s petition. This appeal fol-
lowed.

II.

We review de novo a district court’s order denying a
habeas petition on statute of limitations grounds. Harris v.
Carter, 515 F.3d 1051, 1054 (9th Cir. 2008).

A.

[1] Randle first argues that the respondents waived the
statute of limitations defense by not raising it earlier in these
proceedings. In Morrison v. Mahoney, we reiterated that
“ ‘[t]here is no dispute that [the] statute of limitations [for
habeas petitions] is an affirmative defense . . . . Accordingly,
Federal Rules of Civil Procedure 8(c) and 12(b) require that
 RANDLE v. CRAWFORD 6973
the state raise the statute of limitations in its first responsive
pleading to avoid waiving the defense.’ ” 399 F.3d 1042,
1046 (9th Cir. 2005), quoting Nardi v. Stewart, 354 F.3d
1134, 1140 (9th Cir. 2004), abrogated on other grounds by
Day v. McDonough, 547 U.S. 198 (2006).

[2] In Morrison, we applied this principle to a case where
the state failed to raise a procedural default defense in a
motion to dismiss, but subsequently asserted the defense in its
answer. We stated that “Rule 7(a) defines ‘pleadings’ as a
complaint and answer; a reply to a counterclaim; an answer
to a cross-claim; and a third party complaint and answer.”
Morrison, 399 F.3d at 1046. Guided by this rule, we con-
cluded that a “motion to dismiss is not a responsive pleading
within the meaning of the Federal Rules of Civil Procedure,”
therefore the state did not waive its procedural default defense
in that case. Id. at 1047, citing United States v. Valdez, 195
F.3d 544, 548 (9th Cir. 1999) (holding that the state’s failure
to raise a procedural default defense in district court did not
result in waiver because “the government only filed a motion
to dismiss, which was granted, and never filed an answer” to
the habeas petition).

[3] Here, Randle argues that the respondents cannot now
assert the statute of limitations because they did not raise the
defense (1) in their first motion to dismiss, filed December 2,
2003, (2) as part of the stipulation to stay the proceedings,
dated February 3, 2004, or (3) as an argument in opposition
to Randle’s motion to reopen his federal habeas case, follow-
ing exhaustion of his state remedies. Plainly, none of these fil-
ings (or potential filings, as the case may be with respect to
the opposition to the motion to reopen) constitute “responsive
pleadings” as we have defined the term in Morrison. See 399
F.3d at 1046. Thus, the respondents’ failure to raise the statute
of limitations in these prior filings does not constitute waiver.

[4] Randle argues that we should nonetheless hold the
defense waived under Day v. McDonough. But in Day, the
6974 RANDLE v. CRAWFORD
Supreme Court affirmed a district court’s decision to consider
sua sponte a statute of limitations defense against a state pris-
oner’s habeas petition. 547 U.S. at 210-11. In so holding, the
Court stated that “nothing in the record suggests that the State
‘strategically’ withheld the defense or chose to relinquish it.”
Id. at 211. Seizing on this language, Randle argues that the
respondents here “strategically” chose to waive the statute of
limitations defense by agreeing to the February 3, 2004 stipu-
lation to stay his federal habeas proceedings. This argument
does not persuade us, as the stipulation says nothing about
waiving a pre-existing statute of limitations defense.

Moreover, Randle cannot articulate a coherent strategy evi-
denced by the respondents’ signing of the stipulation. He
states that by entering into the stipulation, and thereby allow-
ing him to exhaust his remedies in state court, the Nevada
Attorney General was relieved of the responsibility of defend-
ing the case in federal court. But it makes little sense for the
state attorney general to forgo a potential dismissal with prej-
udice of the federal case on timeliness grounds for the mere
“benefit” of having the county district attorney assume
responsibility of the defense in state court. This is especially
true given the fact that the stipulation envisioned Randle
returning to federal court once he exhausted his state reme-
dies.

[5] Randle also accuses the respondents of adopting a “dil-
atory litigation strategy,” in that they could have raised the
statute of limitations defense in their first motion to dismiss.
However, there is no evidence that the respondents acted in
bad faith in not asserting the statute of limitations at an earlier
point in the litigation. Randle attempts to argue in a footnote
that he is prejudiced by the state’s delay in asserting the stat-
ute of limitations. We agree with the district court that this
argument is “too general to be given any significant weight.”
Under these circumstances, we conclude that waiver is not
appropriate.
 RANDLE v. CRAWFORD 6975
B.

Second, Randle argues that the doctrine of judicial estoppel
prevents the respondents from asserting the statute of limita-
tions because this defense is inconsistent with the February 3,
2004 stipulation. In determining whether to apply judicial
estoppel, we consider (1) whether a party’s position in the
later judicial proceeding is clearly inconsistent with that
party’s earlier position, (2) whether the party persuaded the
first court to accept the earlier position, so that judicial accep-
tance of an inconsistent position in a later proceeding would
create the perception that one of the two courts was misled,
and (3) whether the party seeking to assert an inconsistent
position would derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped. Hamilton v.
State Farm Fire & Cas. Co., 270 F.3d 778, 782-83 (9th Cir.
2001), citing New Hampshire v. Maine, 532 U.S. 742, 750-51
(2001).

[6] None of these considerations supports application of
judicial estoppel here. First, the respondents’ assertion of the
statute of limitations is not clearly inconsistent with their ear-
lier stipulation to allow Randle to exhaust his state remedies.
As described above, the stipulation did not constitute either an
express or an implied waiver of the statute of limitations
defense. Second, because there is no inconsistency in the
respondents’ positions, there is also no threat that judicial
acceptance of the defense would create the perception that the
district court was misled. Third, Randle has failed to show
that allowing the respondents to pursue the limitations defense
would impose an “unfair detriment” on him. As the district
court stated, if anything the respondents’ late assertion of the
limitations defense allowed Randle to seek — and possibly
win — habeas relief in the state courts.

C.

Third, Randle argues that his petition was timely pursuant
to 28 U.S.C. § 2244(d)(1). That section provides that the one-
6976 RANDLE v. CRAWFORD
year statute of limitations on federal habeas claims runs from
the latest of four specified dates. Applying this provision, the
district court concluded that the one-year limitations period
for Randle’s petition began on September 4, 1996. Randle
argues that the district court erred in this determination.

Randle’s initial argument is that the one-year limitations
period began on July 18, 1997 pursuant to either section
2244(d)(1)(A) or section 2244(d)(1)(B). Starting with subsec-
tion (A), it provides that the one-year limitations period
begins on “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time
for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Randle
argues that the “conclusion of direct review” in his case
occurred on July 18, 1997, the date on which the Nevada
Supreme Court dismissed his direct appeal as untimely.

[7] We have yet to address the issue of whether a state
court’s dismissal of an untimely notice of appeal constitutes
the conclusion of direct review under subsection (A). How-
ever, the Second Circuit faced an analogous situation in
Bethea v. Girdich, where it determined whether a state court’s
decision on a motion to extend the time to appeal or to file a
late notice of appeal “restarted” the one-year limitations
period for purposes of federal habeas review. 293 F.3d 577,
578 (2d Cir. 2002). The court ruled that such a decision does
not restart the limitations period because to hold otherwise
would allow “ ‘state prisoners . . . [to] extend or manipulate
the deadline for federal habeas review by filing additional
petitions in state court,’ thus defeating the goal of the [federal
statute of limitations] to prevent undue delays in federal
habeas review.” Id. at 578-79, quoting Smith v. McGinnis, 208
F.3d 13, 17 (2d Cir. 2000); see also Searcy v. Carter, 246
F.3d 515, 518-20 (6th Cir. 2001) (holding that a state court’s
denial of a motion to file a delayed appeal is not part of the
direct review process for purposes of determining when the
statute of limitations begins to run).
 RANDLE v. CRAWFORD 6977
[8] We agree with the reasoning of the Second Circuit and
hold that the Nevada Supreme Court’s order, dismissing
Randle’s appeal as untimely, did not constitute “the conclu-
sion of direct review” pursuant to section 2244(d)(1)(A). If
the one-year limitations period were made contingent on the
resolution of a petitioner’s attempt to file an untimely notice
of appeal, a petitioner could indefinitely delay the commence-
ment of the one-year period by simply waiting to file such
notice until after the normal expiration date. Sanctioning this
procedure would undermine the statute of limitations for fed-
eral habeas petitions. Bethea, 293 F.3d at 578-79. Therefore,
we reject Randle’s theory that the “conclusion of direct
review” in his case occurred on July 18, 1997.

[9] Section 2244(d)(1)(B) provides that the limitations
period begins on “the date on which the impediment to filing
an application created by State action in violation of the Con-
stitution or laws of the United States is removed, if the appli-
cant was prevented from filing by such State action.” 28
U.S.C. § 2244(d)(1)(B). Randle argues that his state-
appointed counsel failed to perfect a direct appeal of his con-
viction and sentence, and that this failure prevented him from
filing his federal habeas petition until July 18, 1997.

[10] In Bryant v. Arizona Attorney General, we held that
subsection (B) requires the petitioner to “show a causal con-
nection between the unlawful impediment and his failure to
file a timely habeas petition.” 499 F.3d 1056, 1060 (9th Cir.
2007). In this case, Randle has not suggested any such causal
connection between his state-appointed counsel’s failure to
perfect a direct appeal timely and his own failure to file his
federal habeas petition timely. He alleges only that his coun-
sel’s failure to file a timely notice of appeal denied him his
right to direct appeal, not that it prevented him from filing a
federal habeas petition. See, e.g., Shannon v. Newland, 410
F.3d 1083, 1087-88 (9th Cir. 2005) (rejecting a petitioner’s
argument that a decision by an intermediate state appellate
court, which was subsequently overruled by the state supreme
6978 RANDLE v. CRAWFORD
court, constituted an “impediment” to filing a federal habeas
petition pursuant to section 2244(d)(1)(B) because notwith-
standing the state appellate court’s decision, the petitioner
was “free to file such [a federal habeas] petition at any time”).
Bryant leads us to disagree with Randle’s argument that the
one-year limitations period began on July 18, 1997 pursuant
to section 2244(d)(1)(B).

Randle suggests that his inability to file a direct appeal
delayed his filing of his state habeas claim, which in turn
delayed his filing of his federal habeas claim because “under
the law in this Circuit, he could not have filed a Section 2254
action without at least one exhausted claim.” But Randle does
not show how his counsel’s failure to file a direct appeal
delayed the filing of his state habeas action. Randle does not
explain why he could not file his state habeas petition while
awaiting the outcome of his request for leave to file an out-of-
time direct appeal. Instead, as Randle himself recognizes, the
remedy provided by Nevada law for his counsel’s failure to
perfect a direct appeal was his state post-conviction proceed-
ing pursuant to Lozada v. State, 871 P.2d 944, 950 (Nev.
1994). We also reject Randle’s related argument that his state-
appointed counsel’s conduct caused a later start date for the
one-year limitations period pursuant to section 2244(d)(1)(D).
Randle does not explain how his counsel’s conduct could con-
stitute a “factual predicate of the claim or claims presented”
in his federal habeas petition. See 28 U.S.C. § 2244(d)(1)(D).

Changing to another proposed starting date, Randle argues
that the one-year limitations period in his case began on
December 2, 2002 pursuant to section 2244(d)(1)(A). Relying
on the recent Supreme Court decision Jimenez v. Quarterman,
129 S. Ct. 681 (2009), Randle contends that this date was the
date “on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review” as it was ninety days after the state supreme court
affirmed the state trial court’s order, denying his first state
habeas petition.
 RANDLE v. CRAWFORD 6979
The respondents argue that Randle waived this argument on
appeal because he did not raise it until oral argument. The
respondents also point out that in his opening appellate brief,
Randle expressly disclaimed any argument that “his date of
finality occurred when the 1998 habeas action concluded.”
But Randle filed his opening brief on appeal on July 7, 2008.
Jimenez was decided on January 13, 2009. On March 2, 2009,
Randle filed a letter pursuant to Circuit Rule 28(j), advising
the court of Jimenez and raising this argument. Oral argument
was then held in this case on March 9, 2009. Under these cir-
cumstances, where Randle could not have raised his argument
prior to filing his opening brief on appeal, and where he
promptly raised the argument before us once the decision on
which it is based was issued, we conclude that Randle did not
waive this argument on appeal. See Cold Mountain v. Garber,
375 F.3d 884, 891 (9th Cir. 2004) (holding that we have dis-
cretion to consider a new argument on appeal when the issue
arises “because of a change in the law” while the case is on
appeal).

However, we disagree with Randle’s argument on the mer-
its because Jimenez is distinguishable. In that case, the peti-
tioner missed his opportunity to file a direct appeal from his
conviction and sentence in state court. 129 S. Ct. at 683. He
then filed a state habeas petition, arguing that he was denied
his right to appeal. Id. The state court of appeal agreed, and
granted the petitioner the right to file an out-of-time appeal,
which the petitioner promptly pursued. Id. The petitioner’s
conviction was ultimately affirmed. Id. at 684. After the time
in which to petition the Supreme Court for certiorari had
expired, the petitioner filed a federal habeas petition. Id. The
district court dismissed the petition as untimely, rejecting the
petitioner’s argument that the “conclusion of direct review” in
his case occurred when the time expired for seeking certiorari
review of the decision in his out-of-time appeal. Id. The Fifth
Circuit denied a certificate of appealability on the timeliness
issue. Id.
6980 RANDLE v. CRAWFORD
The Supreme Court reversed the judgment of the Fifth Cir-
cuit, reasoning that “direct review cannot conclude for pur-
poses of § 2244(d)(1)(A) until the availability of direct appeal
to the state courts, and to this Court, has been exhausted.” Id.
at 685 (internal citations and quotation marks omitted). In
Jimenez, “the order granting an out-of-time appeal restored
the pendency of the direct appeal and petitioner’s conviction
was again capable of modification through direct appeal to the
state courts and to this Court on certiorari review.” Id. at 686
(internal citation and quotation marks omitted). Thus, the
Court held, “ ‘the date on which the judgment became final by
the conclusion of direct review or the expiration of the time
for seeking such review’ must reflect the conclusion of the
out-of-time direct appeal, or the expiration of the time for
seeking review of that appeal.” Id. at 686-87. The Court
emphasized that this holding is a “narrow one” based on the
“most natural reading of the statutory text.” Id. at 685, 686.

[11] In the case before us, Randle argues that the Nevada
Supreme Court’s decision on his first state habeas petition is
equivalent to a decision on an out-of-time direct appeal. But
unlike Jimenez, the Nevada Supreme Court never granted
Randle leave to file an out-of-time direct appeal. Rather, the
state supreme court explicitly stated that an untimely direct
appeal was foreclosed by state rules, and that “[a]n untimely
notice of appeal fails to vest jurisdiction in this court.” At no
point did the Nevada Supreme Court “restor[e] the pendency
of the direct appeal,” nor was “petitioner’s conviction . . .
again capable of modification through direct appeal to the
state courts and to [the Supreme Court] on certiorari review.”
Jimenez, 129 S. Ct. at 686 (internal citation omitted). Randle
sought to restore his direct appeal, and that request was
rejected by the Nevada Supreme Court. Although Randle was
entitled to present, pursuant to Lozada, the arguments that he
would have presented on direct appeal in his state post-
conviction relief proceeding, his direct appeal was not, and
could not be, reinstated. Jimenez therefore does not apply, and
 RANDLE v. CRAWFORD 6981
we conclude that the one-year limitations period did not begin
on December 2, 2002.

[12] As a third alternative, Randle argues the one-year lim-
itations period began on August 18, 1997, the date on which
he alleges that he finally received the bulk of his case file
from the state public defender. Randle reasons that the delay
he experienced in receiving his files constituted an “impedi-
ment to filing an application created by State action in viola-
tion of the Constitution or laws of the United States” pursuant
to section 2244(d)(1)(B). However, Randle again does not
explain any causal relationship between his inability to
retrieve his files and his failure to file his federal habeas peti-
tion. The record indicates that Randle sought these materials
in order to file his first state habeas petition, not a federal
habeas petition. In a footnote, Randle asserts a possible causal
connection between his counsel’s retention of his file and his
failure to file a timely federal habeas petition: Randle asserts
that he could not file his federal habeas petition until he had
at least one fully exhausted federal claim, and that he could
not file his state habeas petition to exhaust a claim until he
obtained his file. This assertion does not provide a causal con-
nection between counsel’s retention of Randle’s file and his
failure to file his federal habeas petition timely. Pursuant to
section 2244(d)(1), the statute of limitations began on Sep-
tember 4, 1996. Randle concedes, however, he did not begin
to seek his file until sometime in December 1996, after the
statutory clock had already began ticking. Further, although
Randle first sought to obtain a copy of his file commencing
in December 1996, it does not appear from the record that he
sought it for the purposes of filing a state habeas petition until
sometime in July 1997. There is no evidence in the record
that, but for counsel’s retention of his file, Randle would have
sought to file a federal habeas petition, or a state habeas peti-
tion for that matter, within the statutory time limits. We there-
fore disagree that August 18, 1997 is the start date for the
limitations period on Randle’s habeas claims.
6982 RANDLE v. CRAWFORD
[13] Having rejected each of Randle’s alternative start
dates, we conclude that the district court correctly ruled that
the one-year limitations period on Randle’s habeas claims
began on September 4, 1996 pursuant to section
2244(d)(1)(A). Thus, as the district court held, even with the
benefit of statutory tolling pursuant to section 2244(d)(2),
Randle’s petition was untimely by 192 days.

D.

[14] Finally, Randle argues that he is entitled to equitable
tolling of the statute of limitations. Equitable tolling is only
appropriate if “extraordinary circumstances beyond a prison-
er’s control make it impossible to file a petition on time.”
Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quo-
tation marks and citation omitted) (emphasis in original).
Randle argues that he meets this tolling requirement because
(1) his counsel failed to perfect a timely appeal and to inform
him of the time in which to initiate a state habeas petition, and
(2) his counsel failed to provide him with his case files in a
timely manner.

[15] First, as the district court concluded, the alleged negli-
gence of Randle’s counsel had little to no bearing on his abil-
ity to file a timely federal habeas petition. Counsel’s failure
to perfect an appeal simply meant that Randle had one year
from the expiration of his time to file a notice of appeal in
which to initiate a federal habeas action — it did not prevent
him from filing the petition. Similarly, counsel’s incorrect
advice with respect to the time frame in which to file a state
habeas case did not prevent Randle from filing his federal
habeas petition on time. To the extent that his counsel’s negli-
gence in miscalculating the filing deadlines in his state pro-
ceedings resulted in Randle also missing the federal deadline,
we have held that an attorney’s negligence in calculating the
limitations period for a habeas petition does not constitute an
“extraordinary circumstance” warranting equitable tolling.
Miranda, 292 F.3d at 1066-67, citing Frye v. Hickman, 273
 RANDLE v. CRAWFORD 6983
F.3d 1144 (9th Cir. 2001). No such extraordinary circum-
stances are present in this case.

[16] Second, Randle does not allege that his counsel’s
delay in providing him his legal files prevented him from
timely filing his federal habeas petition. Rather, as the district
court found, it appears that Randle sought his legal files in
order to file a state habeas petition. Thus, Spitsyn v. Moore,
345 F.3d 796 (9th Cir. 2003) is distinguishable. In Spitsyn, the
petitioner’s attorney retained the petitioner’s case file through
the duration of the federal limitations period. Id. at 801. Here,
although counsel retained Randle’s file until August 1997,
there is no indication that had Randle received the files
sooner, he would have filed a federal habeas petition within
the one-year limitations period.

As described above, Randle has asserted that his counsel’s
delay in providing his file delayed the filing of his federal
habeas petition because he could not file his federal habeas
petition until he had at least one fully exhausted claim to pre-
sent. But as we have already described, it does not appear that
Randle sought his file for the purpose of filing a state habeas
petition until sometime in July 1997. Further, when Randle
did seek his file, it was for the purpose of filing a state habeas
petition and does not reflect contemplation of a federal habeas
petition. While exhaustion may be required as a legal matter,
the record does not reflect this as a factual cause of Randle’s
delay.

AFFIRMED.