NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 29 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ASHLEY LOWE, No. 10-56201
Petitioner - Appellant, D.C. No. 2:10-cv-02795-JVS-
MLG
v.
DEBORAH K. JOHNSON, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted August 6, 2014
Pasadena, California
Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.
Petitioner Ashley Lowe, who is of limited intellectual ability, was convicted
of a second-degree murder in which she participated at the age of fifteen. In the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
course of an attempted street robbery, her armed companion shot and killed a man.
Lowe accepted a plea and was sentenced to sixteen years to life.
In a pro se habeas petition filed in the district court, she raised a number of
challenges to her conviction. Among other things, she argued that she was not
informed of her rights under Miranda v. Arizona, 384 U.S. 436 (1966), and that
defense counsel was ineffective in failing to explain to her the terms of the plea.
No federal court has heard these claims on the merits, however, because her
petition was filed after the statute of limitations imposed by 28 U.S.C. § 2244(d)
had expired.
When the magistrate judge issued his Report and Recommendation (R&R)
dismissing Lowe’s petition as untimely, he noted that she was entitled to an
opportunity to present arguments as to timeliness under Day v. McDonough, 547
U.S. 198, 210 (2006), and that she could do so by filing objections, which she was
entitled to raise under 28 U.S.C. § 636(b)(1)(C).
Lowe filed objections, asserting that she was entitled to equitable tolling.
She alleged that she had “failed to respond in a timely manner do to fact that there
is few and inadequate resources in the prison law library. Which failed to include
materials about the (AEDPA) habeas corpus rules in filing a writ.” Lowe also
2
argued that equitable tolling was warranted due to her limited access to the law
library and limited education.1
The district judge adopted the R&R and summarily dismissed the petition in
a two-sentence order, stating in relevant part:
[T]he Court has . . . conducted a de novo review of those portions of the
Report and Recommendation to which objections were filed. The Court
accepts and adopts the filings and recommendations in the Report and
Recommendation and orders that judgment be entered dismissing the
petition with prejudice.
The district court order did not, however, address Lowe’s equitable tolling claims.
Our decision in Brown v. Roe, 279 F.3d 742 (9th Cir. 2002), is directly on
point. There as here, a pro se petitioner raised an equitable tolling argument for the
first time in objections to a magistrate’s recommendation that his petition be
dismissed as untimely. Id. at 743. There as here, the district court adopted the R&R
in full and “stated that the court had conducted a de novo examination of the issues
raised in Brown’s objections . . . but it did not mention Brown’s equitable tolling
1
Lowe simultaneously requested appointment of counsel; her request was
denied. Present counsel was appointed pursuant to an order of our court.
3
argument.” Id. at 744. Nor did it “g[i]ve reasons for rejecting it.”2 Id. at 745. Brown
went on to emphasize that “[p]ro se habeas petitioners occupy a unique position in
the law” and to note that Brown – again, like Lowe – had a limited education and
was “functionally illiterate.” Id. We held that “the district court abused its
discretion . . . in failing to consider Brown’s equitable tolling claim” and reversed
and remanded for such consideration. Id. at 745-46.
2
Here, the magistrate’s R&R included what appears to be boilerplate
language explaining the general standard for equitable tolling, and noting that a
“prisoner’s educational deficiencies, ignorance of the law, or lack of legal expertise
is not an extraordinary circumstance and does not equitably toll the limitations
period.” The R&R also stated that “[e]quitable tolling is not available to Petitioner
on the record before the Court.”
Plainly, this language cannot have been included in response to the
objections by Lowe, since the R&R was issued before she lodged those objections.
Brown requires meaningful consideration of a pro se petitioner’s equitable tolling
arguments; preemptive rejection is quite obviously not meaningful consideration.
At any rate, neither the R&R nor the district court’s summary order mentioned
Lowe’s argument regarding inadequacy of the law library.
The magistrate judge was correct that limited education, at least on its own,
is insufficient to warrant equitable tolling. See Ford v. Pliler, 590 F.3d 782, 789
(9th Cir. 2009) (“A petitioner’s misunderstanding of accurate information cannot
merit relief, as equitable tolling requires a petitioner to show that some
‘extraordinary circumstance[] beyond [his] control’ cause his late petition, and this
standard has never been satisfied by a petitioner’s confusion or ignorance of the
law alone.” (citations omitted)). However, educational level is relevant in assessing
whether a petitioner was diligent in pursuing his rights, and in evaluating whether
an external factor posed enough of an obstacle to warrant equitable tolling. See
Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011) (explaining that petitioner’s
educational level should be considered in determining whether it was reasonable to
expect him to realize that his counsel was performing inadequately and attempt to
obtain alternate assistance or to litigate himself).
4
As a pro se petitioner raising equitable tolling arguments for the first time in
response to a magistrate judge’s recommendation that her petition be dismissed as
untimely, Lowe, like Brown, was entitled not only to notice and an opportunity to
respond to the dismissal of her petition3; she was also entitled to reasoned
consideration of her claim and “appropriate development of the record.” Id. at 746;
see also Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000).
Because the district court abused its discretion in failing to address Lowe’s
equitable tolling claims, we reverse and remand.4 Because we do so based on
claims that were, undisputedly, properly presented both to the district court and on
appeal, we need not reach Lowe’s uncertified claims or rule on the Motion to Take
Judicial Notice in support of them.
REVERSED and REMANDED.
3
Other circuits have held in unpublished opinions that notice of the
opportunity to raise objections to a magistrate’s R&R is adequate to satisfy Day,
547 U.S. at 210. Fitzpatrick v. Monday, 549 Fed. App’x 734, 738 n.2 (10th Cir.
2013); Torres v. Davis, 416 Fed. App’x 480, 482 (6th Cir. 2011); Nixon v. Beard,
361 Fed. App’x 304, 305-06 (3d Cir. 2010); Wogoman v. Abramajtys, 243 Fed.
App’x 885, 890 n.4 (6th Cir. 2007).
4
Under Brown, which imposes a procedural requirement, the district court
erred in failing to address each of Lowe’s arguments for equitable tolling – not just
the potentially meritorious ones. We note, however, that we have not recognized a
petitioner’s limited education or routine limits on access to a prison law library as
sufficiently extraordinary circumstances to warrant equitable tolling. See, e.g.,
Vang v. Carey, 171 Fed. App’x 579, 580 (9th Cir. 2006).
5
FILED
Lowe v Johnson 10-56201 AUG 29 2014
MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, concurring: U.S. COURT OF APPEALS
I concur with the panel majority’s decision to remand to the district court
with respect to Lowe’s “lack of AEDPA materials” argument in support of
equitable tolling. Although it appears unlikely that the law library where Lowe is
incarcerated in fact has no materials discussing AEDPA’s requirements, the district
court did not address this claim and remand is proper under Brown v. Roe, 279
F.3d 742 (9th Cir. 2002).
However, remand is not necessary with respect to Lowe’s arguments that her
claims should be equitably tolled due to her “lack of education” and “lack of access
to the law library” claims. Ignorance of the law or lack of education alone are not
sufficiently extraordinary circumstances to warrant equitable tolling. See, e.g.,
Ford v. Pliler, 590 F.3d 782, 789 (9th Cir. 2009); Rasberry v. Garcia, 448 F.3d
1150, 1154 (9th Cir. 2006). Further, the routine restrictions on Lowe’s access to
the prison law library do not constitute extraordinary circumstances making timely
filing impossible under Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005).
Because the “lack of education” and “lack of library access” tolling arguments fail
on their merits, remand on those issues would be futile.