Brambles v. Duncan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL D. BRAMBLES, 
Petitioner-Appellant, No. 01-55716
v. D.C. No.
W. A. DUNCAN, Warden; C. A.  CV-00-08180-
TERHUNE, Director, California MMM
Department of Corrections, OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding

Argued and Submitted
September 12, 2002—Pasadena, California

Filed June 17, 2005

Before: David R. Thompson, Johnnie B. Rawlinson, Circuit
Judges, and William W Schwarzer,* Senior District Judge.

Opinion by Judge Thompson

*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.

7261
 BRAMBLES v. DUNCAN 7263

COUNSEL

Kenneth M. Stern, Woodland Hills, California, for the
petitioner-appellant.

Lawrence M. Daniels, Deputy Attorney General, Los Ange-
les, California, for the respondents-appellees.
7264 BRAMBLES v. DUNCAN
OPINION

THOMPSON, Senior Circuit Judge:

Michael D. Brambles appeals the district court’s dismissal
of his habeas corpus petition as time-barred under the Antiter-
rorism and Effective Death Penalty Act (“AEDPA”), 28
U.S.C. § 2244(d).

Brambles filed an earlier petition that was timely, but it
included one exhausted and two unexhausted claims. The dis-
trict court told Brambles he could either dismiss the unex-
hausted claims or dismiss the whole petition “without
prejudice to any right [he] may have to file a new petition
once available state remedies are exhausted as to all claims.”
The court also warned Brambles, who was then pro se, that
“recently amended 28 U.S.C. § 2244 limits the time period
within which a petition may be filed.” In fact, the one-year
period within which to file a federal petition had already
expired by the time the district court made this ruling. Thus,
if Brambles dismissed his petition, his right to seek federal
habeas review would be lost unless he could establish equita-
ble tolling.1 See Tillema v. Long, 253 F.3d 494, 503-04 (9th
Cir. 2001) (en banc).

Relying on what the district court told him, and unfamiliar
with the consequences of dismissing his timely petition in its
entirety, Brambles chose to have the entire petition dismissed
without prejudice. He then went back to state court, exhausted
his two unexhausted claims, and thereafter returned to federal
court where he filed his present petition which includes all
three claims. The district court dismissed the petition with
prejudice, finding that it was time-barred.
1
It is undisputed that the one-year period was not extended by statutory
tolling. 28 U.S.C. § 2244(d)(2).
 BRAMBLES v. DUNCAN 7265
Brambles appealed to this court, and we reversed the dis-
trict court. Brambles v. Duncan, 330 F.3d 1197 (9th Cir.
2003). The Supreme Court granted certiorari, and in Adams v.
Brambles, 124 S. Ct. 2903 (2004), vacated our judgment, and
remanded the case to us to decide it consistent with the
Court’s decision in Pliler v. Ford, 124 S. Ct. 2441 (2004). We
obtained further briefing from the parties, have withdrawn our
prior opinion, and now render this decision.

We affirm the district court’s dismissal. We conclude that
while the court failed to inform the pro se Brambles of all of
the consequences of having his entire petition dismissed, the
court did not actively mislead Brambles, and no extraordinary
circumstances existed beyond his control that would account
for his failure to timely file.

I. JURISDICTION

The district court had jurisdiction to consider Brambles’s
habeas petition pursuant to 28 U.S.C. § 2254. We have juris-
diction to review the district court’s dismissal of the petition
pursuant to 28 U.S.C. §§ 1291 and 2253.

II. BACKGROUND

On July 11, 1996, a jury convicted Brambles in California
Superior Court of several crimes including forcible rape, rob-
bery, and assault with a firearm. The trial court sentenced him
to 102 years in prison. Brambles appealed to the California
Court of Appeal, which affirmed both his conviction and sen-
tence. The California Supreme Court denied review on Sep-
tember 2, 1998. Brambles did not file a petition for certiorari
with the United States Supreme Court.

On June 29, 1999, Brambles timely filed, pro se, a habeas
corpus petition (“first petition”) in the United States District
Court for the Central District of California. Two of the three
claims asserted in that petition were unexhausted. The district
7266 BRAMBLES v. DUNCAN
court, on December 13, 1999, twelve days after the AEDPA’s
one-year statute of limitations had expired, ordered Brambles
to:

choose one of the following options [by December
31, 1999]:

1. Dismiss Grounds one and two, the unexhausted
claims. (If petitioner chooses this option he will have
to obtain authorization from the [Federal] Court of
Appeals before filing another petition, pursuant to 28
U.S.C. § 2244.)

2. Request this Court to dismiss the current peti-
tion without prejudice to any right petitioner may
have to file a new petition once available state reme-
dies are exhausted as to all claims. (Petitioner is
cautioned that recently amended 28 U.S.C. § 2244
limits the time period within which a petition may
be filed.) (emphasis in original).

On December 27, 1999, Brambles made his choice. He
requested that “the court grant petitioner option #2[.]” Pursu-
ant to that request, on January 20, 2000, the district court dis-
missed the entire first petition “without prejudice.” On April
11, 2000, Brambles filed, pro se, a habeas corpus petition in
the California Supreme Court. On June 28, 2000, the Califor-
nia Supreme Court summarily denied the petition. Having
exhausted his state remedies, Brambles returned to federal
court and on July 31, 2000 filed, pro se, his present habeas
petition (“second petition”). He asserted the same three claims
in his second petition that he had asserted in his first petition.

The state contended the second petition was time-barred
under the AEDPA’s one-year statute of limitations. Brambles
argued the second petition was timely because the district
court had misleadingly offered him the option of dismissing
his first petition without prejudice. A magistrate judge,
 BRAMBLES v. DUNCAN 7267
assuming Brambles was contending the limitations period
should be equitably tolled, recommended that equitable toll-
ing did not apply and thus the second petition was untimely.
The district court adopted the magistrate judge’s recommen-
dation, and dismissed the second petition with prejudice as
time-barred.

Brambles filed a notice of appeal and applied for a certifi-
cate of appealability (“COA”). The district court denied that
request, but this court issued a COA on the following issue:
“Was the [second] petition timely filed?”

III. STANDARD OF REVIEW

We review de novo the dismissal of Brambles’s second
petition as time-barred. Herbst v. Cook, 260 F.3d 1039, 1042
(9th Cir. 2001). If the facts underlying a claim for equitable
tolling are undisputed, as they are here, we also review de
novo whether the statute of limitations should be equitably
tolled. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999).

IV. DISCUSSION

[1] The AEDPA requires state prisoners to seek federal
habeas corpus relief within one year after their convictions
become final. 28 U.S.C. § 2244(d). Brambles’s conviction
became final on December 1, 1998, ninety days after the Cali-
fornia Supreme Court denied his petition for direct review.
Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999)
(“hold[ing] that the period of ‘direct review’ in 28 U.S.C.
§ 2244(d)(1)(A) includes the [ninety-day] period within
which a petitioner can file a petition for a writ of certiorari
from the United States Supreme Court, whether or not the
petitioner actually files such a petition.”). Because the one-
year limitations period began to run on the next day, and no
period of statutory tolling intervened, Brambles’s federal
habeas petition would have been untimely if filed after
December 1, 1999. Corjasso v. Ayers, 278 F.3d 874, 877 (9th
7268 BRAMBLES v. DUNCAN
Cir. 2002). Brambles timely filed his first federal habeas peti-
tion on June 29, 1999, but, as stated above, that petition was
dismissed. He did not file his second petition until July 31,
2000. Thus, Brambles’s second petition is time-barred unless
the statute of limitations is equitably tolled.

[2] The one-year statute of limitations prescribed in the
AEDPA may be equitably tolled if “extraordinary circum-
stances beyond a prisoner’s control make it impossible to file
a petition on time.” Miles, 187 F.3d at 1107. Brambles con-
tends the district court’s instructions were misleading and
therefore constituted extraordinary circumstances beyond his
control. We disagree. We conclude that while the district
court failed to advise Brambles of the likely consequences of
his procedural options, the instructions presented accurate
options available to Brambles and were not affirmatively mis-
leading.

[3] Our conclusion is compelled by the Supreme Court’s
recent decision in Pliler v. Ford, 124 S. Ct. 2441 (2004). In
that case, the pro se petitioner Ford had timely filed a mixed
petition before expiration of the one-year limitations period
prescribed by the AEDPA. After the statute of limitations had
run, the district court informed Ford he could either delete his
unexhausted claims or dismiss the petition without prejudice,
return to state court, and exhaust the unexhausted claims.
Ford elected to dismiss his petition without prejudice and
return to state court. He did so, and then when he returned to
federal court, the district court dismissed his second petition
with prejudice as time-barred. The Supreme Court held that
a district court does not commit prejudicial error when it fails
to inform a pro se prisoner (1) as to what he would have to
do, procedurally, to invoke the district court’s stay and abey
procedure,2 and (2) that absent equitable tolling, his federal
2
With the stay and abey procedure, “a district court may, in its discre-
tion, allow a petitioner to amend a mixed petition by deleting the unex-
hausted claims, hold the exhausted claims in abeyance until the
 BRAMBLES v. DUNCAN 7269
claims would be time-barred on his return to federal court.
Pliler, 124 S. Ct. at 2446. The Court stated that “[r]equiring
district courts to advise a pro se litigant in such a manner
would undermine district judges’ role as impartial decision-
makers,” and would “force upon district judges the potentially
burdensome, time-consuming, and fact-intensive task of mak-
ing a case-specific investigation” of the applicable AEDPA
limitations period. Id. The Court remanded for a determina-
tion whether the petitioner “had been affirmatively misled
quite apart from the district court’s failure to give the two
warnings.” Id. at 2447; see also id. at 2448 (O’Connor, J.,
concurring) (“Nevertheless, if the petitioner is affirmatively
misled, either by the court or by the State, equitable tolling
might well be appropriate. This is a question for the Ninth
Circuit to consider on remand.”).

[4] Consistent with the Court’s decision in Pliler, the sole
issue before us is whether Brambles was affirmatively misled
by the district court’s instructions. The district court affirma-
tively told Brambles to choose between two alternatives —
dismiss his unexhausted claims and proceed in federal court
only with his then-exhausted claim, or request the district
court to dismiss the entire petition without prejudice and
exhaust his then-unexhausted claims in state court before
returning to federal court. These instructions were not affir-
matively misleading. They presented accurate options avail-
able to Brambles. See 28 U.S.C. § 2244(d)(1); Rose v. Lundy,
455 U.S. 509, 510 (1982); James, 269 F.3d at 1126-27. If
anything was misleading, it was what the district court did not
tell Brambles — that the dismissal of his first petition would
effectively be final unless he could establish that the statute

unexhausted claims are exhausted, and then allow the petitioner to amend
the stayed petition to add the now-exhausted claims.” James v. Pliler, 269
F.3d 1124, 1126-27 (9th Cir. 2001) (citing Calderon v. United States Dis-
trict Court (Taylor), 134 F.3d 981, 988 (9th Cir. 1998), cert. denied, 525
U.S. 920 (1998)); see also Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir.
2003).
7270 BRAMBLES v. DUNCAN
of limitations period was equitably tolled, and that the stay
and abey process was available. However, the Supreme Court
in Pliler admonished district courts against attempting to
explain to pro se litigants these federal habeas procedures,
stating that attempting to do so might prove to be misleading.
Pliler, 124 S. Ct. at 2446.3

V. CONCLUSION

[5] In light of Pliler v. Ford, we conclude Brambles was
not affirmatively misled by the district court, and equitable
tolling is not available to him. We affirm the district court’s
judgment dismissing Brambles’s refiled petition as time-
barred under the AEDPA.

AFFIRMED.

3
Brambles contends his case can be distinguished from Pliler v. Ford.
He argues that, without solicitation, the district court advised him of the
procedure of dismissing, then refiling his petition. Hence, he claims he
was misled more than the petitioner in Pliler. We disagree.
In both Pliler and here, the respective petitioner was provided the same
procedural options. In both cases, the petitioner chose to dismiss his entire
petition without prejudice. Aside from the fact that, prior to the district
court describing the two options, the petitioner in Pliler had moved to stay
his mixed petitions while he exhausted the then-unexhausted claims in
state court, the situations faced by the respective petitioners were essen-
tially the same.