FILED
NOT FOR PUBLICATION
NOV 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN M. ALCARAZ, No. 15-15268
Petitioner-Appellant, D.C. No.
2:13-cv-00818-JCM-PAL
v.
BRIAN WILLIAMS, Warden; and MEMORANDUM*
ATTORNEY GENERAL FOR THE
STATE OF NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued October 21, 2016; Resubmitted November 17, 2016
San Francisco, California
Before: GRABER and MURGUIA, Circuit Judges, and O’CONNELL,** District
Judge.
Petitioner Juan M. Alcaraz appeals the district court’s dismissal of his
habeas petition as untimely. Taking Petitioner’s allegations as true and reviewing
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Beverly Reid O’Connell, United States District Judge for
the Central District of California, sitting by designation.
de novo whether equitable tolling applies, Fue v. Biter, No. 12-55307, 2016 WL
6803045, at *2 (9th Cir. Nov. 17, 2016) (en banc), we reverse and remand.
Petitioner has demonstrated "(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (internal
quotation marks omitted). "[D]etermining whether a petitioner acted with
reasonable diligence is a fact-specific inquiry." Fue, 2016 WL 6803045, at *2.
Petitioner’s lawyer had abandoned him, Petitioner had no access to his case
file, and he diligently contacted the state court at regular intervals less than a year
apart: in August 2011, April 2012, October 2012, and December 2012. See id.
(reaffirming that "twenty-one months is not an unusually long time to wait for a
court’s decision" (internal quotation marks omitted)). Once he learned of the state
court’s decision, he diligently sought to obtain his case file—by contacting his
lawyer and the state court. See, e.g., Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir.
2009) ("[I]t is unrealistic to expect a habeas petitioner to prepare and file a
meaningful petition on his own within the limitations period without access to his
legal file." (internal quotation marks omitted)); Spitsyn v. Moore, 345 F.3d 796,
801 (9th Cir. 2003) ("But without the file, which [the lawyer] still possessed, it
seems unrealistic to expect [the prisoner] to prepare and file a meaningful petition
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on his own within the limitations period."); accord Gibbs v. Legrand, 767 F.3d
879, 889 (9th Cir. 2014); Espinoza-Matthews v. California, 432 F.3d 1021,
1027–28 (9th Cir. 2005). Unlike the petitioner in Waldron-Ramsey v. Pacholke,
556 F.3d 1008 (9th Cir. 2009), Petitioner has been (so far as the record reveals)
fully cooperative, affirmatively active in seeking his legal files, and unable to
review any part of his files. Petitioner had miscalculated his federal due date but
he "filed his federal petition . . . well within the time he thought he had remaining."
Fue, 2016 WL 6803045, at *4.
REVERSED and REMANDED.
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