FILED
NOT FOR PUBLICATION JUN 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ENRIQUE TORRES, No. 09-56793
Petitioner - Appellant, D.C.No. 2:08-cv-02936- CAS- RC
v.
MEMORANDUM *
DAVID B. LONG, Acting Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted May 6, 2013
Pasadena, California
Before: PAEZ and IKUTA, Circuit Judges, and SEEBORG, District Judge.**
Petitioner Enrique Torres sought a writ of habeas corpus in the district court
to correct alleged sentencing errors. The district court denied the petition as
untimely, without reaching the merits. Torres’s underlying conviction became
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
final in 1994. Absent tolling, Torres had one year as of April 24, 1996, the
effective date of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), to
file his federal habeas petition. See Bryant v. Arizona Attorney Gen., 499 F.3d
1056, 1059 (9th Cir. 2007). Torres did not file the federal petition, however, until
April 24, 2008, twelve years later.
Torres contends he was entitled to equitable tolling until March of 2005,
based on his alleged inability to comprehend English and the lack of
Spanish-language materials in the prison law libraries. Although the district court
expressed reservations as to whether Torres’s abilities to understand English were
as limited as he claimed and whether he had exercised due diligence in any event,
it did not hold an evidentiary hearing on those issues. Instead, the court held that
even if Torres’s language challenges might support application of equitable tolling
up to the point he filed his first habeas petition in state court in 2003, he had not
demonstrated an entitlement to “gap tolling” sufficient to excuse the numerous
lengthy delays during a series of eleven habeas petitions he filed in state court
before finally bringing the current federal petition.
Even assuming that under Mendoza v. Carey, 449 F.3d 1065 (9th Cir.
2006), it would have been an abuse of discretion to find Torres’ claimed language
deficiencies did not support tolling without an evidentiary hearing, the district
2
court did not rest its decision on any such finding. Rather, the court assumed for
purposes of analysis that Torres would be entitled to tolling based on his purported
limitations in English, and found the petition time-barred nonetheless.
We take a similar course and give Torres the further benefit of the doubt that
he might be entitled to equitable tolling for language deficiencies until as late as
March 23, 2005, the date he admits his English skills had become adequate. We
nevertheless affirm the judgment, because even assuming Torres is or might be
entitled to “gap” tolling for certain of the time periods in which he had no state
habeas petition pending, the record shows that the limitations period necessarily
expired prior to the filing of this petition.
I.
A district court’s denial of a petition for writ of habeas corpus is reviewed de
novo, and denial of an evidentiary hearing is reviewed for abuse of discretion.
United States v. Sandoval-Lopez, 409 F.3d 1193, 1195 (9th Cir.2005) (citing
United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir.2003)). Findings of fact
made by the district court are reviewed for clear error. Moran v. McDaniel, 80 F.3d
1261, 1268 (9th Cir.1996).
We need not decide whether Torres made a sufficient showing under
Mendoza to be entitled to an evidentiary hearing on the extent and effect of his
3
English language deficiencies, were equitable tolling on such basis potentially
sufficient to render his petition timely. See Mendoza, 449 F.3d at 1069 (“So long
as there are some circumstances ‘consistent with petitioner’s petition and
declaration’ that would entitle the petitioner to equitable tolling, remand is
appropriate.” (quoting Whalem/Hunt v. Early, 223 F.3d 1146, 1148 (9th Cir.
2000))). We can presume that Torres was entitled to equitable tolling until March
23, 2005, which, as noted, is the time by which he admittedly had gained sufficient
English language skills.1
1
The district court presumed only that Torres might have been entitled to
equitable tolling up until the date he filed his first state habeas petition in 2003.
Because the filing of that petition does not conclusively establish that Torres at all
times thereafter necessarily had sufficient English language skills and/or
translation assistance to pursue the matter, we will not rely on that earlier date.
That said, the record demonstrates that Torres had the assistance of a translator
when he filed his second state court petition on December 10, 2004. As the same
person assisted Torres in filing his third state court petition in June of 2005, it is by
no means established that Torres was without translation assistance between
December of 2004 and March of 2005. Because petitioners are not entitled to
equitable tolling on the basis of language abilities once they have assistance from a
translator, see Mendoza, 449 F.3d at 1070, we would be on solid ground to
presume any entitlement to equitable tolling ended no later than December 10,
2004. Doing so would render Torres’s federal petition untimely by an additional
47 days.
4
II.
The question then becomes whether more than one year of non-tolled time
elapsed between March 23, 2005, the latest possible time Torres became
sufficiently proficient in English, and the filing of his federal petition. Statutory
tolling applies during “[t]he time during which a properly filed application for
State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending." 28 U.S.C. § 2244(d)(2). In California, so called
“gap-tolling” applies to exclude the time between the denial of relief by a lower
state court and the filing of another petition in a higher state court, if the time delay
is reasonable. See Evans v. Chavis, 546 U.S. 189, 191–92 (2006). Although there is
no hard rule for what constitutes a reasonable time delay in California, this Court
has found an upper limit of approximately sixty days to be appropriate, unless an
adequate explanation for additional delay has been provided. See Velasquez v.
Kirkland, 639 F.3d 964, 967-68 (9th Cir. 2011); Noble v. Adams, 676 F.3d 1180
(9th Cir. 2012). A petitioner may also be entitled to gap tolling even where later
petitions are not filed in a court of greater jurisdiction, if (1) “subsequent petitions
are limited to an elaboration of the facts relating to the claims in the first petition,”
and (2) the petitions were timely filed. Banjo v. Ayers, 614 F.3d 964, 968–69 (9th
Cir. 2010). On the other hand, if the subsequent petition is not limited to an
5
elaboration of facts in the first petition, “the subsequent petition constitutes a new
round of collateral attack, and the time between them is not tolled.” Id.
Here, construing every doubtful question in Torres’s favor, the statute still
expired prior to the filing of this petition. At least 92 days elapsed between the
time Torres admits his English skills became adequate and the filing of his third
state court petition. Because the third petition was summarily denied and no
explanation for its filing outside the timeliness window appears, those days cannot
be tolled. No basis for tolling of the 62 day gap between the sixth and seventh
petitions exists as the seventh petition was denied as duplicative and was
commenced in a lower court, thereby starting a “new round.” Similarly the 61 day
gap between the 7th and 8th petitions cannot be tolled as the latter petition was not
brought in a higher court and did not represent an effort to address the deficiencies
of the former. No basis to toll the 98 day gap between the 8th and 9th petition
appears as the latter added new claims and started a “new round.” Finally, there
can be no dispute that the statute was running during the 56 days between the
denial of Torres’s final state petition and his bringing of the present petition in the
district court.
Thus, at an absolute minimum 369 non-tolled days elapsed, putting Torres
outside the limitations period, even assuming he has shown, or could possibly
6
show on remand, an entitlement to tolling of the other gap periods.2 If, as noted
above, the time period was calculated from December of 2004 when Torres
undisputedly had translation assistance, his petition was untimely by an additional
47 days. Furthermore, there was a 123 day gap between the 4th and 5th petitions,
well in excess of what is presumptively reasonable, for which no explanation has
been provided. While the absence of the fourth petition from the record creates an
ambiguity, it is at best doubtful that a basis for tolling of that gap could be
established.3
Accordingly, under any reasonable set of assumptions, the total non-tolled
elapsed days exceed the one year window during which Torres could bring his
federal habeas petition. Accordingly, the district court did not err in finding the
petition untimely, and no evidentiary hearing on equitable tolling prior to March of
2005 was necessary.
2
On any remand, Torres would also have to prevail on his equitable tolling
claim premised on his asserted language deficiency.
3
Additionally, Torres virtually conceded no basis exists to toll the 215 day
gap between his 9th and 10th state petitions. While the record demonstrates Torres
brought a motion for reconsideration regarding the 9th petition, which would allow
us to conclude the resulting shorter gaps may have been tolled, see Banjo, 614 F.3d
at 969, he did not so argue in his briefing. Nor did Torres even mention the
reconsideration motion. Accordingly, it is unclear whether Torres adequately
preserved the right to claim tolling of the period between the 9th and 10th
petitions.
7
AFFIRMED.
8
FILED
Torres v. Long, No. 09-56793 JUN 14 2013
MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, dissenting, U .S. C O U R T OF APPE ALS
I respectfully dissent. The majority claims that it “constru[es] every
doubtful question in Torres’s favor.” Mem. at 6. I disagree. In my view, this case
presents several close questions, which require careful examination of the facts and
further record development, that are best resolved by the district court in the first
instance. If the panel truly construed all doubts in Torres’s favor, he would be
eligible for tolling sufficient to make his habeas petition timely. I first address
Torres’s right to an evidentiary hearing on his equitable tolling claim and then
address the various gap tolling periods the majority relies upon in affirming the
district court’s decision finding Torres’s petition untimely.
The fact that Torres had access to some translation assistance in December
2004 does not mean that he had continued access to translation assistance after that
date. Indeed, he declares in his affidavit that he did not. Mendoza v. Carey, 449
F.3d 1065, 1070 (9th Cir. 2006), stands for the reasonable proposition that a
petitioner with access to translation services is not eligible for equitable tolling on
the basis of a language barrier. It does not, however, stand for the proposition that
if a petitioner ever has access to translation assistance, no matter how ephemeral, a
petitioner is ineligible for equitable tolling for later periods of time when he does
Page 1 of 4
not have such access. I would therefore conclude that there are “‘circumstances
consistent with petitioner’s petition and declaration under which he would be
entitled to . . . equitable tolling,’” and thus Torres is entitled to an evidentiary
hearing on his equitable tolling claim. Id. at 1071 (quoting Whalem/Hunt v. Early,
233 F.3d 1146, 1148 (9th Cir.2000) (en banc)). In analyzing his remaining gap
tolling claims, as the majority does, I assume equitable tolling through March 23,
2005.
In finding Torres’s petition untimely, the majority holds that four gaps
between Torres’s various state habeas petitions are not eligible for gap tolling. The
majority’s reasoning relies on gaps not addressed by the magistrate judge’s report
and recommendation, which the district judge adopted in full. While I agree that
the gap before the ninth petition should not be tolled, the others are close calls best
resolved by the district court.
First, the majority concludes that the 92 day gap between Torres’s second
and third petitions should not be tolled because it was “summarily denied” and
Torres did not provide an explanation for his delay. Mem. at 6. Nothing about the
fact that the petition was “summarily denied” should inform our determination of
whether Torres’s petition was untimely. The summary denial provides no
information about whether it was denied on the merits or as untimely. See Evans v.
Page 2 of 4
Chavis, 546 U.S. 189, 198 (2006). We recognized in Noble v. Adams that
California courts have “excused delays of several months where the petitioner
offered an adequate explanation for the delay.” 676 F.3d 1180, 1184 (9th Cir.
2012). In Noble, we remanded for the district court to consider whether a four and
a half month delay was reasonable. Id. Torres argues that his delays were caused
by his frequent transfers between prison facilities and inability to access the
necessary legal resources to file his petitions. I would remand to the district court
to decide the reasonableness of his delay, as we did in Noble.1
Second, the majority concludes that there is “[n]o basis for tolling the 62 day
gap between the sixth and seventh petitions” because “the seventh petition was
denied as duplicative and was commenced in a lower court, thereby starting a ‘new
round.’” Mem. at 6. As the majority correctly explains, a petition filed at the same
level as a prior petition does not start a “new round” when it is “limited to an
elaboration of the facts relating to the claims in the first petition.” Banjo v. Ayers,
614 F.3d 964, 968-69 (9th Cir. 2010). The fact that a petition was denied as
duplicative does not resolve the Banjo inquiry. Even if a petition elaborated on the
facts of the prior petition, a court might still consider it duplicative. Indeed, a court
1
For the same reasons, I would also remand for the district court to
determine whether the delay between the fourth and fifth petitions was reasonable.
See Mem. at 7 (suggesting that this gap also should not be tolled).
Page 3 of 4
may be more likely to deny a petition that qualifies under the Banjo test as
duplicative (because it does not raise new claims) than a petition that starts a new
round by raising a new claim. Resolving this question requires close examination
of the allegations in the petitions. I would remand to the district court to undertake
this analysis in the first instance.
Similarly, while the majority concludes without further comment that the
eighth petition “did not represent an effort to address the deficiencies of the
former,” Mem. at 6, I think the district court is best suited to analyze that issue.
The eighth petition is not identical to the seventh and arguably could have been an
effort, albeit not a successful one, to remedy the deficiencies of the prior petition.
Thus, by my calculation, if we construe all doubtful questions in Torres’s
favor, he has only 154 non-tolled days. The result in this case is particularly
troubling because even under the majority’s analysis, Torres is only four days shy
of the statute of limitations. I would remand to allow the district court to make
these fact-intensive inquiries before we deny Torres the ability to pursue his habeas
claim.
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