Carl Sullivan v. Nevins

FILED
NOT FOR PUBLICATION JUL 21 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARL OTIS SULLIVAN, No. 09-16489

Petitioner - Appellant, D.C. No. 2:05-cv-00448-RCJ-RJJ

v.
MEMORANDUM*
NEVINS, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,

Respondents - Appellees.

Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding

Argued and Submitted June 14, 2010
San Francisco, California

Before: RYMER and FISHER, Circuit Judges, and PALLMEYER, District
Judge.**

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Rebecca R. Pallmeyer, United States District Judge for the
Northern District of Illinois, sitting by designation.
 Petitioner Carl Otis Sullivan, a Nevada state prisoner serving consecutive

sentences for robbery and related crimes, appeals the district court’s judgment

dismissing his petition for habeas relief as untimely. We vacate and remand.

Sullivan’s federal habeas petition was timely filed because the time during

which his state habeas petition was pending is equitably tolled under Harris v.

Carter, 515 F.3d 1051, 1054-56 (9th Cir. 2008), and Townsend v. Knowles, 562

F.3d 1200, 1205-06 (9th Cir. 2009). First, although the district court has been

equivocal on this issue, we are satisfied by its initial finding that Sullivan was

diligent in pursuing his rights. The Nevada trial court committed several

procedural missteps in Sullivan’s case, prolonging the pendency of his state

proceedings. In an effort to mitigate these difficulties, the parties stipulated that

Sullivan’s state petition should be treated as timely and the state trial court agreed.

Though the Nevada Supreme Court ultimately held the stipulation to be invalid and

ruled that his state petition was untimely, Sullivan was not guilty of any oversight

or negligence in relying on the reasonable representations of both the state trial

court and the state’s stipulation. Throughout his state proceedings, Sullivan

continued to actively pursue his case and ultimately filed his federal petition within

one year of the termination of his state post-conviction review. Second, as in

Harris, Sullivan asserts that he relied on controlling Ninth Circuit precedent in

2
Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001), in waiting to file his

federal habeas petition. We do not read Harris and Townsend as requiring more.

See Harris, 515 F.3d at 1054, 1055; Townsend, 562 F.3d at 1206. Sullivan has

therefore satisfied the requirements for equitable tolling.

VACATED and REMANDED.

3
 FILED
Sullivan v. Nevins JUL 21 2010
No. 09-16489 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

RYMER, Circuit Judge, concurring.

I join in the judgment.