Joel Alcox v. James Hartley

MEMORANDUM *

Joel Alcox appeals the district court’s dismissal of his habeas petition as untimely under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244 (d)(1). We have jurisdiction pursuant to § 2253(a). Because Alcox was never afforded an evidentiary hearing as to whether he exercised diligence, and because the district court mistakenly evaluated the wrong time period and erroneously found Alcox offered no reasons for the delay in filing his first petition, we reverse and remand for an evidentiary hearing as to whether Alcox exercised due diligence in pursuing the factual predicate for his habeas claim. Id. § 2244(d)(1)(D).

The state courts never addressed whether Alcox exercised due diligence and never held an evidentiary hearing on that question. The district court, also without holding a hearing, improperly concluded that Alcox “took no meaningful action regarding his claim for more than ten years.” The district court should have held an evidentiary hearing because where, as here, the facts are in dispute, “a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant…

concurring in part and dissenting in part:

While I concur that Alcox’s equitable tolling argument is foreclosed, I disagree that Alcox is entitled to an evidentiary hearing, because he has not alleged “facts which, if proved, would entitle him to” statutory tolling. Townsend v. Sain, 372 U.S. 293, 312 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1 , 112 S.Ct. 1715 , 118 L.Ed.2d 318 (1992); see Roy v. Lamperi, 465 F.3d 964, 974 (9th Cir.2006). First, Alcox has not adequately alleged the exercise of due diligence: an inmate’s status as “imprisoned[,] destitute,” and without familial support, Maj. Op. at 175-76, cannot by itself permit that inmate to sit idle for well over a decade before taking any action on his federal claims, see 28 U.S.C. § 2244 (d)(1)(D), particularly where, as here, Alcox was able to conduct diligent research to find his biological family. Moreover, Alcox knew at the time of trial the factual predicates for his claim that his counsel failed to investigate his alibi and jailhouse statements. See Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir.2001).

Second, Alcox has not adequately alleged a factual predicate for…

FILED

NOT FOR PUBLICATION DEC 27 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

JOEL ALCOÈ, No. 09-55825

Petitioner - Appellant, D.C. No. 2:08-cv-01587-JVS-RC

v.

MEMORANDUM *

JAMES HARTLEY, Warden, Avenal State Prison,

Respondent - Appellee,

and

PEOPLE OF THE STATE OF

CALIFORNIA, Real Party in Interest,

Respondent.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted December 10, 2010 Pasadena, California

Before: TROTT, WARDLAW, and IKUTA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Joel Alcox appeals the district court's dismissal of his habeas petition as

untimely under the Antiterrorism and Effective Death Penalty Act of 1996

('AEDPA'). 28 U.S.C. y 2244(d)(1). We have jurisdiction pursuant to y 2253(a).

Because Alcox was never afforded an evidentiary hearing as to whether he

exercised diligence, and because…