Robert Von Villas v. Kathleen Allison

MEMORANDUM **

Robert Von Villas appeals from the dismissal of his two habeas petitions as untimely. We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253 . Because the parties are familiar with the facts of this case, we do not recount them here. Exercising de novo review, we affirm.

Uncertified Issue

We lack jurisdiction to review Von Villas’s argument that the district court should have stayed proceedings on his 1997 petitions for writ of habeas corpus. The dismissal of Von Villas’s 1997 petitions was a voluntary dismissal without prejudice, after which he filed new petitions. See Fed.R.Civ.P. 41(a)(2). Von Villas has lost the right to challenge the district court’s disposition of the 1997 petitions because he did not object to or appeal these dismissals. The 1998 petitions that are the subject of this appeal constitute entirely new actions. City of S. Pasadena v. Mineta, 284 F.3d 1154 , 1157 (9th Cir. 2002); see Slack v. McDaniel, 529 U.S. 473, 487-88 , 120 S.Ct. 1595 , 146 L.Ed.2d 542 (2000).

Equitable Tolling

“In this circuit, equitable tolling of the filing deadline for a habeas petition is available only if extraordinary circumstances beyond a prisoner’s…

dissenting:

Equitable tolling is the product of “a tradition in which courts of equity have sought to relieve hardships which, from time to time, arise from a hard and fast adherence to more absolute legal rules, which if strictly applied, threaten the evils of archaic rigidity.” Holland v. Florida, 560 U.S. 631 , 130 S.Ct. 2549, 2563 , 177 L.Ed.2d 130 (2010). Courts invoking equitable doctrines must “exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.” Id. at 2563. The majority acknowledges “the harshness of the outcome in this case” and that there was little more Von Villas could have done to navigate successfully the morass of procedural rules suddenly thrust upon him, yet it denies relief. Surely this case falls within the province of equitable principles.

Extraordinary circumstances justifying equitable tolling may arise from “the confluence of numerous factors beyond the prisoner’s control.” Lott v. Mueller, 304 F.3d 918, 924 (9th Cir.2002). Von Villas alleges just such a confluence: denial of access to AEDPA until just before the…

FILED

NOT FOR PUBLICATION JUL 23 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT ANTHONY VON VILLAS, No. 11-56396 AKA Robert A. Von Villas, D.C. No. 2:98-cv-01073-DDP- Petitioner - Appellant, AJW

v.

MEMORANDUM*

KATHLEEN ALLISON, Warden, Warden (A) and ATTORNEY GENERAL FOR

THE STATE OF CALIFORNIA,

Respondents - Appellees.

ROBERT ANTHONY VON VILLAS, No. 11-56398 AKA Robert A. Von Villas, D.C. No. 2:98-cv-01072-DDP- Petitioner - Appellant, AJW

v.

KATHLEEN ALLISON, Warden, Warden (A),

Respondent - Appellee.

Appeal from the United States District Court

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. for the Central District of California Dean D. Pregerson, District Judge, Presiding

Argued and Submitted June 16, 2014 Seattle, Washington

Before: REINHARDT and CHRISTEN, Circuit Judges, and SETTLE, District Judge.**

Robert Von Villas appeals from the dismissal of his two habeas petitions as

untimely. We have jurisdiction…