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NOT FOR PUBLICATION JUL 23 2014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 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

** The Honorable Benjamin H. Settle, District Judge for the U.S. District Court for the Western District of Washington, sitting by designation.

2 S. Pasadena v. Mineta, 284 F.3d 1154, 1157 (9th Cir. 2002); see Slack v.

McDaniel, 529 U.S. 473, 487–88 (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 control make it

impossible to file a petition on time.” Lott v. Mueller, 304 F.3d 918, 922 (9th Cir.

2002) (internal quotation marks omitted). Accepting Von Villas’s factual

contentions as true, he encountered substantial hurdles to filing timely petitions.

Most significantly, he was apparently unaware of the Anti-terrorism and Effective

Death Penalty Act (AEDPA) filing deadline until the month of the deadline. But

Von Villas was nonetheless able to file two timely petitions in federal court before

the AEDPA deadline. He cannot show that any extraordinary circumstances

beyond his control were the cause of his late filing. We have suggested that the

ability to file even a “basic form habeas petition” before the deadline would defeat

a claim for equitable tolling. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1014

(9th Cir. 2009). Therefore, Von Villas is not entitled to equitable tolling.

We recognize the harshness of this outcome in this case, but we are not free

to depart from our well-established standard for equitable tolling. In our view,

Von Villas’s predicament resulted most directly from his legal missteps, starting

3 with his decision not to preserve for appellate review the issue of the district

court’s refusal to stay proceedings on the 1997 petitions. Of course, it would have

been very difficult for Von Villas, representing himself pro se, to avoid these

missteps, particularly given the novelty of the AEDPA scheme at the time. But we

have held that lack of legal sophistication does not constitute an extraordinary

circumstance beyond a petitioner’s control. Rasberry v. Garcia, 448 F.3d 1150,

1154 (9th Cir. 2006). We cannot fault Von Villas for filing untimely petitions, but

we conclude that he has not met the high burden required for equitable tolling

based on extraordinary circumstances.

Nor is Von Villas entitled to equitable tolling because he was affirmatively

misled by the district court. As Von Villas notes, this issue is governed by our

decision in Ford v. Pliler, 590 F.3d 782 (9th Cir. 2009). We understand that Von

Villas has raised the issue here to preserve it for further review.

Statutory Tolling

Von Villas is not entitled to statutory tolling because he was not “prevented

from filing” timely petitions by a state-created impediment. See 28 U.S.C. §

2244(d)(1)(B). This causal standard is functionally equivalent to the

“impossibility” standard for equitable tolling. See Bryant v. Ariz. Att’y Gen., 499

4 F.3d 1056, 1060–61 (9th Cir. 2007). Because Von Villas filed timely petitions, he

cannot meet the standard for statutory tolling.

AFFIRMED.

5

FILED

Judge REINHARDT, dissenting: 11-56396+ Villas v Allison JUL 23 2014

MOLLY C. DWYER, CLERK

Equitable tolling is the product of “a tradition in which courts of equityCOURT OF APPEALS U.S. 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, 130 S. Ct. 2549, 2563 (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 new filing deadline announced by

that statute; lack of meaningful access to his legal materials due to prison policies;

and the district court’s mistaken denial of Von Villas’s motion to stay and abey his

1997 mixed petitions–an error caused by the district court’s own understandable

confusion regarding the newly enacted statute. The majority rules that Von Villas’s ability to timely file two federal

placeholder petitions in 1997 proves that these extraordinary circumstances did not

cause the untimeliness of his 1998 federal petitions, but this penalizes Von Villas

for his extreme diligence under extraordinary circumstances. Moreover, the

majority does not take account of the fact that these extraordinary circumstances

also prevented Von Villas from filing a state petition, which would have in turn

tolled the AEDPA limitations period, rendering his 1998 federal petitions timely.

See 28 U.S.C. § 2244(d)(2). Von Villas’s failure to appeal the district court’s

denial of a stay was indeed a miscalculation, but this does not change the fact that

extraordinary circumstances caused the 1998 petitions currently before this Court

to be delayed despite Von Villas’s diligent efforts.

“AEDPA seeks to eliminate delays in the federal habeas review process,”

Holland, 130 S. Ct at 2562, yet Von Villas has been forced to litigate this statute of

limitations issue for well over a decade. Now, no federal court will reach the

merits of his claims. There is little equity in that.