Ashley Lowe v. Deborah K. Johnson

concurring:

I concur with the panel majority’s decision to remand to the district court with respect to Lowe’s “lack of AEDPA materials” argument in support of equitable tolling. Although it appears unlikely that the law library where Lowe is incarcerated in fact has no materials discussing AEDPA’s requirements, the district court did not address this claim and remand is proper under Brown v. Roe, 279 F.3d 742 (9th Cir.2002).

However, remand is not necessary with respect to Lowe’s arguments that her claims should be equitably tolled due to her “lack of education” and “lack of access to the law library” claims. Ignorance of the law or lack of education alone are not sufficiently extraordinary circumstances to warrant equitable tolling. See, e.g., Ford v. Pliler, 590 F.3d 782, 789 (9th Cir.2009); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.2006). Further, the routine restrictions on Lowe’s access to the prison law library do not constitute extraordinary circumstances making timely filing impossible under Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir.2005). Because the “lack of education” and “lack of library access” tolling arguments fail on their merits, remand on those…

MEMORANDUM *

Petitioner Ashley Lowe, who is of limited intellectual ability, was convicted of a second-degree murder in which she participated at the age of fifteen. In the course of an attempted street robbery, her armed companion shot and killed a man. Lowe accepted a plea and was sentenced to sixteen years to life.

In a pro se habeas petition filed in the district court, she raised a number of challenges to her conviction. Among other things, she argued that she was not informed of her rights under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and that defense counsel was ineffective in failing to explain to her the terms of the plea. No federal court has heard these claims on the merits, however, because her petition was filed after the statute of limitations imposed by 28 U.S.C. § 2244 (d) had expired.

When the magistrate judge issued his Report and Recommendation (R & R) dismissing Lowe’s petition as untimely, he noted that she was entitled to an opportunity to present arguments as to timeliness under Day v. McDonough, 547 U.S. 198, 210 , 126 S.Ct. 1675 , 164 L.Ed.2d 376 (2006), and that she could do so by filing objections, which she was…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT AUG 29 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ASHLEY LOWE, No. 10-56201

Petitioner - Appellant, D.C. No. 2:10-cv-02795-JVS-

MLG

v.

DEBORAH K. JOHNSON, Warden, MEMORANDUM*

Respondent - Appellee.

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

Argued and Submitted August 6, 2014 Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

Petitioner Ashley Lowe, who is of limited intellectual ability, was convicted

of a second-degree murder in which she participated at the age of fifteen. In the

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 course of an attempted street robbery, her armed companion shot and killed a man.

Lowe accepted a plea and was sentenced to sixteen years to life.

In a pro se habeas petition filed in the district court, she raised a number of

challenges to her…