NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 8 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSE BOBADILLA, No. 14-56461

Petitioner-Appellant, D.C. No. 2:13-cv-08456-CJC-JEM v.

C. GIPSON, C.S.P., MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted July 7, 2016 Pasadena, California

Before: VANASKIE,** MURGUIA, and WATFORD, Circuit Judges.

Jesse Bobadilla appeals from the district court’s order dismissing his federal

habeas petition as untimely. This Court granted Bobadilla’s request for a

certificate of appealability on the following question: “whether the district court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Thomas I. Vanaskie, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. properly determined that the petition was barred by the statute of limitations,

including whether appellant is entitled to equitable tolling.” ER 1. We have

jurisdiction under 28 U.S.C. § 1291 and § 2253, and we affirm the judgment of the

district court.

Bobadilla was convicted by a jury of murder and other crimes, and

sentenced to 50 years to life in prison on April 4, 2008. The California Supreme

Court denied Bobadilla’s counseled petition for review on November 2, 2011.

Counsel, however, did not inform Bobadilla of the California Supreme Court

decision until more than a year later, on November 17, 2012, when counsel

returned Bobadilla’s records to him. In his letter of November 17, 2012, counsel

advised Bobadilla that the deadline to file a federal habeas petition was January 31,

2013.

It is undisputed that the statute of limitations for Bobadilla to petition for

habeas corpus relief pursuant to 28 U.S.C. § 2254 expired on January 31, 2013,

one year after the deadline for petitioning the Supreme Court of the United States

for a writ of certiorari had expired. See Bowen v. Roe, 188 F.3d 1157, 1158-59

(9th Cir. 1999). It is also undisputed that Bobadilla did not file a habeas corpus

petition in federal court until November 7, 2013. Bobadilla claims equitable tolling

of the running of the limitations period by reason of his counsel’s failure to inform

him of the denial of his petition for review by the California Supreme Court until

2 November 17, 2012, some 54 weeks after the California Supreme Court issued its

ruling.

To be entitled to equitable tolling of the one-year limitations period imposed

by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

habeas petitioner must show “‘(1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstances stood in his way’ and prevented

timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)). While we find that the inexcusable delay

by counsel to inform Bobadilla of the California Supreme Court ruling constitutes

an extraordinary circumstance, we conclude that Bobadilla did not act with the

requisite diligence to warrant equitable tolling.

We note that the law of this Court concerning the diligence required of a

federal habeas petitioner is somewhat in tension. As this Court observed in Luna

v. Kernan, 784 F.3d 640 (9th Cir. 2015), we adopted a “stop clock” approach for

equitable tolling claims in Gibbs v. Legrand, 767 F.3d 879 (9th Cir. 2014). Under

a pure stop-clock approach, “[t]here is no need to show diligence after the

extraordinary circumstances have ended.” Luna, 784 F.3d at 651. However, in

Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003), we required a petitioner to show

diligence through the time of filing, even after the extraordinary circumstance

dissolved. And more recently, we observed that “[o]rdinarily, a petitioner must act

3 with reasonable diligence both before and after receiving delayed notice that the

state denied his habeas petition.” Fue v. Biter, ___ F.3d ___, 2016 WL 6803045,

at *4 (9th Cir., Nov. 17, 2016) (en banc) (emphasis added; citation omitted).

Thus, “under current circuit law, we must apply both the diligence-through-filing

requirement imposed by Spitsyn and the stop-clock approach adopted in Gibbs.”

Luna, 784 F.3d at 651–52.

Here, we conclude that after learning of his counsel’s omission, Bobadilla

did not act with reasonable diligence through filing. Seventy-five days before

AEDPA’s limitations period was set to expire, Bobadilla’s counsel informed

Bobadilla of his omission and alerted Bobadilla that the deadline to file a federal

habeas petition was January 31, 2013. Despite receiving this information,

Bobadilla took no action prior to November 7, 2013.1 When Bobadilla did

eventually file his federal habeas petition, the petition amounted to word-for-word

recitations of the “Argument” headings from the table of contents of his petition

for review to the Supreme Court of California, which was in Bobadilla’s

possession since September 26, 2011. This delay of more than eleven months after

1 On February 15, 2013, after the statute of limitations to seek federal habeas relief had expired, Bobadilla sent by mail to the Los Angeles Superior Court, a state habeas petition. Bobadilla filed another petition in state court on October 29, 2013, which was denied on November 21, 2013. These state court petitions, however, do not indicate that Bobadilla was pursuing his federal rights diligently. See Holland, 560 U.S. at 649. 4 receiving his case file and notice of his federal habeas deadline demonstrates that

Bobadilla did not act with the requisite diligence through the time of filing his

federal habeas petition. See Doe v. Busby, 661 F.3d 1001, 1012–13 (9th Cir. 2011)

(“The purpose of requiring a habeas petitioner to show diligence is to verify that it

was the extraordinary circumstance, as opposed to some act of the petitioner’s own

doing, which caused the failure to timely file.”). Accordingly, we conclude that

Bobadilla is not entitled to equitable tolling.

AFFIRMED.

5

FILED

Bobadilla v. Gipson, No. 14-56461

MAR 8 2017

MURGUIA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree with the majority that there is tension in our equitable tolling

jurisprudence. However, I respectfully dissent from the majority’s holding because

Bobadilla’s petition is timely under the more practical “stop-clock” rule that this

Court, sitting en banc, adopted in the immigration context, Socop–Gonzalez v. INS,

272 F.3d 1176 (9th Cir. 2001) (en banc), and has applied in the habeas context,

Gibbs v. Legrand, 767 F.3d 879 (9th Cir. 2014).

Under the stop-clock rule, once the impediment preventing the petitioner

from filing his petition is removed, the Court must only inquire “whether [the

petitioner] filed within the limitations period after tolling is taken into account.”

Socop–Gonzalez, 272 F.3d at 1195–96 (“[T]he event that ‘tolls’ the statute simply

stops the clock until the occurrence of a later event that permits the statute to

resume running.”). The stop-clock rule does not require a petitioner to show

diligence through the time of filing. Id. As this Court has previously noted,

requiring a petitioner to demonstrate diligence through the time of filing “arguably

usurps congressional authority . . . by substituting [the court’s] own subjective

view of how much time a plaintiff reasonably needed to file suit.” Id.; see also Lott

v. Mueller, 304 F.3d 918, 926–27 (9th Cir. 2002) (McKeown, J., concurring) (“A year should be 365 days not just for those fortunate enough to be free of any

obstacles to filing, but for all petitioners—particularly for those who find their time

to prepare a petition shrinking because of impediments beyond their control.”).

The majority is correct in pointing out that a diligence-through-filing

requirement also seems to find some support in our case law. See Spitsyn v. Moore,

345 F.3d 796, 802 (9th Cir. 2003).1 As the majority notes, in light of this tension,

Luna v. Kernan advises this Court to “apply both the diligence-through-filing

requirement imposed by Spitsyn and the stop-clock approach adopted in Gibbs.”

784 F.3d 640, 651–52 (9th Cir. 2015). However, I take issue with Luna’s attempt

to reconcile a diligence-through-filing requirement and the stop-clock approach.

Under the stop-clock rule, diligence during the post-impediment period does not

need to be shown. If, as Luna asserts, another line of cases holds that diligence

must be shown, then the two lines of cases are irreconcilable. In attempting to

1 Spitsyn only addresses the diligence prong of equitable tolling in dicta. See Spitsyn, 345 F.3d at 802. The only issue before the Court was whether the misconduct of Spitsyn’s attorney was sufficiently egregious to satisfy the “extraordinary circumstance” prong of equitable tolling. Id. at 798. The Court concluded that the attorney’s misconduct constituted an extraordinary circumstance and remanded the case to the district court to determine “whether Spitsyn exercised reasonable diligence in pursuing the matter, under the circumstances he faced.” Id. at 802 (stating that a petitioner is not entitled to equitable tolling if “the person seeking equitable tolling has not exercised reasonable diligence in attempting to file, after the extraordinary circumstances began” (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (emphasis added))). While the Court simply noted in its concluding paragraph that “the record [did] not indicate why Spitsyn did not file his petition until September, when [his counsel] returned his files in April,” the Court did not indicate that Spitsyn’s lack of diligence during this time period would necessarily preclude his entitlement to equitable tolling. “apply both” approaches, which directly contradict each other, the diligence-

through-filing rule necessarily subsumes the stop-clock rule. Because the stop-

clock rule is a definitive test and is consistent with “the policy objectives of the

statute of limitations,” I would apply this rule to assess the timeliness of

Bobadilla’s petition. See Socop–Gonzalez, 272 F.3d at 1195.

Bobadilla has demonstrated (1) “that some extraordinary circumstance stood

in his way and prevented timely filing,” and (2) “that he has been pursuing his

rights diligently.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation

marks omitted). Bobadilla’s lawyer abandoned him by waiting until November 17,

2012—53 weeks after the California Supreme Court’s denial of his petition for

review—to notify Bobadilla of the denial and to send him the record of his case.

We have previously explained the importance of providing habeas petitioners with

access to their files. See, e.g., Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009)

(“[I]t is unrealistic to expect a habeas petitioner to prepare and file a meaningful

petition on his own within the limitations period without access to his legal file.”

(internal quotation marks omitted)); Spitsyn, 345 F.3d at 801 (“But without the file,

which [the lawyer] still possessed, it seems unrealistic to expect [the prisoner] to

prepare and file a meaningful petition on his own within the limitations period.”).

Bobadilla’s lawyer’s conduct in this case constituted an extraordinary circumstance that prevented Bobadilla from filing his petition on time.

Bobadilla also did not fail to exercise reasonable diligence under the

circumstances in this case. Although Bobadilla did not independently inquire about

the status of his petition with the California Supreme Court before November 17,

2012, he was represented by counsel and a reasonable person would rely on

counsel to inform him of the state court’s decision. Further, a reasonable person

would not anticipate that the California Supreme Court would deny the petition for

review as quickly as it did. See Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir.

2001) (stating without reservation that 21 months is “not an unusually long time

[for a prisoner] to wait for a court’s decision”). Accordingly, Bobadilla is entitled

to equitable tolling from the date the California Supreme Court’s denial of his

petition for review became final through November 17, 2012. Because Bobadilla

filed his habeas petition on November 7, 2013, within the one-year limitations

period, his petition is timely under the stop-clock rule.