FILED

NOT FOR PUBLICATION

MAY 27 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRYCE EVERETT PETERSON, No. 19-35923

Petitioner-Appellant, D.C. No. 9:17-cv-00019-DLC-KLD v.

ATTORNEY GENERAL FOR THE MEMORANDUM*

STATE OF MONTANA; JIM

SALMONSEN,

Respondents-Appellees.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Argued and Submitted October 8, 2020 Portland, Oregon

Before: PAEZ and RAWLINSON, Circuit Judges, and ANTOON,** District Judge.

Petitioner Bryce Everett Peterson (Peterson) appeals the district court’s

denial of his federal habeas petition as time-barred pursuant to the one-year statute

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. of limitations imposed by the Antiterrorism and Effective Death Penalty Act

(AEDPA). Peterson contends that the district court erred in holding that his federal

habeas petition was untimely, arguing that the one-year limitations period was reset

when the state trial court issued an amended judgment that no longer required

Peterson to pay restitution.

But even if the amended judgment reset the limitations period, Peterson

concedes that his federal habeas petition was untimely absent equitable tolling of

the limitations period.1 And Peterson did not establish that the state trial court

affirmatively misled him or that any other extraordinary circumstances prevented

him from timely filing his federal habeas petition. See Milam v. Harrington, 953

F.3d 1128, 1132 (9th Cir. 2020) (stating that “[a] habeas petitioner is entitled to

equitable tolling only if he shows (1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way and

1 Because the timeliness of Peterson’s federal habeas petition hinges on equitable tolling and the state has fully briefed the issue, we grant a certificate of appealability (COA) on whether Peterson should be afforded equitable tolling. See Carter v. Davis, 946 F.3d 489, 522 (9th Cir. 2019) (per curiam) (explaining that “when a district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA can issue only if the prisoner shows that (1) jurists of reason would find it debatable whether the district court was correct in its procedural ruling, and (2) jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right”) (citation and internal quotation marks omitted). 2 prevented timely filing”) (citation and internal quotation marks omitted).

We grant Peterson’s request to expand the COA to consider the timeliness of

his judicial bias claim. The district court erred by construing Peterson’s judicial

bias claim as an actual innocence claim, and then determining that the claim was

untimely. Pursuant to 28 U.S.C. § 2244(d)(1)(D), the district court should have

measured the timeliness of Peterson’s judicial bias claim from “the date on which

the factual predicate of the claim or claims presented could have been discovered

through the exercise of due diligence.” Peterson sufficiently established that he

discovered the vital facts underlying his judicial bias claim in October, 2016, when

he obtained information concerning the judge’s alleged involvement with the

victim of Peterson’s offenses. Thus, Peterson’s judicial bias claim set forth in his

habeas petition filed on February 17, 2017, was timely. See Ford v. Gonzalez, 683

F.3d 1230, 1235 (9th Cir. 2012) (explaining that a habeas petitioner’s claim is

timely based on the discovery of “vital facts” that “could not have been known by

the date the appellate process ended”) (citation and internal quotation marks

omitted). Accordingly, we remand the claim to the district court for further

proceedings.

We deny expansion of the COA to encompass Peterson’s claim that the

district court abused its discretion in denying his request for an extension to file

3 objections to the magistrate judge’s report and recommendation because it is not

debatable that the district court properly exercised its discretion. See Carter, 946

F.3d at 522. The district court denied Peterson’s request for a 45-day extension

because it had already granted two prior extensions for Peterson to file his

objections. Moreover, the district court afforded Peterson two additional weeks to

file his objections in lieu of the requested forty-five day extension.

AFFIRMED in part, REVERSED in part, and REMANDED.

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