Anderson Thurston v. James Yates

MEMORANDUM

Appellant Anderson Thurston (Thurston) challenges the district court’s dismissal of his habeas petition as untimely. Thurston contends that he was entitled to additional equitable tolling.

1. The state’s argument that Thurston’s federal habeas petition is procedurally barred was not raised in the district court. Rather than determining whether the state’s reason for failing to raise procedural default meets the extraordinary circumstances standard, we review Thurston’s claims on the merits. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002).

2. Thurston agrees with the district court’s grant of equitable tolling for the period between August 9, 2006 and June 30, 2008. However, Thurston argues that the district court erred in not granting equitable tolling between June 30, 2008 and September 23, 2008.

A habeas petitioner is eligible for equitable tolling when he diligently pursues his federal rights, and is nevertheless incapable of filing a timely federal habeas petition because of extraordinary circumstances. See Lakey v. Hickman, 633 F.3d 782, 784 (9th Cir.2011), as amended. Additionally, there must be a causal link between the extraordinary…