Charles Roger Jorss v. James H. Gomez, Director

266 F.3d 955 (9th Cir. 2001) CHARLES ROGER JORSS, PETITIONER-APPELLANT, v. JAMES H. GOMEZ, DIRECTOR, RESPONDENT-APPELLEE. No. 99-16986 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted * February 16, 2001 Filed September 4, 2001 Charles Roger Jorss, Pro Per, Ione, California, petitioner-appellant. Ross C. Moody, Deputy Attorney General, Office of the Attorney General of the State of California, San Francisco, California, for the respondent-appellee. Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding. D.C. No. CV-97-20728-RMW Before: Mary M. Schroeder, Chief Judge, J. Clifford Wallace and Richard C. Tallman, Circuit Judges. 1 Opinion by Judge Tallman; Dissent by Judge Wallace Richard Tallman, Circuit Judge 2 Charles Roger Jorss, a California state prisoner, appeals pro se the district court's dismissal of his habeas petition as timebarred under 28 U.S.C. §§ 2244 (d). Jorss argues that equitable tolling should apply because he diligently pursued his claims and his petitions were found to be time-barred due to extraordinary circumstances beyond his control. We agree and reverse. I. 3…

Opinion by Judge TALLMAN: Dissent by Judge WALLACE.

Charles Roger Jorss, a California state prisoner, appeals pro se the district court’s dismissal of his habeas petition as time-barred under 28 U.S.C. § 2244 (d). Jorss argues that equitable tolling should apply because he diligently pursued his claims and his petitions were found to be time-barred due to extraordinary circumstances beyond his control. We agree and reverse.

I

Jorss is serving 188 years for forcible sexual molestation under a sentence imposed by the Santa Cruz County Superior Court on May 5, 1994. The one-year statute of limitation period under the Antiter-rorism and Effective Death Penalty Act (AEDPA) began to run in Jorss’s case on April 24, 1996. See 28 U.S.C. § 2244 (d)(1); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999). However, due to statutory tolling, the time did not elapse while Jorss was properly pursuing his state post-conviction remedies. See 28 U.S.C. § 2244 (d)(2); Nino v. Galaza, 183 F.3d 1003, 1006-07 (9th Cir.1999).

On September 27, 1995, the California Supreme Court denied his petition for review on direct appeal. That petition raised three claims. On February 20, 1997, Jorss filed a…

dissenting:

Because the majority’s decision to toll equitably the limitations period of the An-titerrorism and Effective Death Penalty Act (AEDPA) contravenes circuit precedent, I respectfully dissent.

The majority, in effect, holds that Jorss’s filing of a second petition for habe-as corpus on August 11, 1997, equitably relates back to his first petition, dismissed by the district court on August 5, 1997, because the district court erred when it dismissed Jorss’s first petition without prejudice. This circuit has explicitly held, however, that “a second habeas petition does not relate back to a first habeas petition when the first habeas petition was dismissed for failure to exhaust state remedies” because in such a case there is “no pending petition to which the new petition could relate back or amend.” Green v. White, 223 F.3d 1001, 1003 (9th Cir.2000) (internal quotation marks omitted); see also Dils v. Small, 260 F.3d 984, 986-87 (9th Cir.2001); Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000) (“[A] second petition does not relate back to a first petition where the first petition was dismissed for failure to exhaust state remedies.”); Henry v. Lungren, 164 F.3d 1240,…