Essic Fail v. Suzanne Hubbard, Warden

Opinion by Chief Judge SCHROEDER; Concurrence by Judge WAJ1ACE

Essie Fail appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition as time-barred. Although we deferred submission pending the Supreme Court’s decision in Duncan v. Walker, 533 U.S. 167 , 121 S.Ct. 2120 , 150 L.Ed.2d 251 (2001), the Supreme Court did not deal directly with the issue this case now presents. That issue is whether the one-year statute of limitation established by the An-titerrorism and Effective Death Penalty Act (AEDPA), see 28 U.S.C. § 2244 (d)(1), may be equitably tolled during the period between the date of the filing of an entirely unexhausted petition and the date of its dismissal by the district court without prejudice after the statute of limitation has run.

The Supreme Court in Duncan resolved a split among the circuits about whether AEDPA itself statutorily tolls the statute of limitation during the pendency of federal as well as state proceedings. See Duncan, 121 S.Ct. at 2124 . The statutory language the Court interpreted, 28 U.S.C. § 2244 (d)(2), reads:

The Court held that § 2244(d)(2) provides only for tolling during the pendency of state post-conviction proceedings, not…

concurring:

I concur in the result reached by the majority but write separately because there is no reason to reach out to decide whether AEDPA’s one year statute of limitations may be equitably tolled while a timely filed but unexhausted federal habe-as petition waits for a ruling from the district court. In this case, it would not be so tolled anyway and there is thus no reason to decide if equitable tolling is available.

272 F.3d 1133 (9th Cir. 2001) ESSIC FAIL, PETITIONER-APPELLANT, v. SUZANNE HUBBARD, WARDEN, RESPONDENT-APPELLEE. No. 99-15548 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submission Deferred February 16, 2001 Resubmitted for Decision July 10, 2001 Filed December 3, 2001 Matthew C. Bradford, Downey, Brand, Seymour & Rohwer, LLP, Sacramento, California, for the petitioner-appellant. Gregory A. Ott, Office of the California Attorney General, San Francisco, California, for the respondent-appellee. Appeal from the United States District Court for the Northern District of California; Maxine M. Chesney, District Judge, Presiding. D.C. No. CV-98-04463-MMC Before: Schroeder, Chief Judge, Wallace, and Tallman, Circuit Judges. Opinion by Chief Judge Schroeder; Concurrence by Judge Wallace Schroeder, Chief Judge: 1 Essic Fail appeals the district court's dismissal of his 28 U.S.C. &#167 2254 petition as time-barred. Although we deferred submission pending the Supreme Court's decision in Duncan v. Walker, 121 S. Ct. 2120 (2001), the Supreme Court did not deal directly with the issue this case now presents. That issue is whether the one-year statute of limitation established by…