Robert Lee Lott v. Glenn A. Mueller, Warden

304 F.3d 918 Robert Lee LOTT, Petitioner-Appellant, v. Glenn A. MUELLER, Warden, Respondent-Appellee. No. 00-55805. United States Court of Appeals, Ninth Circuit. Argued and Submitted January 15, 2002. Filed September 19, 2002. Darlene M. Ricker, Ricker & Mercado, Beverly Hills, CA, for the petitioner-appellant. Renee Rich, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee. Appeal from the United States District Court for the Central District of California; J. Spencer Letts, District Judge, Presiding. D.C. No. CV-97-08555-JSL-EE. Before SCHROEDER, Chief Judge, CUDAHY, * and McKEOWN, Circuit Judges. Opinion by Judge CUDAHY; Concurrence by Judge McKEOWN. CUDAHY, Circuit Judge. 1 On July 23, 1993, Robert Lott was sentenced by a California state court to a nineteen-year prison term for narcotics trafficking. During the last several years, Lott has been pursuing his post-conviction remedies in both state and federal court. In the case now before us, Lott appeals the decision of the district court that his federal habeas petition was untimely under 28 U.S.C. § 2244 (d)(1). Because our case law as applied to the particular facts of this case entitles Lott to…

Opinion by Judge CUDAHY; Concurrence by Judge McKEOWN.

On July 23, 1993, Robert Lott was sentenced by a California state court to a nineteen-year prison term for narcotics trafficking. During the last several years, Lott has been pursuing his post-conviction remedies in both state and federal court. In the case now before us, Lott appeals the decision of the district court that his federal habeas petition was untimely under 28 U.S.C. § 2244 (d)(1). Because our case law as applied to the particular facts of this case entitles Lott to equitable tolling, we vacate the decision of the district court and remand for further proceedings.

I

The sole issue before us is whether federal review of the áppellant’s petition for a writ of habeas corpus is barred by the one-year period of limitation contained in 28 U.S.C. § 2244 (d)(1). Lott’s federal habeas petition was originally filed on November 20, 1997. After extensive proceedings related to exhaustion of state remedies, the district court eventually referred Lott’s habeas petition to a magistrate judge. On November 17, 1999, the magistrate judge filed a report and recommendation concluding that Lott’s petition was untimely by at least…

Concurring in judgment:

I concur in the panel’s judgment: Should the government fail to rebut Lott’s claim on remand that he was denied access to his legal papers for eighty-two days, an obstacle to timely filing that certainly would have been beyond his control, Lott is entitled to equitable tolling. I would reach this conclusion, however, by the more direct and practical approach recently adopted by our court en banc in Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir.2001) (en banc).

When circumstances beyond the petitioner’s control delay timely filing of the petition, then we need only ask “whether [the petitioner] filed within the limitations period after tolling is taken into account.” Id. at 1196 . In other words, we simply stop the clock. We explicitly do not make a further inquiry concerning whether the. petitioner “could reasonably have been expected to file his motion ... in the [time] remaining in the limitations period.” Id. at 1195 . We rejected this additional step in large part because it “promotes inconsistency of application and uncertainty of calculation, thus undermining two of the purposes served by statutes of limitations.” Id.; see also Burnett v. N.Y. Cent.…