Carlos Mendoza v. Tom L. Carey, Warden

449 F.3d 1065 Carlos MENDOZA, Petitioner-Appellant, v. Tom L. CAREY, Warden, Respondent-Appellee. No. 04-56733. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 17, 2005. Filed June 7, 2006. Stephen M. Lathrop, Rolling Hills Estates, CA, for the petitioner-appellant. Keith H. Borjon, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee. Appeal from the United States District Court for the Central District of California; Cormac J. Carney, District Judge, Presiding. D.C. No. CV 04-02632 CJC. Before: KLEINFELD, TASHIMA, and FISHER, Circuit Judges. TASHIMA, Circuit Judge: 1 Carlos Mendoza, a California state prisoner, appeals from the judgment of the district court, which dismissed as untimely his petition for writ of habeas corpus. Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas petitions must be filed within one year from the date when the petitioner's judgment of conviction became final. 28 U.S.C. § 2244 (d). Mendoza, who is a Spanish speaker, argued that he should qualify for equitable tolling of the one-year limitations period because the prison law library failed to provide Spanish-language books…

Carlos Mendoza, a California state prisoner, appeals from the judgment of the district court, which dismissed as untimely his petition for writ of habeas corpus. Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), habeas petitions must be filed within one year from the date when the petitioner’s judgment of conviction became final. 28 U.S.C. § 2244 (d). Mendoza, who is a Spanish speaker, argued that he should qualify for equitable tolling of the one-year limitations period because the prison law library failed to provide Spanish-language books or Spanish-speaking clerks or librarians to assist Spanish-speaking inmates. 1 The magistrate judge concluded that the absence of Spanish-language materials from Mendoza’s prison library did not *1067 amount to an extraordinary circumstance for purposes of the equitable tolling analysis. The district court adopted the magistrate judge’s report and recommendation; accordingly, it dismissed Mendoza’s petition as untimely. On appeal, Mendoza contends that he is entitled to equitable tolling because the lack of Spanish-language assistance was an extraordinary circumstance beyond his control that made it impossible to file…

dissenting:

I respectfully dissent.

Mendoza accepted a plea bargain and was sentenced in state court to fourteen years for assault with a firearm on a person. He contends in his federal petition for a writ of habeas corpus that his sentence was illegal. This case involves, not the merits, but the lateness of his petition. Here are the relevant dates of filing and denial of all filings seeking post conviction relief:

Unless equitably tolled, the AEDPA one- *1072 year statute of limitations 1 barred Mendoza’s federal habeas petition in August 2002, long before he filed anything in any court challenging his conviction or sentence. He was silent during the year he was given to challenge his conviction and sentence. The majority concludes that the one-year statute of limitations may not have run because Mendoza has made a sufficient showing to get an evidentiary hearing on whether language difficulties prevented him from filing a timely petition. The evidence in the record undermines that conclusion.

Mendoza was born in the U.S.A. He says that his parents were Spanish speaking. Though he complains of the lack of Spanish legal materials in prison libraries, he does not claim that he…