Remon Shields v. Tim Virga

FILED

NOT FOR PUBLICATION SEP 05 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

REMON SHIELDS, No. 09-16574

Petitioner - Appellant, D.C. No. 5:08-cv-00274-JF

v.

MEMORANDUM*

TIM VIRGA, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Northern District of California Jeremy D. Fogel, District Judge, Presiding

Argued and Submitted July 17, 2012 San Francisco, California

Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.

Remon Shields, a California state prisoner, appeals the dismissal of his

petition for federal habeas corpus relief under 28 U.S.C. § 2254 as untimely under

the one-year statute of limitations period for habeas petitions instituted by the

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at

U.S.C. § 2244(d). We affirm the district court’s decision.

We review a district court’s dismissal of habeas corpus for…

concurring:

I concur in the judgment affirming the district court’s judgment that Shields’s federal habeas petition is untimely.

When considering equitable tolling, a court cannot simply stop the statute of limitations clock when extraordinary circumstances begin and restart the clock when those extraordinary circumstances end. A “ ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ... that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, — U.S. —, —, 130 S.Ct. 2549, 2562 , 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005) (emphasis added)); see also Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (stating that extraordinary circumstances must have “made it impossible to file a petition on time”).

Shields alleges that he faced extraordinary circumstances when he: (1) was mentally incapacitated while in the Mental Outpatient Housing Unit (“MOHU”); and (2) was unable to do any legal work while in administrative segregation, in the MOHU, when the library was closed, and before he received the transcript. None of these alleged deprivations occurred…

MEMORANDUM *

Remon Shields, a California state prisoner, appeals the dismissal of his petition for federal habeas corpus relief under 28 U.S.C. § 2254 as untimely under the one-year statute of limitations period for habe-as petitions instituted by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2244 (d). We affirm the district court’s decision.

We review a district court’s dismissal of habeas corpus for untimeliness de novo. Noble v. Adams, 676 F.3d 1180, 1181 (9th Cir.2012). “If the facts underlying a claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003).

To the district court, Shields argued that he was eligible for equitable tolling based on several periods in which he was deprived access to his legal materials. We agree with the district court that Shields failed to make the requisite showing that these periods were extraordinary and proximately caused his untimely federal petition. See Bryant v. Ariz. Att’y Gen., 499 F.3d 1056, 1061 (9th Cir.2007); Stillman v. LaMarque, 319 F.3d 1199,…

dissenting.

I respectfully dissent. I would reverse the district court’s dismissal of Shields’s petition as untimely and remand for an evidentiary hearing to determine whether Shields is entitled to equitable tolling based on mental incompetence.

I. District court’s dismissal as untimely

In dismissing the petition, the district court failed to recognize that Shields’s petition could be timely based on the combined effect of both statutory and equitable tolling, as long as Shields were granted equitable tolling for at least twenty days. The district court erroneously required Shields to allege eleven months of equitable tolling when, in fact, Shields would be entitled to ten months of statutory tolling if he were granted a single day of equitable tolling prior to the filing of his state petition. Furthermore, Shields needed just nineteen days of equitable tolling to extend his one-year limitations period from the end of his state habeas procedures to the filing of his federal petition. See Ramirez v. Yates, 571 F.3d 993, 1000 (9th Cir.2009) (remanding for factual findings on equitable tolling where petition could only be timely if petitioner were granted both statutory and…