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Sossa v. Diaz

United States Court of Appeals, Ninth Circuit

September 10, 2013

Armando Jose Sossa, Petitioner-Appellant,
v.
Ralph M. Diaz, Warden, Respondent-Appellee.

Argued and Submitted March 4, 2013-Pasadena, California

Appeal from the United States District Court for the Central District of California D.C. No. 2:08-cv-01549-SVW-FMO Stephen V. Wilson, District Judge, Presiding

Jan B. Norman, Los Angeles, California, for Petitioner-Appellant.

Michael Katz, Deputy Attorney General, State of California, Los Angeles, California, for Respondent-Appellee.

Before: Richard A. Paez and Paul J. Watford, Circuit Judges, and Matthew F. Kennelly, District Judge.

SUMMARY [**]

Habeas Corpus

The panel reversed the district court's dismissal as untimely of California State prisoner Armando Jose Sossa's habeas corpus petition challenging the constitutionality of his second degree robbery conviction.

The panel held that Sossa is entitled to equitable tolling on the ground that he relied on the assigned magistrate judge's order extending the filing deadline beyond the statutory limitation. The panel also held that Sossa sufficiently alleged that he was precluded from filing his habeas petition within the time period provided in the magistrate judge's order to warrant further development of the record. The panel remanded to the district court for further proceedings to determine whether Sossa is eligible for equitable tolling on the ground that he was unable to utilize the prison's law library and other resources, and also whether he was entitled to the statutory tolling to which the magistrate judge assumed he was for purposes of his ruling.

OPINION [*]

PAEZ, Circuit Judge

State prisoner Armando Jose Sossa, proceeding pro se, filed a petition for a writ of habeas corpus in the district court challenging the constitutionality of his second degree robbery conviction. The district court dismissed the petition on the ground that it was untimely. We hold that Sossa is entitled to equitable tolling on the ground that he relied on the assigned magistrate judge's order extending the filing deadline beyond the statutory limitation. We further hold that Sossa has sufficiently alleged that he was precluded from filing his habeas petition within the time period provided in the magistrate judge's order to warrant further development of the record. Therefore, we reverse the district court's judgment and remand for further proceedings.

I. BACKGROUND

Sossa was convicted of second degree burglary in 2004. He was sentenced to thirty-five years to life, and the California Court of Appeal affirmed his conviction and sentence. On November 2, 2005, the California Supreme Court denied Sossa's petition for review. For purpose of the one-year limitations period of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1)(A), Sossa's conviction became final ninety days later on January 31, 2006. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

On October 22, 2006, Sossa filed a pro se petition for a writ of habeas corpus in the Los Angeles Superior Court seeking to vacate his conviction and sentence, which was denied in November 2006.[1] In April 2007, he next filed a pro se habeas petition in the California Court of Appeal, which was denied in May 2007. Several months later, in August 2007, Sossa filed a pro se habeas petition in the California Supreme Court, which was denied on February 13, 2008.

On February 24, 2008, Sossa filed a pro se petition for a writ of habeas corpus in the district court. To file his petition, Sossa used the form petition provided by the district court. In the section of the form petition where specific claims for relief must be enumerated, Sossa wrote "See Attached Petition" but failed to include any attachment. On March 12, 2008, the magistrate judge dismissed the petition, for failure to state a claim, with leave to amend within thirty days (by April 11, 2008).

On April 6, 2008, Sossa filed a motion for an extension of time to file his First Amended Petition ("FAP"), alleging generally that there were "circumstances out of the control of petitioner which will hamper his ability to make amendments" to the FAP. Three days later, on April 9, 2008, the magistrate judge granted Sossa's motion for an extension of time to amend his petition, setting the new filing deadline as May 9, 2008. On May 5, 2008, Sossa filed a second motion seeking to extend the deadline, stating that "[d]ue to[] circumstances out of the physical control of petitioner such as institutional lock-downs and conflicting library operational hours, petitioner will need" another 30 days to complete and file his FAP. On May 8, 2008, the magistrate judge granted Sossa's motion, setting the new deadline as "June 9, 2008, " and further stating: "No further extensions will be granted. Failure to file a [FAP] will result in dismissal of the case." (bold in original).

Before the June 9 deadline, on June 7, 2008, Sossa filed a motion seeking an additional five-day extension because prison conditions had prevented him from assembling his petition and the necessary facilities would not reopen until June 10-the day after the deadline set by the magistrate judge. The magistrate judge received and rejected Sossa's motion on June 11, 2008, ordering it not to be filed and citing his prior order that "no further extensions will be granted."

Also on June 11, 2008, Sossa filed his FAP. In response, Respondent ("the State") filed a motion to dismiss the petition on the ground that the FAP was untimely. Sossa opposed the motion. The magistrate judge issued a report and recommendation ("R&R") recommending that the FAP be dismissed with prejudice as untimely. He determined that the judgment in Sossa's criminal case became final on January 31, 2006 and AEDPA's one-year statute of limitations expired on January 31, 2007, absent any tolling. He then "assum[ed] without deciding that [Sossa] is entitled to statutory tolling for his complete round of state collateral review from October 22, 2006, to February 13, 2008." "When [Sossa] filed his habeas petition in the Los Angeles County Superior Court on October 22, 2006, 264 days of his one year statute of limitations period had run [since his conviction became final on ...


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