USA v. Morris Buckle

Filing

FILED OPINION (WILLIAM A. FLETCHER, RAYMOND C. FISHER and DAVID C. BURY) VACATED; REMANDED. Judge: WAF Authoring, FILED AND ENTERED JUDGMENT. [7770261]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MORRIS DUANE BUCKLES,
Defendant-Appellant.





No. 08-36031
D.C. Nos.
4:08-cv-00075-SEH
4:03-cr-00090SEH-1
OPINION

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
November 2, 2010—Portland, Oregon
Filed June 2, 2011
Before: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and David C. Bury, District Judge.*
Opinion by Judge William A. Fletcher

*The Honorable David C. Bury, United States District Judge for the
District of Arizona, sitting by designation.

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COUNSEL
Lori Anne Harper Suek, OFFICE OF THE UNITED STATES
ATTORNEY, Billings, Montana, for the appellee.
David F. Ness, FEDERAL DEFENDERS OF MONTANA,
Great Falls, Montana, for the appellant.

OPINION
W. FLETCHER, Circuit Judge:
Federal prisoner Morris Buckles appeals the district court’s
dismissal of his 28 U.S.C. § 2255 motion as untimely. Buckles argues that our order recalling the mandate so that we
could consider his motion for appointment of certiorari counsel restarted the clock for the 90-day period within which he
was required to petition the Supreme Court for certiorari
review of his conviction on direct appeal. If our order
restarted the clock, Buckles’s petition for certiorari was
timely. If the petition was timely, his subsequent § 2255
motion was timely as well. Conversely, if his petition for certiorari was untimely, so was his § 2255 motion. In the event
that his § 2255 motion was untimely, Buckles contends in the
alternative that misconduct by his attorney and misinformation provided by someone in the office of the Ninth Circuit
Clerk entitle him to equitable tolling.
We hold that our order recalling the mandate did not restart
the clock for purposes of petitioning for certiorari. Buckles’s
petition for certiorari and, in turn, his § 2255 motion, were
therefore untimely. However, Buckles’s contention that this
court’s Clerk provided him with inaccurate advice, if true,
may entitle him to equitable tolling. We therefore vacate the
dismissal of his § 2255 motion and remand for further proceedings.

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I.

Background

After a bench trial in the District of Montana, Buckles was
convicted of possession of methamphetamine with intent to
distribute and possession of marijuana with intent to distribute, both in violation of 21 U.S.C. § 841(a)(1). He was sentenced to concurrent terms of 120 months. On February 12,
2007, we affirmed. United States v. Buckles, 220 F. App’x
631 (9th Cir. 2007). On March 2, 2007, 18 days after the entry
of judgment, Buckles, through counsel, petitioned for panel
rehearing and/or rehearing en banc. Although the petition was
four days late, see Fed. R. App. P. 35(c), 40(a)(1), our Clerk
exercised her discretion under General Order 6.3a to file the
late petition. See Fed. R. App. P. 35(c); Adv. Comm. Note 1
to 9th Cir. R. 35-1 to 35-3; 9th Cir. Gen. Order 6.3a (“Upon
motion or sua sponte, the Clerk may grant one (1) initial
extension of time of no more than seven (7) calendar days for
the filing of a petition for rehearing or petition for rehearing
en banc in cases in which the petition must be filed within
fourteen (14) days from entry of judgment.”). We denied
panel rehearing and rehearing en banc on April 3, 2007. The
mandate issued on April 11, 2007. See Fed. R. App. P. 41(b).
Buckles, then incarcerated, sought to petition the United
States Supreme Court for certiorari, but could no longer
afford to pay his retained counsel. Buckles was aware of
Ninth Circuit Rule 4-1(e), which provides:
In cases in which a defendant who had retained
counsel . . . wishes to file a petition for writ of certiorari in the United States Supreme Court . . . and
is financially unable to obtain representation for this
purpose, this Court will entertain a motion for
appointment of counsel within 21 days from . . . the
denial of rehearing. It is the duty of retained counsel
to assist the client in preparing and filing a motion
for appointment of counsel and a financial affidavit
under this subsection.

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On April 24, 2007 — the 21st day after we denied rehearing — Buckles mailed counsel a letter “officially requesting
that you assistance [sic] me in filing a motion for appointment
of counsel to the Ninth Circuit so that I can have an attorney
file a writ of certiorari . . . . I am making this request to you
pursuant to Ninth Circuit Rule 4-1(e).” On the same day,
Buckles forwarded a copy of this letter to our Clerk. On May
3, 2007, Buckles mailed our Clerk a pro se motion styled a
“Supplemental Motion for Appointment of Counsel to File a
Petition for Writ of Certiorari.” Buckles stated in his “supplemental motion” that he had telephoned counsel and had
requested assistance in moving for appointment of counsel.
Buckles stated that counsel “informed [him] that he had to
check into the procedure that he would have to follow, and
asked [Buckles] to check back with him later.” Buckles stated
that he subsequently made “many” unsuccessful attempts to
contact counsel. In his May 3 “Supplemental Motion,” Buckles asked us to construe his April 24 letter as a timely Rule
4-1(e) motion to appoint counsel.
On June 12, 2007, we issued a one-paragraph order that
read as follows:
We recall the mandate in this case to consider Buckles’ supplemental motion for appointment of counsel. We grant his request to construe his letter filed
April 24, 2007 as a timely motion to appoint counsel
under Ninth Circuit Rule 4-1(e). So construed, we
DENY the motion.
The mandate reissued on June 20, 2007.
On September 5, 2007, Buckles filed a pro se petition for
certiorari with the Supreme Court. On September 14, 2007,
the Supreme Court Clerk wrote a letter to Buckles stating that
his petition had been “filed . . . and placed on the docket September 14, 2007 as No. 07-6495.” The letter then stated that
Buckles’s petition “was due July 2, 2007; therefore the peti-

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tion was filed with a notation as to its untimeliness.” It
appears that the Supreme Court Clerk believed that the time
to file Buckles’s petition for certiorari had begun to run on
April 3, 2007, when our court denied rehearing, and thus
expired 90 days later, on July 2, 2007. See Sup. Ct. R. 13(3)
(“[I]f the lower court appropriately entertains an untimely
petition for rehearing . . . the time to file the petition for a writ
of certiorari for all parties . . . runs from the date of the denial
of rehearing.”); Sup. Ct. R. 13(1) (90-day deadline for certiorari review).
On September 20, 2007, Buckles, still pro se, filed a declaration with the Supreme Court Clerk stating that on June 4,
2007, his sister Bonnie Weinberger had telephoned the office
of the Clerk for the Ninth Circuit to inquire about the status
of his Rule 4-1(e) motion. Buckles declared that “the Clerk
for the Ninth Circuit Court of Appeals told Bonnie Weinberger that the timeline for filing the Writ of Certiorari would be
stayed until a ruling was made on the Petition for Appointment of Counsel and a new mandate date would be issued.”
Buckles declared that he interpreted the statement to his sister
to mean that he needed to file his petition for certiorari within
“90 days of the recalled mandate from the Ninth Circuit” —
meaning, in Buckles’s view, 90 days from June 12, the day
our court recalled the mandate in his case. The Supreme Court
Clerk did not respond to Buckles’s declaration. The Supreme
Court denied Buckles’s petition for certiorari without explanation on October 15, 2007. Buckles v. United States, 552
U.S. 982 (2007) (“Petition for writ of certiorari to the United
States Court of Appeals for the Ninth Circuit denied.”).
Buckles filed a pro se § 2255 motion in the district court on
October 13, 2008. The district court held that the motion was
untimely and dismissed it with prejudice. We granted a certificate of appealability limited to the timeliness question,
granted Buckles’s motion to proceed in forma pauperis, and
appointed counsel. This appeal followed.

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II.

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Standard of Review

We review the dismissal of a § 2255 motion on timeliness
grounds de novo. United States v. Battles, 362 F.3d 1195,
1196 (9th Cir. 2004) (citing Laws v. LaMarque, 351 F.3d 919,
922 (9th Cir. 2003)). When the facts are not disputed, we
review a request for equitable tolling de novo. United States
v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010) (citing Battles, 362 F.3d at 1196).
III.

Discussion

A.

Timeliness

[1] Section 2255 provides that “[a] 1-year period of limitation shall apply to a motion under this section. The limitation
period shall run from . . . the date on which the judgment of
conviction becomes final.” 28 U.S.C. § 2255(f)(1). “Finality
attaches when [the Supreme Court] affirms a conviction on
the merits on direct review or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition
expires.” Clay v. United States, 537 U.S. 522, 527 (2003). See
also Jimenez v. Quarterman, 129 S. Ct. 681, 685 (2009)
(same); Aguirre-Ganceda, 592 F.3d at 1045 (same). Determining whether Buckles’s § 2255 motion was timely therefore requires us to ascertain the date on which his conviction
became final. That task, in turn, requires us to identify the
date on which Buckles’s petition for certiorari was due. If his
petition for certiorari was timely, his conviction became final
when the Supreme Court denied the petition. That date was
October 15, 2007. If his petition for certiorari was untimely,
his conviction became final ninety days after we denied
rehearing. That date was July 2, 2007. For the reasons that
follow, we conclude that Buckles’s petition for certiorari was
untimely, and that the one-year limitations period for his
§ 2255 motion therefore ran from July 2, 2007. Consequently,
Buckles’s § 2255 motion, filed on October 13, 2008, was not
timely.

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[2] Supreme Court Rule 13(1) provides that “a petition for
a writ of certiorari to review a judgment in any case, civil or
criminal, entered by . . . a United States court of appeals . . .
is timely when it is filed with the Clerk of this Court within
90 days after entry of the judgment.” Supreme Court Rule
13(3) elaborates:
The time to file a petition for a writ of certiorari runs
from the date of entry of the judgment or order
sought to be reviewed, and not from the issuance
date of the mandate (or its equivalent under local
practice). But if a petition for rehearing is timely
filed in the lower court by any party, or if the lower
court appropriately entertains an untimely petition
for rehearing or sua sponte considers rehearing, the
time to file the petition for a writ of certiorari for all
parties (whether or not they requested rehearing or
joined in the petition for rehearing) runs from the
date of the denial of rehearing or, if rehearing is
granted, the subsequent entry of judgment.
[3] In Buckles’s case, the 90-day clock initially began to
run on February 12, 2007, when this court affirmed his conviction. The clock restarted on April 3, 2007, when this court
denied rehearing after “appropriately entertain[ing]” Buckles’s late petition. Sup. Ct. R. 13(3); 9th Cir. Gen. Order 6.3a.
See Young v. Harper, 520 U.S. 143, 147 n.1 (1997) (90-day
clock runs from denial of late petition for rehearing that
appellate court treats as timely and considers on the merits).
Buckles argues that the panel’s order of June 12, 2007, recalling the mandate restarted the 90-day clock once more, so that
his September 5, 2007 petition for certiorari was timely. In
Buckles’s view, we recalled the mandate in order to extend
his time to petition for certiorari. This is true, Buckles argues,
because we simultaneously denied his motion for appointment
of counsel and we could not have expected him to prepare and
file a pro se petition in the three weeks remaining before July
2, 2007. Cf. Finn v. United States, 219 F.2d 894, 904 (9th Cir.

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1955) (per curiam) (court withdrew mandate to give
defendants-appellants additional time to petition for
rari). To buttress his argument, Buckles points to the
that he declares was given to his sister by someone
court’s Clerk’s office.

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pro se
certioadvice
in our

[4] Our order recalling the mandate had neither the intent
nor the effect that Buckles attributes to it. The text of the
order gives no indication that we recalled the mandate for any
reason other than that expressly stated, namely, the consideration of Buckles’s Rule 4-1(e) motion. Some post-judgment
actions by a lower court — for example, those that “raise the
question whether the court will modify the judgment and alter
the parties’ rights” — do toll the certiorari clock. Hibbs v.
Winn, 542 U.S. 88, 98 (2004) (appellate court’s sua sponte
recall of mandate and consideration of rehearing). See also,
e.g., Limtiaco v. Camacho, 549 U.S. 483, 487-88 (2007) (consideration of petition for discretionary review by Ninth Circuit
of judgment of Guam Supreme Court). Likewise, a court of
appeals may extend the time to petition for certiorari by vacating and re-entering its judgment. See, e.g., Wilkins v. United
States, 441 U.S. 468, 469-70 (1979) (per curiam); Doherty v.
United States, 404 U.S. 28, 29 (1971) (per curiam); Finn, 219
F.2d at 904. But Buckles’s Rule 4-1(e) motion to us did not
seek rehearing, entry of a new judgment, or anything else that
would have restarted the clock for purposes of the 90-day
period for seeking certiorari. Recall of the mandate, without
more, did not restart the 90-day clock, and the time to petition
for certiorari ran from the denial of rehearing.
Buckles argues that Wilkins permits a court of appeals, in
some circumstances, to vacate its prior judgment and enter a
new one solely to enable the filing of a timely petition for certiorari. We agree with that characterization of Wilkins. 441
U.S. at 468-69. But Wilkins is unavailing because our order
in Buckles’s case only recalled the mandate. It did not enter
a new judgment affirming his conviction.

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[5] Nor did the Supreme Court’s denial of Buckles’s
untimely petition for certiorari create a new “date on which
the judgment of conviction bec[ame] final.” 28 U.S.C.
§ 2255(f)(1). Unlike the 90-day deadline for seeking certiorari
review of a civil judgment, which is jurisdictional, the 90-day
deadline for seeking review of a criminal judgment “may be
waived because ‘[t]he procedural rules adopted by the Court
for the orderly transaction of its business are not jurisdictional
and can be relaxed by the Court in the exercise of its discretion.’ ” Bowles v. Russell, 551 U.S. 205, 212 (2007) (quoting
Schacht v. United States, 398 U.S. 58, 64 (1970)). Cf. id. at
211-12; 28 U.S.C. § 2101(c); Sup. Ct. R. 13(2). Because the
Supreme Court is free to consider late criminal petitions, its
Clerk has adopted the following practice:
The Clerk’s Office will . . . accept untimely criminal
(but not civil) petitions for docketing, and transmit
them to the Court with a notice that they have been
filed out of time. Most of these petitions, like other
petitions, are denied without comment, so it is
impossible to tell whether the tardiness of the petitions is the reason (or part of the reason) for the
Court’s action. All that can be said is that during the
past 25 years, none of the criminal petitions that
have been filed tardily by defendants — and there
have been a number — have been granted . . . .
EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE, § 6.1(e),
at 391 (9th ed. 2007).
The Supreme Court has not allowed late filings to toll
AEDPA’s statute of limitations. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) (28 U.S.C. § 2244(d)(1)(A)
not tolled by untimely state postconviction petition because “a
state prisoner could toll the statute of limitations at will simply by filing untimely state postconviction motions. This
would turn § 2244(d)(2) into a de facto extension mechanism
. . . and open the door to abusive delay.”). On a similar ratio-

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nale, we have held that a state supreme court’s dismissal of
a notice of appeal as untimely does not constitute the “conclusion of direct review” — and does not restart the statute of
limitations — under § 2244(d)(1)(A). Randle v. Crawford,
604 F.3d 1047, 1054-55 (9th Cir. 2010). We reasoned that
“[i]f the one-year limitations period were made contingent on
the resolution of a petitioner’s attempt to file an untimely
notice of appeal, a petitioner could indefinitely delay the commencement of the one-year period by simply waiting to file
such notice until after the normal expiration date.” Id. We are
unwilling to treat the unexplained and routine denial of criminal certiorari petition that the Supreme Court’s Clerk has
labeled untimely as an indication that the Court forgave the
untimeliness of Buckles’s petition, thereby restarting the oneyear limitations period of § 2255(f)(1).
B.

Equitable Tolling

[6] Buckles argues that even if his § 2255 motion was
untimely, we should equitably toll AEDPA’s statute of limitations. A § 2255 movant is entitled to equitable tolling “only
if he shows ‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his
way’ and prevented timely filing.” Holland v. Florida, 130 S.
Ct. 2549, 2562 (2010) (quoting Pace, 544 U.S. at 418). The
movant must show that the extraordinary circumstances
“ ‘were the cause of his untimeliness.’ ” Bryant v. Ariz. Att’y
Gen., 499 F.3d 1056, 1061 (9th Cir. 2006) (quoting Spitsyn v.
Moore, 345 F.3d 796, 799 (9th Cir. 2003)). Buckles identifies
two circumstances that he argues prevented him from timely
filing. He points to counsel’s failure to respond to his request
for assistance in filing his Rule 4-1(e) motion, and the misinformation that Buckles declares was provided to his sister
Weinberger by our court’s Clerk’s office.
Buckles states that, despite repeated requests, counsel did
not assist him in preparing and filing his Rule 4-1(e) motion.
If so — and we emphasize that counsel has not been heard on

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the matter — counsel’s conduct violated not only Rule 4-1(e),
which states that “[i]t is the duty of retained counsel to assist
the client in preparing and filing a motion for appointment of
counsel and a financial affidavit,” but also basic principles of
professional responsibility. For example, the Montana Rules
of Professional Conduct direct that “a lawyer shall abide by
a client’s decisions concerning the objectives of representation and . . . shall consult with the client as to the means by
which they are to be pursued,” MONT. RULES OF PROF’L
CONDUCT R. 1.2; that a lawyer “shall act with reasonable diligence and promptness in representing a client,” id. R. 1.3; and
that a lawyer “shall reasonably consult with the client about
the means by which the client’s objectives are to be accomplished.” Id. R. 1.4(a)(2).
In Holland, the Supreme Court held that an attorney’s failure to file a federal habeas petition despite his client’s request
to do so, and failure to communicate with his client despite
letters and phone calls requesting information, was “professional misconduct that . . . could . . . amount to egregious
behavior and create an extraordinary circumstance that warrants equitable tolling.” 130 S. Ct. at 2563. Holland referred
specifically to the types of ethical violations alleged here: the
failure “to communicate with . . . clients” and “to implement
clients’ reasonable requests,” as well as the imperative “never
to abandon a client.” Id. at 2564. Counsel’s misconduct, as
alleged, resembles that described in Holland. Counsel “failed
to file” Buckles’s Rule 4-1(e) motion “despite [Buckles’s]
many letters that repeatedly emphasized the importance of his
doing so”; “did not do the research necessary to find out the
proper filing date, despite [Buckles’s] letters that went so far
as to identify the applicable legal rules”; and “failed to communicate with his client . . . despite various pleas.” Id. at
2564. The misconduct in Holland continued over a period of
years, but this is a difference in degree, not in kind. See also
id. (citing Spitsyn, 345 F.3d at 800-02 (“extraordinary circumstances” sufficient to warrant equitable tolling where counsel
failed to file client’s habeas petition and ignored communica-

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tions from client and client’s mother)); Porter v. Ollison, 620
F.3d 952, 960 (9th Cir. 2010) (interpreting Holland to treat
“violations of canons of professional responsibility” as evidence that attorney’s conduct was “extraordinary”).
[7] Nonetheless, we conclude that counsel’s alleged misconduct does not entitle Buckles to equitable tolling because
counsel’s inaction had no effect on the timeliness of Buckles’s § 2255 motion. That is, we conclude that Buckles has
not demonstrated the necessary causal link between counsel’s
alleged actions and the untimeliness of the § 2255 motion
now before us. See Spitsyn, 345 F.3d at 799. The question
before us is not whether the untimeliness of Buckles’s certiorari petition should be excused. Rather, the question is
whether the untimeliness of his § 2255 motion should be
excused. Once we denied Buckles’s Rule 4-1(e) motion on the
merits, Buckles had more than one year within which to file
his § 2255 motion. That he failed to do so is not attributable
to counsel. See Randle, 604 F.3d at 1058 (counsel’s failure to
file a timely notice of appeal from a state conviction “had little to no bearing on [petitioner’s] ability to file a timely federal habeas petition. Counsel’s failure . . . simply meant that
[petitioner] had one year from the expiration of his time to file
a notice of appeal in which to initiate a federal habeas action
— it did not prevent him from filing the petition.”).
[8] Buckles’s claim that he relied detrimentally on the
advice that he declares this court’s Clerk provided to his sister
Bonnie Weinberger has more merit. We have allowed equitable tolling to petitioners who have relied detrimentally on our
incorrect statements of the law. See, e.g., Townsend v.
Knowles, 562 F.3d 1200, 1205-06 (9th Cir. 2009), abrogated
on other grounds by Walker v. Martin, 131 S. Ct. 1120
(2011); Harris v. Carter, 515 F.3d 1051, 1055-56 (9th Cir.
2008). We have also suggested that a litigant who is “affirmatively misled” by a court’s erroneous instructions may be entitled to tolling. Brambles v. Duncan, 412 F.3d 1066, 1070 (9th
Cir. 2005). See also Pliler v. Ford, 542 U.S. 225, 235 (2004)

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(O’Connor, J., concurring). Other circuits have extended these
principles to misinformation provided by a court clerk. See,
e.g., Coppage v. McKune, 534 F.3d 1279, 1281-82 (10th Cir.
2008) (prisoner excused from checking status of state postconviction motion during period when clerk assured prisoner
that court would not act); Knight v. Schofield, 292 F.3d 709,
711 (11th Cir. 2002) (tolling where clerk of state supreme
court failed to notify petitioner of decision denying relief, as
clerk had promised). Cf. Corjasso v. Ayers, 278 F.3d 874,
878-80 (9th Cir. 2002) (tolling where pro se habeas petition
mishandled by district court clerk).
If it is true that Buckles’s sister was given erroneous advice
on which Buckles detrimentally relied, then he may be entitled to equitable tolling. “[T]he purpose of the equitable tolling doctrine ‘is to soften the harsh impact of technical rules
which might otherwise prevent a good faith litigant from having his day in court,’ ” and to “ ‘prevent the unjust technical
forfeiture of causes of action.’ ” Harris, 515 F.3d at 1055
(quoting Jones v. Blanas, 393 F.3d 918, 928 (9th Cir. 2004)).
See also Holland, 130 S. Ct. at 2563 (“[C]ourts of equity have
sought to ‘relieve hardships which, from time to time, arise
from a hard and fast adherence’ to more absolute legal rules,
which if strictly applied, threaten the ‘evils of archaic rigidity.’ ” (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co.,
322 U.S. 238, 248 (1944))).
[9] Buckles states that he took this court’s Clerk’s office at
its word and proceeded on the assumption that he had 90 days
from the denial of his Rule 4-1(e) motion to petition for certiorari. Buckles petitioned in what he understood to be a
timely manner. The Supreme Court Clerk’s letter of September 14, 2007 told Buckles that his petition was late, but also
that his petition had been “filed,” “placed on the docket,” and
assigned a case number. The Supreme Court’s Clerk provided
Buckles with a form “for notifying opposing counsel that the
case was docketed.” Buckles followed up within a week by
mailing the Court a declaration detailing the procedural his-

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tory of his case, including a description of the advice his sister
received from our court’s Clerk’s office, and disputing the
Supreme Court Clerk’s characterization of the petition as
untimely. No further correspondence issued from the Court
until its summary denial of certiorari on October 15, 2007,
which was Buckles’s first and only indication that his petition
had been denied.
[10] Buckles could have concluded that the Court credited
his explanation, excused his lateness, and denied his petition
on the merits. The Court’s order stated that the petition had
been “denied” rather than “dismissed,” which could have
indicated a merits disposition to Buckles. Cf. Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991) (“[A]lthough the order was
unexplained, the nature of the disposition (‘dismissed’ rather
than ‘denied’) . . . indicated that the basis was procedural
default.” (discussing Coleman v. Thompson, 501 U.S. 722,
727-28 (1991)). The surrounding circumstances would have
supported this interpretation. Buckles was told that his petition had been “docketed.” He supplied an explanation for his
late filing, and the Supreme Court denied his petition without
any indication of a disposition on the ground of untimeliness.
In these circumstances, Buckles, a pro se litigant, could reasonably have taken the Court’s summary order as a denial on
the merits. Cf. Harrington v. Richter, 131 S. Ct. 770, 784-85
(2011) (“When a federal claim has been presented to a state
court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to
the contrary.”)
It is impossible to ascertain the decisional basis for the
Court’s summary denial of certiorari. See Nunnemaker, 501
U.S. at 803 (“[S]ometimes, . . . the basis of the decision is not
merely undiscoverable, but nonexistent. . . . [M]any formulary
orders are not meant to convey anything as to the reason for
the decision. Attributing a reason is therefore both difficult
and artificial.”). But we do not need to do so in order to

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resolve Buckles’s request for equitable tolling. We need only
determine that Buckles could reasonably have inferred from
the processing of his petition for certiorari — filing, notice of
lateness, explanation of lateness, apparent merits denial —
that his petition was timely, in harmony with the misinformation allegedly provided by this court’s Clerk’s office.
[11] If the facts are as Buckles alleges, he may be entitled
to equitable tolling. But at this point Buckles has only provided a hearsay declaration to establish that this court’s
Clerk’s office provided his sister with inaccurate advice.
Moreover, the record does not reflect what, if anything, Buckles did during the 363-day period between the Supreme
Court’s denial of his petition for certiorari and the filing of his
§ 2255 motion to verify his belief that his petition for certiorari was timely, and that he had correctly calculated the filing
deadline for his § 2255 motion. The Supreme Court Clerk’s
letter advising Buckles that his petition for certiorari was
“late” alerted him to the possibility that his conviction had
become final on July 2, 2007 — as we conclude it did — thus
leaving him less time to seek § 2255 relief than he had
thought. Buckles could have taken additional steps to confirm
that he had correctly calculated the filing deadline. On the
record so far developed, we cannot conclude that Buckles has
conclusively shown that “he has been pursuing his rights diligently,” as would be necessary to entitle him to equitable tolling. Holland, 130 S. Ct. at 2562.
[12] Where “there are ‘circumstances consistent with petitioner’s petition and declaration under which he would be
entitled to . . . equitable tolling,’ ” but the record does not
conclusively establish the entitlement, “remand for factual
development of the record is the appropriate course of
action.” Mendoza v. Carey, 449 F.3d 1065, 1071 (9th Cir.
2006) (quoting Whalem/Hunt v. Early, 233 F.3d 1146, 1148
(9th Cir. 2000) (en banc) (per curiam), rev’d on other grounds
sub nom. Pliler v. Ford, 542 U.S. 225 (2004)). Because the
district court did not consider Buckles’s request for equitable

Case: 08-36031 06/02/2011 Page: 16 of 16

ID: 7770261 DktEntry: 28-1

UNITED STATES v. BUCKLES

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tolling or develop a factual record, we remand. See Ford v.
Hubbard, 308 F.3d 1086, 1107 (9th Cir. 2002) (“[E]quitable
tolling issues ‘are highly fact-dependent, and . . . the district
court is in a better position to develop the facts and assess
their legal significance in the first instance.’ ” (quoting
Whalem/Hunt, 233 F.3d at 1148)). On remand, Buckles must
substantiate his contention that the Ninth Circuit Clerk provided his sister with misinformation. He must also demonstrate his ongoing diligence to verify the correct deadline for
filing his § 2255 motion, keeping in mind that “[t]he diligence
required for equitable tolling purposes is reasonable diligence,
not maximum feasible diligence,” Holland, 130 S. Ct. at 2565
(internal quotation marks and citations omitted).
Conclusion
[13] We conclude that Buckles’s § 2255 motion was
untimely. However, we conclude that Buckles may be entitled
to equitable tolling. Accordingly, we vacate the dismissal of
the § 2255 motion and remand for further proceedings.
VACATED AND REMANDED.