Steven Fue v. Leland McEwen

Filing

FILED OPINION (SIDNEY R. THOMAS, ALEX KOZINSKI, BARRY G. SILVERMAN, M. MARGARET MCKEOWN, WILLIAM A. FLETCHER, RICHARD A. PAEZ, RICHARD C. TALLMAN, RICHARD R. CLIFTON, JAY S. BYBEE, N. RANDY SMITH and ANDREW D. HURWITZ) REVERSED AND REMANDED. Judge: JSB Authoring, FILED AND ENTERED JUDGMENT. [10200336]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEVEN PELESASA FUE,
Petitioner-Appellant,
v.
MARTIN BITER, Warden,
Respondent-Appellee.

No. 12-55307
D.C. No.
2:11-cv-02436DMG-MRW
OPINION

Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted En Banc September 8, 2016
San Francisco, California
Filed November 17, 2016
Before: Sidney R. Thomas, Chief Judge, and Alex
Kozinski, Barry G. Silverman, M. Margaret McKeown,
William A. Fletcher, Richard A. Paez, Richard C. Tallman,
Richard R. Clifton, Jay S. Bybee, N. Randy Smith and
Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Bybee

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FUE V. BITER
SUMMARY*

Habeas Corpus
The en banc court reversed the district court’s judgment
dismissing as untimely California state prisoner Steven Fue’s
federal habeas corpus petition, and remanded for further
proceedings, in a case in which Fue argues that he is entitled
to equitable tolling because the California Supreme Court
never notified him that it had denied his state habeas petition.
The en banc court held that Fue’s lack of knowledge of
the denial, if proven, would entitle him to equitable tolling,
and remanded for further factual development on whether Fue
received notice of the denial.
The en banc court wrote that Fue could reasonably have
expected to be notified once the California Supreme Court
ruled on his petition, and that his decision to contact the court
about the status of his case after fourteen months shows
diligence, not a lack thereof.
The en banc court wrote that to the extent this court has
required that petitioners must demonstrate that it was
“impossible” to file a timely petition, such a requirement is
inconsistent with the requirement in Holland v. Florida, 560
U.S. 631 (2010), that a habeas petitioner demonstrate only
that he has been pursuing his rights diligently, and that some
extraordinary circumstance stood in his way and prevented
timely filing.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Michael Tanaka (argued), Deputy Federal Public Defender;
Sean K. Kennedy, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California, for
Petitioner-Appellant.
David F. Glassman (argued) and Yun K. Lee, Deputy
Attorneys General; Scott A. Taryle, Supervising Deputy
Attorney General; Lance E. Winters, Senior Assistant
Attorney General; Dane R. Gillette, Chief Assistant Attorney
General; Kamala D. Harris, Attorney General; Office of the
Attorney General, Los Angeles, California, for RespondentAppellee.

OPINION
BYBEE, Circuit Judge:
After the California Supreme Court denied Steven Fue’s
direct appeal from his conviction for carjacking, Fue had one
year in which to file a federal habeas corpus petition. Instead,
Fue filed a state habeas petition, which tolled the time for
filing his federal petition. When Fue finally filed his federal
habeas petition, the district court dismissed it as untimely.
Fue argues that he is entitled to equitable tolling because the
California Supreme Court never notified him that it had
denied his state petition. We hold that Fue’s lack of
knowledge of the denial, if proven, would entitle him to
equitable tolling. Accordingly, we reverse the judgment of
the district court and remand for further proceedings.

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FUE V. BITER
I

Fue was sentenced to twenty-six years in state prison after
a jury found him guilty of carjacking, second degree robbery,
possession of a firearm by a felon, and unlawful driving of a
vehicle. The California Court of Appeal affirmed the
convictions, and the California Supreme Court denied Fue’s
petition for review on February 18, 2009. The Antiterrorism
and Effective Death Penalty Act (“AEDPA”) imposes a oneyear limitations period for filing a federal habeas corpus
petition, starting from the date that a petitioner’s conviction
becomes final. 28 U.S.C. § 2244(d)(1). Fue’s convictions
became final on May 19, 2009, ninety days after the
California Supreme Court denied his petition for review on
direct appeal.
On November 15, 2009, Fue mailed a habeas petition to
the California Supreme Court, thus tolling the limitations
period. See 28 U.S.C. § 2244(d)(2). After fourteen months,
Fue wrote to the court clerk on January 31, 2011 to inquire
about the status of his petition. The clerk’s response letter,
dated February 3, 2011, stated in full: “This will
acknowledge receipt of your letter received February 3, 2011,
I checked our dockets and found no record of a pending
petition for writ of habeas corpus having been filed on or
about November 2009.” In fact, the California Supreme
Court had received the petition and denied it on May 20,
2010, six months after it was filed. Fue alleges that the court
never notified him that it denied his petition.
After consulting his lawyer about what to make of the
clerk’s response letter, Fue mailed a federal habeas petition
to the United States District Court for the Central District of
California on March 7, 2011. Fue’s petition noted that he had

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filed a state habeas petition in the California Supreme Court,
but that he did not have a docket number and was “waiting
for a response still.” The State filed a motion to dismiss the
petition as barred under AEDPA’s one-year statute of
limitations, arguing that the limitations period started running
again after the denial of Fue’s state habeas petition on May
20, 2010 and expired on November 20, 2010. Fue claims that
the State’s motion to dismiss was the first notice he ever
received that the California Supreme Court had denied his
state habeas petition. The district court dismissed Fue’s
petition as untimely, rejecting his contention that he was
entitled to equitable tolling. Fue appealed, and a panel
affirmed the district court in a divided decision. See Fue v.
Biter, 810 F.3d 1114 (9th Cir. 2016). We granted rehearing
en banc, — F.3d — (9th Cir. 2016), and now reverse.
II
“We review de novo the dismissal of a petition for writ of
habeas corpus on statute of limitations grounds.” Corjasso v.
Ayers, 278 F.3d 874, 877 (9th Cir. 2002). In reviewing a
motion to dismiss a habeas petition as untimely, we “accept[]
the facts as alleged” by the petitioner. See Huizar v. Carey,
273 F.3d 1220, 1224 (9th Cir. 2001). Taking these facts as
true, “we review de novo whether the statute of limitations
should be equitably tolled.” Corjasso, 278 F.3d at 877
(quoting Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.
1999)).
III
A habeas petitioner is “‘entitled to equitable tolling’ only
if he shows ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance

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stood in his way’ and prevented timely filing.” Holland v.
Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). We have
previously held that a petitioner’s lack of knowledge that his
state habeas petition has been denied can constitute an
extraordinary circumstance that prevents timely filing.
Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). For
purposes of this appeal from a motion to dismiss, the State
does not contest that the California Supreme Court failed to
notify Fue that it denied his state habeas petition. Rather, the
State contends that Fue failed to pursue his rights diligently
by waiting fourteen months to contact the court about the
status of his case. For the reasons outlined below, we
disagree.
A
“The diligence required for equitable tolling purposes is
‘reasonable diligence,’ not ‘maximum feasible diligence.’”
Holland, 560 U.S. at 653 (citations omitted). Reasonable
diligence requires only “the effort that a reasonable person
might be expected to deliver under his or her particular
circumstances.” Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir.
2011). “To determine if a petitioner has been diligent in
pursuing his petition, courts consider the petitioner’s overall
level of care and caution in light of his or her particular
circumstances.” Id. at 1013.
As with other equitable considerations, determining
whether a petitioner acted with reasonable diligence is a factspecific inquiry. Holland, 560 U.S. at 649–50; Busby,
661 F.3d at 1011. This is “not the arena of bright-lines and
dates certain.” Busby, 661 F.3d at 1015. We are guided by
“decisions made in other similar cases . . . with awareness of

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the fact that specific circumstances, often hard to predict in
advance, could warrant special treatment in an appropriate
case.” Holland, 560 U.S. at 650.
One such similar case is Huizar v. Carey, 273 F.3d 1220
(9th Cir. 2001). In that case, a petitioner requested equitable
tolling of AEDPA’s limitations period when he mailed a
habeas petition to the California Superior Court, but the
petition was never received. Huizar, 273 F.3d at 1222. He
wrote the court two months after mailing the petition to
inquire about the status of his case but received no response.
Id. He then waited another twenty-one months before
contacting the court again. Id. In assessing whether the
petitioner acted with reasonable diligence, we stated that
twenty-one months is “not an unusually long time to wait for
a court’s decision.” Id. at 1224.
The conclusion that twenty-one months, and by inclusion
fourteen months, is “not an unusually long time to wait for a
court’s decision” applies with extra force in the context of the
present case. The petitioner in Huizar filed his habeas
petition in the California Superior Court, whereas Fue filed
his petition in the California Supreme Court. The California
Rules of Court require the Superior Court to render a decision
on a habeas petition within sixty days and provide a process
for a petitioner to request a ruling if his petition is not
resolved within that time. Cal. R. Ct. 4.551(a)(3). The
California Supreme Court has no such time limit for ruling on
habeas petitions, and its rules require it to “promptly” notify
parties when it renders a decision. Cal. R. Ct. 8.532(a). In
other words, the Superior Court rule invites petitioners to
follow up on their habeas petitions, but the Supreme Court
has adopted a “don’t call us; we’ll call you” policy. This
difference may explain why the petitioner in Huizar made

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contact with the court just two months after mailing his
petition. It may also explain why Fue did not think he needed
to contact the court earlier than he did. Fue could reasonably
have expected to be notified once the California Supreme
Court ruled on his petition. His decision to contact the court
after fourteen months, “not an unusually long time to wait for
a court’s decision,” actually shows his diligence, not a lack
thereof.
Similar cases from other circuits illustrate application of
the same principles and the case-specific nature of the
determination. The Sixth Circuit, noting that “it is a difficult,
if not impossible endeavor, [for litigants] to estimate how
long a reviewing court will take to decide a particular
motion,” held that a pro se petitioner who waited nine months
before contacting the court about his case acted with
reasonable diligence. Miller v. Collins, 305 F.3d 491, 496
(6th Cir. 2002). The Fifth Circuit held that an eleven-month
delay in contacting the court was reasonable “given [the
petitioner’s] prisoner and pro se status and the fact that the
[court] had the legal duty to notify him” when it rendered a
decision, which it failed to do. Hardy v. Quarterman,
577 F.3d 596, 599 (5th Cir. 2009) (per curiam). And the
Eleventh Circuit sanctioned a wait of over sixteen months in
contacting the court when a pro se petitioner had been told
that he would be notified of any decision in his case, but he
never received such notice. Knight v. Schofield, 292 F.3d
709, 710–11 (11th Cir. 2002) (per curiam).1 Fue, also a pro

1
The Eleventh Circuit later distinguished Knight, holding that a
sixteen-month delay in contacting the court was unreasonable when no
one had explicitly told the petitioner that he could expect a notification
from the court when it rendered a decision. Drew v. Dep’t of Corr.,
297 F.3d 1278, 1288 n.3 (11th Cir. 2002). The court in Drew was

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se petitioner entitled to receive notice of the state court’s
decision, acted diligently by contacting the court after a
reasonable amount of time (here, fourteen months) had
passed. Compare Diaz v. Kelly, 515 F.3d 149, 154–56 (2d
Cir. 2008) (finding that a pro se petitioner’s nine-month delay
in contacting the court was reasonable where the law required
the court to notify parties of its decisions, but the petitioner
did not receive notice), with LaCava v. Kyler, 398 F.3d 271,
276–78 (3d Cir. 2005) (declining to grant equitable tolling
after a twenty-one month delay in contacting the court where
the petitioner was represented by counsel and not entitled to
personal notice of the court’s decision), and Cousin v.
Lensing, 310 F.3d 843, 849 (5th Cir. 2002) (same, twentyfour months).
B
The State would have us distinguish Huizar because the
petitioner in that case engaged in a “steady stream of
correspondence” with the court, 273 F.3d at 1224, while Fue
wrote the California Supreme Court only once. We first note
that, contrary to the State’s assertion, Huizar did not establish
a requirement that habeas petitioners maintain a “steady
stream of correspondence” with the court. We merely
observed in Huizar that the petitioner had made multiple
attempts to contact the court, which tended to show his
diligence. Id. The petitioner in Huizar contacted the court

reviewing for clear error, id. at 1283, 1289–90, while our review at this
stage of the litigation is de novo. Nevertheless, it strikes us that “Drew
had every reason to expect that the court would notify him once it ruled
on his petition; every litigant knows that the court is supposed to inform
the parties when a result has been reached.” Id. at 1300 (Barkett, J.,
dissenting).

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three times after mailing his petition—once after two months,
again twenty-one months later, and again five months after
that. Id. Such repeated correspondence made sense in Huizar
because habeas petitioners in the California Superior Court
have an avenue for requesting a ruling if the court does not
provide one within sixty days. See Cal. R. Ct. 4.551(a)(3)(B).
There is, however, no reason to require petitioners filing in
the California Supreme Court, which promises to promptly
notify parties when it renders a decision, see Cal. R. Ct.
8.532(a), to make early and frequent inquiries with the court
about the status of their petitions. We do not require
petitioners to engage in such “overzealous or extreme”
conduct to show their diligence. Busby, 661 F.3d at 1015.
We also doubt that the California Supreme Court would
welcome the flood of status-update requests that would likely
follow were we to require all habeas petitioners to engage in
a “steady stream of correspondence” with the court to show
their diligence. In most cases, a state court will notify
petitioners when it has reached a decision. A rule requiring
petitioners to seek early and frequent updates would be a
waste of time for petitioners and a heavy administrative
burden for state courts. See Diaz, 515 F.3d at 155 (“We see
no point in obliging a pro se litigant to pester a state court
with frequent inquiries as to whether a pending motion has
been decided, at least until a substantial period of time has
elapsed.”); Drew v. Dep’t of Corr., 297 F.3d 1278, 1299 n.10
(11th Cir. 2002) (Barkett, J., dissenting) (“If litigants were
required to inquire about the status of their case before giving
the court a reasonable period to reach a decision and notify
them of the result, court personnel would be faced with a
substantial administrative burden.”).

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C
Ordinarily, a petitioner must act with reasonable diligence
both before and after receiving delayed notice that the state
denied his habeas petition. See Miller, 305 F.3d at 496
(considering whether a petitioner acted diligently “both
before and after receiving notice”). In this case, the parties
disagree over when Fue received notice that his state habeas
petition had been denied. Fue alleged that he first learned
that the California Supreme Court had actually denied his
petition when he received the State’s motion to dismiss his
federal habeas petition. The State counters that Fue received
notice of the denial in the clerk’s letter of February 3, 2011.
On the record before us, we disagree with the State. The
clerk’s letter informed Fue that the clerk “found no record of
a pending petition for writ of habeas corpus having been filed
on or about November 2009.” (Emphasis added.) Far from
putting Fue on notice that his petition had been denied, the
clerk’s letter could be read to suggest that the court never
received Fue’s petition. Fue, for his part, “did not know what
to think of” the letter and ultimately decided to file a federal
habeas petition immediately. In the questionnaire attached to
his federal petition, he indicated that he was still “waiting for
a response” from the California Supreme Court on his state
habeas petition and wrote “N/A” for the date of decision in
that matter. He also checked “Yes” on the questionnaire
when asked if he had “any petitions now pending (i.e., filed
but not yet decided) in any state or federal court,” and
provided the details of his state habeas petition when asked to
explain. We agree with Fue that, whatever the letter meant,
it did not give notice that Fue’s petition had been denied.

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Even if the clerk’s letter had been sufficient to notify Fue
that the California Supreme Court had denied his petition,
Fue acted with the requisite post-notice diligence. Fue
thought he would have three months after a denial of his state
petition to file a federal petition. (He actually had six
months, but his appellate lawyer miscalculated.) Fue filed his
federal petition within thirty-two days of receiving the clerk’s
letter—well within the time he thought he had remaining.
During those thirty-two days, Fue was in contact with his
lawyer and deciding how to proceed in light of the clerk’s
letter. Fue’s actions show that he made “the effort that a
reasonable person might be expected to deliver under his . . .
particular circumstances.” Busby, 661 F.3d at 1015.
D
The State cites cases in which we have stated that “[t]he
petitioner must additionally show . . . that the ‘extraordinary
circumstances ma[de] it impossible to file a petition on
time.’” Ramirez, 571 F.3d at 997 (second alteration in
original) (citation omitted); see also, e.g., Randle v.
Crawford, 604 F.3d 1047, 1057 (9th Cir. 2010) (stating that
equitable tolling applies only if “extraordinary circumstances
beyond a prisoner’s control make it impossible to file a
petition on time” (emphasis and citation omitted)); Roy v.
Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (same); Spitsyn
v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (same). At the
conclusion of Fue’s direct appeal in state court, Fue had
exhausted his state remedies for all three grounds for relief
raised in his federal habeas petition. Fue postponed filing his
federal habeas petition, however, so that he could exhaust one
additional claim. That additional claim was the subject
matter of the state habeas petition before the California
Supreme Court. Because Fue did not raise the additional

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claim in his federal habeas petition, the State argues that the
delayed notice was not the cause of Fue’s untimeliness, as
Fue could have filed the instant petition raising only
previously exhausted claims on the first day of AEDPA’s
limitations period.
Technically, the State is correct that it would not have
been impossible for Fue to file his federal petition raising
only previously exhausted claims within the limitations
period. But “as we have previously said, the ‘impossibility’
requirement should not be strictly imposed because ‘imposing
extraordinarily high evidentiary standards on pro se prisoner
litigants—who have already faced an unusual obstacle
beyond their control during the AEDPA limitation
period—runs against the grain’ of our precedent.” Sossa v.
Diaz, 729 F.3d 1225, 1236 (9th Cir. 2013) (quoting Lott v.
Mueller, 304 F.3d 918, 924 (9th Cir. 2002)). The word
“impossible” crept into our jurisprudence before the Supreme
Court’s decision in Holland, which stressed “flexibility” and
a disdain for “mechanical rules.” 560 U.S. at 650 (citation
omitted). Our post-Holland cases “have applied this
‘impossibility’ standard leniently, rejecting a literal
interpretation.” Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th
Cir. 2014). To the extent that we have required that
petitioners must demonstrate that it was “impossible” to file
a timely petition, such a requirement is inconsistent with
Holland’s requirement that a habeas petitioner demonstrate
only “‘(1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way’
and prevented timely filing.” Holland, 560 U.S. at 649
(citation omitted).

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IV

All of the above discussion assumes, as we must in
reviewing a grant of a motion to dismiss, that Fue’s
allegations are true. See Huizar, 273 F.3d at 1224. Fue’s
indication in his federal habeas petition that the California
Supreme Court had not yet decided his case supplies strong
evidence that Fue did not receive notice of the denial, as does
the very fact that he found it necessary to ask the California
Supreme Court for a status update. But the district court
made no factual findings with respect to this issue, and the
State has not yet had the chance to contest Fue’s claims.
Accordingly, we reverse the district court’s order granting the
State’s motion to dismiss and remand the case for further
factual development. If the district court finds the facts to be
as Fue claims, “it shall deem his petition timely and consider
it on the merits.” Id.
REVERSED and REMANDED.