NOT FOR PUBLICATION                          FILED
                                                                          MAR 21 2017
                      UNITED STATES COURT OF APPEALS
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


ALFREDO CAMARGO,                                  No. 15-16014

                Petitioner-Appellant,             D.C. No. 2:13-cv-02488-NVW

    v.
                                                  MEMORANDUM*
CHARLES L. RYAN; ATTORNEY
GENERAL OF THE STATE OF
ARIZONA,

                Respondents-Appellees.


                     Appeal from the United States District Court
                              for the District of Arizona
                       Neil V. Wake, District Judge, Presiding

                      Argued and Submitted December 12, 2016
                              San Francisco, California

Before: GRABER and HURWITZ, Circuit Judges, and BOULWARE, ** District
Judge.

         The district court found the habeas corpus petition filed by Alfredo Camargo,



*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
       The Honorable Richard F. Boulware, United States District Judge for the
District of Nevada, sitting by designation.
an Arizona state prisoner, untimely under 28 U.S.C. § 2244(d). The district court

found that Mr. Camargo’s conviction became final on August 27, 2010, thirty days

after July 28, 2010, when the state court issued an order granting a thirty-day

extension of time to seek reconsideration or review of Camargo’s direct appeal. His

federal habeas petition was filed on December 3, 2013, outside the one-year statute

of limitations under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), which runs from the date a conviction became final. The district court

found that Camargo was not entitled either to statutory tolling or equitable tolling of

the statute of limitations. We reverse on the issue of equitable tolling and find

Camargo’s federal habeas petition to be timely.

      1. Camargo pleaded guilty to various offenses on April 8, 2008. On August

16, 2008, Camargo filed a Notice of Post-Conviction Relief (PCR) with the Arizona

Superior Court for the County of Maricopa. This form of proceeding is the only

available form of direct appellate review under Arizona law for a defendant who has

pleaded guilty. Ariz. R. Crim. P. 32.1. Camargo was appointed counsel, and counsel

ultimately filed a Notice of Completion of Review, indicating the lack of an issue

for review. The court ordered counsel to remain in an advisory capacity.

      2. On August 11, 2009, Camargo filed a pro se PCR petition with the Superior

Court, arguing ineffective assistance of trial and PCR counsel. In response to

Camargo’s petition, the state argued that Camargo waived his challenge to trial

                                          2
counsel by pleading guilty, and that he had no right to counsel in his PCR

proceeding. The Superior Court summarily dismissed Camargo’s first PCR petition

“for the reasons stated in the Response to the Petition” on July 7, 2010.

      3. On July 26, 2010, Camargo’s PCR advisory counsel filed a motion with the

Arizona Superior Court, withdrawing from her advisory role and requesting “that

the Rule 32.9 time limits for the filing of a Motion for Rehearing or Petition for

Review of the Court’s denial of [Defendant’s] Petition for Post-Conviction Relief

be extended an additional 30 days.” The court granted the request on July 28, 2010.

On August 30, 2010, Camargo filed a pro se Petition for Review with the Arizona

Court of Appeals. On September 3, 2010, the Court of Appeals dismissed the

Petition as “untimely,” because it “was not filed within 30 days” of the trial court’s

denial of his petition, failing to take into account the extension granted. The State

now concedes that this was error.

      4. Camargo filed a second pro se PCR petition in Superior Court on September

24, 2010. This second PCR petition asserted ineffective assistance of counsel during

Camargo’s first round of PCR proceedings. The Superior Court dismissed the

petition as untimely under Ariz. R. Crim. P. 32.4(a), interpreting it as only raising a

claim of ineffective assistance of trial counsel. The State now concedes that this

decision was incorrect and that the Superior Court should have recognized the




                                          3
second PCR petition as timely raising a claim of ineffective assistance of counsel in

the first PCR proceeding.

      5. Camargo sought review of the denial of his second PCR petition in the

Arizona Court of Appeals, arguing that his first and second PCR petitions were

timely, and that he properly raised ineffective assistance of post-conviction counsel

in his second PCR petition. The State responded that Camargo’s second PCR

petition was properly dismissed as successive. The state now concedes that its

submitted argument was incorrect, because Camargo’s second PCR petition was not

successive as it properly raised the issue of ineffective assistance of counsel in his

first PCR proceeding. The State now also acknowledges that the second PCR

petition was timely filed.

      6. The Arizona Court of Appeals denied review of the second PCR petition

on December 4, 2012. After being granted an extension, Camargo filed a timely pro

se petition for review in the Arizona Supreme Court. In its response, the State

acknowledged the filing of the petition, but declined to respond, thus missing another

opportunity to alert the state courts about the Superior Court’s prior erroneous

untimeliness determinations. The Arizona Supreme Court denied review in a

summary order on March 27, 2013.

      7. On December 3, 2013, Camargo filed a timely pro se petition for a federal

writ of habeas corpus, and later filed an amended petition. The amended petition

                                          4
raised claims of constructive denial of the right to counsel at trial, and ineffective

assistance of counsel in his first PCR proceeding. The district court dismissed the

petition as untimely, finding that Mr. Camargo’s conviction became final on August

27, 2010. It therefore concluded the federal petition was filed outside of the one-

year statute of limitations set by AEDPA. The district court acknowledged that the

state court had made erroneous determinations as to the untimeliness of Camargo’s

PCR petitions, but held that it lacked the authority to overturn these determinations

and find Camargo’s second PCR petition properly filed under 28 U.S.C. §

2244(d)(2), such that it would statutorily toll the AEDPA statute of limitations. The

district court also found that equitable tolling did not apply to Camargo’s federal

petition.

      8. Equitable tolling of the one-year limitations period under § 2244 is

available when a state prisoner establishes that: (1) he has pursued his rights

diligently, and (2) extraordinary circumstances prevented timely filing. See Rasberry

v. Garcia, 

, 1153 (9th Cir. 2006). “The petitioner must additionally

show that the extraordinary circumstances were the cause of his untimeliness, and

that the extraordinary circumstances made it impossible to file a petition on time.”

Ramirez v. Yates, 

, 997 (9th Cir. 2009) (citations and internal quotation

marks omitted). The person seeking equitable tolling is required to have exercised

reasonable diligence in attempting to file, which we have described as “the effort

                                          5
that a reasonable person might be expected to deliver under his or her particular

circumstances.” Doe v. Busby, 

, 1015 (9th Cir. 2011).

      9. “If the facts underlying a claim for equitable tolling are undisputed,” the

propriety of equitable tolling is a matter of law “reviewed de novo.” Gibbs v.

Legrand, 

, 884 (9th Cir. 2014) (quoting Spitsyn v. Moore, 

,

799 (9th Cir. 2003)). In this case, the “exceptional circumstances” required for

equitable tolling are clearly present: (a) the Arizona state courts’ repeated, incorrect

determinations that Camargo’s post-conviction review petitions were untimely; (b)

the State’s multiple failures to inform the state courts of those clearly erroneous

timeliness determinations; and (c) the State’s affirmative misstatement to the Court

of Appeals that Camargo’s second PCR petition was successive. Camargo diligently

filed all of his state post-conviction filings, pro se, until he exhausted his state

remedies. Indeed, he raised the timeliness errors in his submissions. But for the

incorrect state court timeliness determinations, Camargo’s PCR petitions would

have been heard on the merits.

      10. We therefore find that the statute of limitations on Camargo’s federal

habeas petition should have been equitably tolled from the date he filed his second

PCR petition, September 24, 2010, until review of that petition concluded, March

27, 2013. The district court determined that Camargo’s conviction became final on




                                           6
August 27, 2010.1 In light of that determination and our finding on equitable tolling,

Camargo’s federal habeas petition was timely.

      11. We do not reach the question whether the district court had the authority

to find Camargo’s state petition “properly filed” pursuant to 28 U.S.C. § 2244(d)

under the Supreme Court’s holding in Pace v. DiGuglielmo, in spite of the state

court’s contrary and erroneous timeliness determinations. 

, 414-17

(2005). We also decline to reach the merits of Camargo’s federal habeas petition,

and remand for the district court to consider them in the first instance.

      REVERSED AND REMANDED.




1
  On appeal, the State concedes that Camargo may be entitled to an even later starting
date, of October 27, 2010, from which to run the AEDPA one-year statute of
limitations, based on his petition for review and his motion for reconsideration
filings regarding his first PCR petition. However, we need not reach this issue,
because it does not affect the timeliness of his federal petition, given our equitable
tolling determination.
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