Filed: Aug. 27, 2007
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT STEVEN LLOYD BRYANT, Petitioner-Appellant, No. 06-16138 v. D.C. No. CV-01-00543-PGR ARIZONA ATTORNEY GENERAL; DORA SCHRIRO, OPINION Respondents-Appellees. Appeal from the United States District Court for the District of Arizona Paul G. Rosenblatt, District Judge, Presiding Argued and Submitted April 18, 2007—San Francisco, California Filed August 27, 2007 Before: Alfred T. Goodwin, Dorothy W. Nelson, and Consuelo M. Calla
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT STEVEN LLOYD BRYANT, Petitioner-Appellant, No. 06-16138 v. D.C. No. CV-01-00543-PGR ARIZONA ATTORNEY GENERAL; DORA SCHRIRO, OPINION Respondents-Appellees. Appeal from the United States District Court for the District of Arizona Paul G. Rosenblatt, District Judge, Presiding Argued and Submitted April 18, 2007—San Francisco, California Filed August 27, 2007 Before: Alfred T. Goodwin, Dorothy W. Nelson, and Consuelo M. Callah..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN LLOYD BRYANT,
Petitioner-Appellant, No. 06-16138
v.
D.C. No.
CV-01-00543-PGR
ARIZONA ATTORNEY GENERAL; DORA
SCHRIRO, OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted
April 18, 2007—San Francisco, California
Filed August 27, 2007
Before: Alfred T. Goodwin, Dorothy W. Nelson, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Goodwin
10635
BRYANT v. ARIZONA ATTORNEY GENERAL 10637
COUNSEL
Megan B. Moriarty, Assistant Federal Public Defender, Phoe-
nix, Arizona, for the petitioner-appellant.
Robert A. Walsh, Deputy Attorney General, Phoenix, Ari-
zona, for the respondents-appellees.
OPINION
GOODWIN, Circuit Judge:
The district court dismissed Steven Lloyd Bryant’s habeas
petition as untimely under the one-year statute of limitations
established by the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2244(d). Bryant appeals, argu-
ing that he is entitled to statutory and equitable tolling
because the Arizona Department of Corrections (“ADOC”)
did not make available to him case law interpreting § 2244(d).
We affirm.
10638 BRYANT v. ARIZONA ATTORNEY GENERAL
I. BACKGROUND
Bryant pled guilty to first degree murder in 1988 and
received a life sentence. His direct appeal was dismissed by
the Arizona Supreme Court in June 1989. In March 1990, he
filed a pro se petition for post-conviction relief pursuant to
Arizona Rule of Criminal Procedure 32 (“Rule 32”),1 alleging
ineffective assistance of appellate counsel and seeking to
withdraw his guilty plea. A state trial court denied that peti-
tion in June 1992. Bryant filed two more Rule 32 petitions,
which were denied by state trial courts on June 22, 1992, and
October 3, 1994. Bryant did not appeal those decisions to the
Arizona Court of Appeals.
On April 24, 1996, AEDPA took effect, imposing a one-
year statute of limitations for habeas petitions filed by state
prisoners. For Bryant, whose conviction became final prior to
AEDPA’s enactment, the statute of limitations started running
the day after AEDPA’s effective date and expired on April
24, 1997. Patterson v. Stewart,
251 F.3d 1243, 1246 (9th Cir.
2001); Calderon v. United States Dist. Ct. for the Cent. Dist.
of Cal. (Beeler),
128 F.3d 1283, 1287 (9th Cir. 1997), over-
ruled in part on other grounds, Calderon v. United States
Dist. Ct. for the Cent. Dist. of Cal. (Kelly),
163 F.3d 530, 540
(9th Cir. 1998).
On March 24, 2000, Bryant filed with the Arizona Supreme
Court a motion to recall the mandate and to submit a supple-
mental brief on direct appeal. The Arizona Supreme Court
denied the motion on September 26, 2000, and denied recon-
sideration on November 28, 2000.
On March 23, 2001, Bryant filed the instant federal habeas
petition, alleging ineffective assistance of appellate counsel.
1
A Rule 32 petition is considered a direct appeal for purposes of
AEDPA’s statute of limitations. Summers v. Schriro,
481 F.3d 710, 711
(9th Cir. 2007).
BRYANT v. ARIZONA ATTORNEY GENERAL 10639
Appellees argued that the petition should be dismissed as
time-barred. Bryant responded that the limitations period
should be tolled because he did not have notice of the
AEDPA statute of limitations due to deficiencies in the prison
library.
Bryant was housed in ADOC’s Florence prison complex
when AEDPA took effect. Shipping records show that the
Florence complex received ten copies of the United States
Code Annotated Statutory Supplement No. 2, which con-
tained AEDPA, in July 1996. There is also evidence that cop-
ies of three publications containing AEDPA — the 1997
United States Code Annotated Cumulative Annual Pocket
Part for Title 28, the 1997 edition of Federal Criminal Code
and Rules, and the 1997 edition of Federal Civil Judicial Pro-
cedure and Rules — were shipped to the Florence complex in
March and April 1997. In the district court, Bryant argued that
evidence of shipment and receipt does not prove that the pub-
lications were actually on the prison library shelves and avail-
able for inmate use. He conceded, however, that prison library
carried updated editions of Federal Civil Judicial Procedure
and Rules and Federal Criminal Code and Rules as of April
2, 1999. He also did not dispute that, after he was transferred
to the Yuma prison complex in July 2000, he continued to
have access to those two publications as well as to Larry W.
Yackle, Post-Conviction Remedies (1981 & Supp. 2000).
It is undisputed that the Florence and Yuma libraries did
not have case law collections after August 4, 1997. ADOC
had previously maintained complete sets of the Federal
Reporters, the Supreme Court Reporter, and the Arizona
Reporter pursuant to an injunction issued by a federal district
court in 1992. Casey v. Lewis,
834 F. Supp. 1553, 1561-62
(D. Ariz. 1992). In 1996, the Supreme Court reversed the
injunction. Lewis v. Casey,
518 U.S. 343 (1996). In August
1997, the ADOC implemented Departmental Order 902
(“D.O. 902”), which disbanded the case law collections in
ADOC facilities. At the same time, D.O. 902 provided
10640 BRYANT v. ARIZONA ATTORNEY GENERAL
inmates with access to paralegals. The paralegals were per-
mitted to direct prospective habeas petitioners to legal materi-
als containing AEDPA, but were not allowed to conduct legal
research for inmates.
The district court found it unnecessary to make factual
findings on whether AEDPA was available to Bryant prior to
April 2, 1999. Instead, the district court assumed that the stat-
ute of limitations was tolled until April 2, 1999, at which
point Bryant undisputedly had access to the text of AEDPA.
Because the limitations period expired a year later in April
2000, the district court concluded that the March 2001 habeas
petition was time-barred. The district court further determined
that equitable tolling was not warranted because Bryant did
not pursue his petition with diligence.
The district court certified for appellate review “the issue
of whether the limitations period of [AEDPA] was tolled by
the Arizona Department of Corrections’ failure to provide the
petitioner with case law interpreting and explaining the limita-
tions period.”
II. STANDARD OF REVIEW
We review de novo the district court’s dismissal of a
habeas petition as time-barred. Spitsyn v. Moore,
345 F.3d
796, 799 (9th Cir. 2003). We review the district court’s find-
ings of fact for clear error.
Id. In a claim for equitable tolling,
if the underlying facts are undisputed, the question of whether
the statute should be equitably tolled is reviewed de novo.
Id.
III. DISCUSSION
A. Statutory Tolling
[1] AEDPA established a one-year period of limitations for
federal habeas petitions filed by state prisoners. 28 U.S.C.
BRYANT v. ARIZONA ATTORNEY GENERAL 10641
§ 2244(d)(1).2 With exceptions not relevant here, the limita-
tions period runs from “the date on which the judgment
became final by the conclusion of direct review or the expira-
tion of time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). Because Bryant’s direct appeal proceedings
ended before AEDPA took effect, the limitations period
started running the day after AEDPA’s effective date and
expired on April 24, 1997.
Patterson, 251 F.3d at 1246;
Beeler, 128 F.3d at 1287 (9th Cir. 1997). The limitations
period is statutorily tolled if the petitioner’s delay was attrib-
utable to “[an] impediment to filing an application created by
State action in violation of the Constitution or the laws of the
United States . . . , if the applicant was prevented from filing
by such State action.” 28 U.S.C. § 2244(d)(1)(B) (emphasis
added). The limitations period would then run from the date
on which the impediment is removed.
Id. To obtain relief
under § 2244(d)(1)(B), the petitioner must show a causal con-
2
Section 2244(d)(1) provides:
A 1-year period of limitation shall apply to an application for
a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from
the latest of —
(A) the date on which the judgment became final by the con-
clusion of direct review or the expiration of the time for seeking
such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the Untied States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise
of due diligence.
28 U.S.C. § 2244(d)(1).
10642 BRYANT v. ARIZONA ATTORNEY GENERAL
nection between the unlawful impediment and his failure to
file a timely habeas petition. Gaston v. Palmer,
417 F.3d
1030, 1034-35 (9th Cir. 2005), amended by
447 F.3d 1165
(9th Cir. 2006); see also Allen v. Lewis,
255 F.3d 798, 800
(9th Cir. 2001).
[2] Like the district court, we find it unnecessary to con-
sider whether Bryant had access to AEDPA prior to April 2,
1999. Even if we assume that the limitations period was tolled
until that date, the instant petition is still time-barred.
[3] Bryant contends that lack of access to case law on 28
U.S.C. § 2244(d)(2) impeded him from researching whether
the limitations period would have been tolled by the motion
to recall the mandate he filed with the Arizona Supreme Court
in March 2000. See 28 U.S.C. § 2244(d)(2) (“The time during
which a properly filed application for State post-conviction or
other collateral review . . . is pending shall not be counted
toward any period of limitation under this subsection.”). Put
differently, the argument is that Bryant might have filed a
timely federal habeas petition instead of seeking further state
remedies if he could have ascertained that the motion to recall
the mandate would not have tolled the limitations period.
However, even if the motion tolled the statute of limitations
— which it did not3 — Bryant’s federal habeas petition would
still have been time-barred. Assuming the limitations period
began to run on April 2, 1999, there were only nine days left
when Bryant filed the motion to recall the mandate on March
24, 2000. The Arizona Supreme Court issued its final decision
on November 28, 2000. To avoid the time bar, Bryant would
have had to file a federal habeas petition within nine days. But
he did not file his habeas petition until March 2001.
3
The motion to recall the mandate was directed toward direct review.
Under § 2244(d)(2), only collateral review proceedings can toll the
AEDPA statute of limitations. 28 U.S.C. § 2244(d)(2); see also Walkowiak
v. Haines,
272 F.3d 234, 236-37 (4th Cir. 2001).
BRYANT v. ARIZONA ATTORNEY GENERAL 10643
[4] Bryant argues that the statute of limitations never began
to run because the ADOC impeded him from filing a timely
petition by not making available case law interpreting
§ 2244(d)(1). The bare statutory text to which he had access,
he contends, was insufficient to inform him of the time limita-
tion. Nonetheless, Bryant cannot establish a causal connec-
tion. Bryant testified that he first learned of AEDPA’s statute
of limitations when appellees filed their answer to his federal
habeas petition in August 2001. However, AEDPA was avail-
able to Bryant as of April 2, 1999. Because Bryant was
unaware of the statute of limitations between April 2, 1999,
and April 2, 2000, the unavailability of case law interpreting
the statute of limitations during that time period could not
have been the cause of Bryant’s late-filed petition. In other
words, lack of access to case law during the relevant time
period was not an impediment for purposes of statutory toll-
ing because it did not prevent Bryant from filing his petition.
See 28 U.S.C. § 2244(d)(1)(B) (providing for statutory tolling
when an impediment is removed that prevented a timely fil-
ing); see also Wood v. Spencer,
487 F.3d 1, 6-8 (1st Cir.
2007); Lloyd v. Vannatta,
296 F.3d 630, 633 (7th Cir. 2002).
Because Bryant has not demonstrated a causal connection
between the unavailability of case law in the prison library
and the untimeliness of his habeas petition, he is not entitled
to statutory tolling.
B. Equitable Tolling
To equitably toll AEDPA’s one-year statute of limitations,
“[t]he petitioner must establish two elements: (1) that he has
been pursuing his rights diligently, and (2) that some extraor-
dinary circumstances stood in his way.” Raspberry v. Garcia,
448 F.3d 1150, 1153 (9th Cir. 2006) (quotation marks and
citation omitted). “The prisoner must show that the extraordi-
nary circumstances were the cause of his untimeliness.” Spit-
syn, 345 F.3d at 799 (internal quotation marks and citation
omitted).
10644 BRYANT v. ARIZONA ATTORNEY GENERAL
[5] As discussed above, Bryant has failed to establish the
requisite causal connection. Moreover, as the district court
found, Bryant did not pursue his petition with diligence. A
petitioner must show that his untimeliness was caused by an
external impediment and not by his own lack of diligence. See
Roy v. Lampert,
465 F.3d 964, 973 (9th Cir. 2006). Bryant
made no effort to seek relief between the denial of his last
Rule 32 petition in October 1994 and the filing of the motion
to recall the mandate in March 2000. There is also no evi-
dence that Bryant took advantage of available paralegal assis-
tance before filing the petition. For these reasons, Bryant is
not entitled to equitable tolling.
IV. CONCLUSION
Bryant’s habeas petition is time barred and the judgment is
affirmed.
AFFIRMED