Nedds v. Calderon, 678 F.3d 777 (9th Cir. 2012)

In 1997 Nedds was convicted in state court of possession of illegal drugs supplemented by a record of four prior robbery convictions.  He started the usual course of appeal in state court, all denied; filed repeated habeas corpus petitions in Superior Court, Court of Appeal and California Supreme Court; all denied; then in U.S. District Court; denied.  Appealed to the 9th Circuit and, unsurprisingly, granted.

The Supreme Court has reversed 9th Circuit precedent so often that an inmate can assert “equitable tolling” of the one year limitation imposed by AEDPA for filing habeas corpus in federal court after exhausting state post trial relief.  Changes in the law caused by the Supreme Court overturning decisions of the 9th Circuit equitably tolls the filing date in federal court-according to 9th Circuit precedent;  Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008).

 Prior to 2002 the 9th Circuit had so liberally extended the one year AEDPA deadline filing that almost anyone could escape its limitations; Nino v. Gonzales, 183 F.3d 1003 (9th Cir. 1999). Finally, in Carey v. Saffold, 536 U.S. 214 (2002) the Supreme Court intervened and wrote: “The Ninth Circuit’s rule [on tolling] consequently threatens to undermine the statutory purpose of encouraging prompt filings in federal court in order to  protect the federal system from being forced to hear stale claims.” And these are not the harshest words  used by the Supreme Court in its decision.

Nine years later, in Lakey v. Hickman, 633 F.3d 782 (9th Cir. 2011), the 9th Circuit held the petitioner made no affirmative showing of reliance on discredited 9th Circuit precedent in seeking “equitable tolling,” and denied his petition for habeas corpus. But in Nedds the court wrote “showing of actual reliance may be presumed from the circumstances but [Lakey] does not announce a new affirmative showing of actual reliance.” This statement shreds Lakey.

Nedds alleged nothing in his petition relying on overturned 9th Circuit precedent.  But the court in a footnote exercises manipulation of the “circumstances” in the record warranting the “presumption “of reliance:  “The government argues that Nedds is  precluded from arguing that he is entitled to equitable tolling because of his reliance on now-overruled Ninth Circuit precedent because this specific equitable tolling argument is an uncertified claim not included in the Certificate of Appealability. The Certificate of Appealability was granted with respect to the following issue:s ‘whether the district court properly dismissed appellant’s petition as untimely, including (1) whether appellant is entitled to statutory ‘gap’ tolling, and (2) whether appellant is entitled to equitable tolling based on his lack of access to his legal materials and/or his delayed notice that the California Court of Appeal had denied his state habeas petition.’ This language is probably broad enough to encompass the variant of the equitable tolling argument we address.”

This is an outright misreading of the record.  The petition contains not one word of reliance on overturned 9th Circuit precedent.  Nor is there any such request in any of the petitions filed in state or federal court.