Federal habeas petitioner who waited 14 months to check on the status of the habeas petition that he filed in the California Supreme Court may be entitled to equitable tolling of the deadline for his federal habeas petition. Fue filed a habeas petition in the California Supreme Court. After 14 months, Fue checked on the status of the petition and was informed that there was no record of a pending petition (Fue later learned that the California Supreme Court had denied the petition six months after it was filed). Fue then filed a federal habeas petition, which was dismissed as untimely. He appealed. Held: Reversed. A federal habeas petitioner is “entitled to equitable tolling [of the one-year statute of limitations imposed by AEDPA] only if he shows (1) that he has pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevent timely filing.” (Holland v. Florida (2010) 560 U.S. 631, 649.) Here, the state argued that Fue was not diligent because he waited 14 months to check on the status of his state habeas petition. Relying in part on Huizar v. Carey (9th Cir. 2001) 273 F.3d 1220, the court here disagreed with the state. Like the 21 months at issue in Huizar, 14 months is “not an unusually long time to wait for a court’s decision.” Additionally, unlike trial courts in California, the California Supreme Court has no time limit for ruling on a habeas petition and its rules require it to promptly notify parties when it renders a decision. The California Supreme Court “has adopted a ‘don’t call us; we’ll call you’ policy.” The Ninth Circuit declined to adopt a rule requiring early and frequent inquiries to show diligence because such a rule “would be a waste of time for petitioners and a heavy administrative burden for state courts.” Fue also acted with sufficient post-notice diligence by filing a federal petition within 32 days of receiving a letter from a California Supreme Court clerk. The district court erred by dismissing the petition.
The full opinion is available on the court’s website here: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/17/12-55307.pdf