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Name: Fue v. Biter
Case #: 12-55307
Court: US Court of Appeals
District 9 Cir
Opinion Date: 01/15/2016

Petitioner not entitled to equitable tolling of the one-year statute of limitations for filing a federal habeas petition (28 U.S.C. § 2244(d)) when he waited 14 months before inquiring into the status of his state habeas petition. In 2009, Fue filed a state habeas petition in the California Supreme Court challenging his convictions for armed carjacking. The California Supreme Court denied his petition in 2010, but, according to Fue, never notified him of that denial. After waiting 14 months, Fue mailed a letter to the California Supreme Court to inquire into the status of his case and the clerk responded that his case was no longer active. Thereafter, Fue filed a federal habeas petition, which the district court dismissed as untimely. He appealed, arguing that the district court misapplied the doctrine of equitable tolling. Held: Affirmed. A prisoner seeking equitable tolling bears the burden of showing (1) that an extraordinary circumstance prevented the timely filing of his habeas petition and (2) that he diligently pursued his rights. (Holland v. Florida (2010) 560 U.S. 631, 649.) Courts have generally determined that a prisoner who delayed fewer than 10 months before inquiring into the status of his case acted with sufficient diligence. (See Diaz v. Kelly (2d Cir. 2008) 515 F.3d 149, 155-156.) However, a prisoner who delayed 16 months or more was deemed not to have acted with sufficient diligence. (Drew v. Dept. of Corr. (11th Cir. 2002) 297 F.3d 1279, 1288.) Fue’s delay of 14 months is closer to the cases finding lack of reasonable diligence. Although the prisoner in Huizar v. Carey (9th Cir. 2001) was found diligent despite a longer delay, he, unlike Fue, had engaged in a “steady stream of correspondence” with a non-responsive court. Fue “sat on his hands and did not bother to inquire into the status of his petition . . . .” He was not diligent. The district court did not err in rejecting his equitable tolling argument and dismissing his petition as untimely.

The full opinion is available on the court’s website here: