It's not unusual that for a Ninth Circuit panel to dismiss a habeas petition. Especially if that panel includes Judge O'Scannlain.
It is, however, somewhat unusual for Judge Bybee to dissent from such a disposition and to argue that equitable tolling should apply.
All that happens here.
The majority, in an opinion authored by Judge Rawlinson, thought that the prisoner here sat on his butt and should have followed up more diligently with the California Supreme Court to figure out what was going on with his state habeas petition in that court. But Judge Bybee doesn't like a rule that would have prisoners repeatedly pester state courts with inquiries about their petitions, and thinks that what the defendant here did was reasonable given what he was told by the clerk.
Let's get your take on one issue. Imagine that you file a habeas petition with the California Supreme Court. There's no deadline for them to act on this petition, and it's not unusual for them to take a year or two to get around to the thing. Once they do, however, the clerk is required to "promptly" let you know what happened to your petition; e.g., send you a copy of its denial.
You haven't heard boo (read: anything) from the California Supreme Court. It's been 14 months, and you're still in prison, without a word, so you send the court a letter that says, essentially: "Hey, what's up?" At which point the clerk writes you back and says:
acknowledge receipt of your letter received February 3, 2011,
I checked our dockets and found no record of a pending
petition for writ of habeas corpus having been filed on or
about November 2009.”
What do you think that letter tells you?
The majority thinks the letter tells you that your petition has been denied. The dissent thinks that letter tells you that they never got a petition from you. That latter interpretation is, indeed, what the prisoner as well as his attorney thought it meant as well. (The prisoner wrote his lawyer saying "What should I do?" and his lawyer responded "explain to the Court . . . that you already sent your petition” and to seek leave to
file the petition again.)
Both interpretations are plausible. The majority focuses on the word "pending". The dissent thinks it reasonable that a reader wouldn't parse the thing out so finely and focuses on no petition "having been filed on or about November 2009."
The petition had, in fact, been filed. And dismissed long ago. But the clerk had never told the prisoner about the dismissal at the time.
Language is ambiguous. Time is fluid. And fleeting. And what counts as "excusable" conduct is far from certain.
Two different approaches to these concepts here.