Argued and Submitted, Pasadena, California February
Appeal from the United States District Court for the Central District of California. D.C. No. 2:09-cv-07028-JSL-RZ. J. Spencer Letts, District Judge, Presiding.
John Ward (argued), San Francisco, California, for Petitioner-Appellant.
Kim Aarons (argued), Deputy Attorney General; Michael R. Johnsen, Supervising Deputy Attorney General; Lance E. Winters, Senior Assistant Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Kamala D. Harris, Attorney General of California, Los Angeles, California, for Respondent-Appellee.
Before: Harry Pregerson and Marsha S. Berzon, Circuit Judges, and Carol Bagley Amon, Chief District Judge.[*]
Petitioner-appellant Anthony Butler filed two federal habeas petitions relating to the same state-court conviction, the first on October 5, 2008, and the second on September 21, 2009. The district court dismissed the first petition, which contained both exhausted and unexhausted claims, without offering Butler the option of amending his petition to exclude the unexhausted claims. The same court denied Butler's second federal habeas petition as untimely. Butler appeals the dismissal of his second petition, arguing that because the district court dismissed his first petition without first providing him an opportunity to amend the petition, he is entitled to equitable tolling from the date the district court dismissed his first federal habeas petition until the filing of his second petition. Because we hold that equitable tolling renders at least one claim raised in Butler's second petition timely, we reverse and remand to the district court for further proceedings consistent with this disposition.
Butler was convicted of attempted premeditated murder by a Los Angeles County
jury on October 28, 2005. On June 23, 2006, the California Court of Appeal rejected Butler's claim that the trial court erred in failing to instruct the jury on attempted voluntary manslaughter. Butler appealed to the Supreme Court of California which, on September 13, 2006, denied Butler's petition for review. Ninety days later, on December 12, 2006, the clock began running on the Antiterrorism and Effective Death Penalty Act's (" AEDPA" ), 28 U.S.C. § 2244(d), one-year statute of limitations. Porter v. Ollison, 620 F.3d 952, 958-59 (9th Cir. 2010).
Following the California Supreme Court's denial of his appeal, Butler filed a series of state habeas petitions, leading up to his first federal habeas petition filed on October 5, 2008. In his October 5, 2008 petition, Butler raised five grounds on which he sought relief: (1) the trial court's failure to instruct on manslaughter, (2) deprivation of an impartial jury because two jurors fell asleep, (3) ineffective assistance of counsel for failure to argue self-defense, (4) ineffective assistance of counsel for failure to advise defendant that he could replace a sleeping juror with an alternate, and (5) the trial court's abuse of discretion in not allowing the defense to recall a government witness. Butler noted that a state petition raising his fifth ground for relief, the trial court's abuse of discretion, was concurrently pending before the Los Angeles Superior Court. On November 14, 2008, the district court summarily dismissed Butler's federal habeas petition, citing Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983). Butler was not provided an opportunity to amend his habeas petition to excise any unexhausted claims prior to its dismissal.
After filing additional state habeas petitions, Butler returned to the district court on September 21, 2009. Again, he raised five grounds of relief, four that were raised in his first federal petition, and one new ground not previously raised in federal court. On October 1, 2009, the magistrate judge issued an Order To Show ...