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Summary of Argument

1. The record below raises significant issues, unaddressed by the District Court, concerning the constitutionality of the lockdowns that California imposed upon Manning. The racial basis of those lockdowns calls for the District Court on remand to strictly scrutinize whether California had a compelling interest to act on that basis, and if the means chosen were narrowly tailored in comparison to race-neutral alternatives.  If California cannot pass strict scrutiny, then Manning asserted a constitutional violation creating an impediment to his filing of the Petition, meriting tolling under the federal habeas statute.

2. Manning’s deliberate compliance with the federal habeas statute’s requirement of exhaustion of state remedies should prevent the imposition of a time bar on his application.  The statute’s limitations period must be read alongside the exhaustion requirement, and their mutual application should not work to disfavor an applicant merely by accident of in which state he can be found.  To avoid internal inconsistencies within the federal statute, as well as other constitutional concerns, the Court should read the federal habeas statute to start the running of the limitations period on federal habeas relief only upon the exhaustion or expiration of the relevant state remedies.


The issue before the Court on this appeal is solely that of the statute of limitations applicable to Manning’s Petition for Writ of Habeas Corpus in the District Court.  This Court must decide how to apply the statute of limitations to federal habeas relief, and whether, so applied, it bars Manning’s application.

It is therefore irrelevant for the Appellee State of California to argue the details of the crimes for which Manning was tried, nor to introduce the state court opinions, except to establish the dates of their issuance (which the parties have not disputed).  Because the lower court did not reach the merits of Manning’s claims in his Petition, it would be premature for the Court to consider them on this appeal.


The federal statute provides, among other things, that the limitations period will not begin to run until the removal of any impediment “created by State action in violation of the Constitution” against the petitioner’s ability to seek the federal court’s relief.  28 U.S.C. § 2244(d)(1)(B).  Because the Petition on its face and the proceedings in the court below raised potential constitutional issues, the Court should remand to the District Court for findings on these issues.

Manning noted in his Petition that, among other reasons for delay in his filing, the State of California impeded his ability to apply for federal relief when it locked down all white prisoners for repeated and significant periods. (XR 34.)[1]   The District Court had before it allegations that the State had acted adversely to Manning, solely because of his race. The record shows no sign, and California has made no argument, that Manning in any way brought the lock down upon himself or was otherwise individually at fault, for an external burden placed upon him.

State actions or classifications based on race trigger strict scrutiny under the Fourteenth Amendment.  City of Richmond v. J.A. Croson & Co., 488 U.S. 469 (1989); see also Adarand Constrs., Inc. v. Pena,  515 U.S. 200, 222 (1995) (“The Fourteenth Amendment strict scrutiny of all race-based action by state and local governments.”).   Strict scrutiny calls for the State to demonstrate a compelling state interest for the action or classification, and to show that it had narrowly tailored its method or manner of acting.  Adarand, 515 U.S. at 222.

The penological security requirements argued by California in its Brief, see Appellee Supp. Br. at 12, may well qualify under this analysis as a compelling state interest.  But those requirements must be shown factually and evaluated in the District Court before they can be evaluated on appeal.

Nor does a compelling state interest alone justify race conscious State action.  The State must also demonstrate that its actions in response to the compelling state interest were narrowly tailored.  515 U.S. at 222.  This California has not done, and should do before the District Court on remand.

The fact, that racial gangs of prisoners clash, does not of itself dictate the appropriate response.  California should show why white prisoners as a group were locked down, rather than another racial group.  Indeed, why must California treat prisoners by racial group at all, when it can lock down all prisoners at once? See Adarand, 515 U.S. at 237-38 (narrow tailoring requires “asking, for example, whether there was any consideration of the use of race-neutral means”).  Is it even feasible for the prison to determine individual wrongdoers rather than assess blanket group punishments? These are matters the District Court can and should explore on remand.

California’s argument that the lock downs were not motivated by race, rather they were motivated by the riots, does not foreclose the strict scrutiny.  Regardless of the State’s motivation, the responses chosen were racially focused and applied, so that California must still meet the Fourteenth Amendment test to pass constitutional muster.  “A racial classification, regardless of its purported motivation, is presumptively invalid and can be upheld only upon extraordinary justification.”  Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979).

California argues that mere loss of library access is not enough to impede Manning’s application.  It is not clear from the District Court record what the scope of each lock down was, and in what ways it impeded Manning.  While California has focused on library access alone, it is unclear whether Manning had access to writing materials, whether he could use the prison mail system, or what other restrictions might have impeded his pursuit of legal relief. The District Court can and should explore these factual questions on remand as well.

If the lock downs fail strict scrutiny, then California violated the Constitution.  Any impediment to Manning’s application as a result would have preserved his time to file under the federal statute.  Because these are significant questions raised and left unanswered by the proceedings below, the Court should reverse and remand for the District Court to address them.


California objects to Manning’s interpretation of the statute of limitations, claiming that he did not raise it in the court below.  (Appellee Supp. Br. at 17.)  The objection is somewhat disingenuous, given that it was California as respondent that raised the affirmative defense of statute of limitations to defeat Manning’s Petition.  But Manning did cite that he met all prerequisites under AEDPA for filing with the federal court, to include as his very first point the “exhaustion requirement of Title 28, § 2254 (b)(1)(A).”  (XR 2.)  The next cited point of AEDPA compliance  immediately following was timeliness under § 2244.  (XR 2.)  In asserting compliance with both § 2254 and § 2244, Manning necessarily brought to the District Court’s attention the interaction of the two relevant portions of AEDPA, which this argument presents.[2]

California also misunderstands Manning’s argument regarding the need to exhaust state remedies before allowing the limitations period to run on federal habeas relief.  California points to the language of 28 U.S.C. § 2244(d)(1), and ends the matter there, citing to Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842 (1984), for the proposition that “if the intent of Congress is clear, that is the end of the matter.”  (Appellee Supp. Br. at 19.)

The Supreme Court’s Chevron decision is the well-known standard for deciding issues of administrative regulatory interpretation, but it is of no help to this case.  Chevron addresses when and how to give deference to an agency administrative rule interpretation, when the statute enacted by Congress is ambiguous or silent.  No federal agency rules or regulations are at issue in this appeal.

The problem raised in this appeal is that the intent of Congress is not clear, precisely because the limitations provision cannot be read by itself, without reference to the surrounding statutes also governing federal habeas.  While California would look to § 2244(d)(1), and go no further, the Court must consider that provision alongside its contemporaneous provisions like § 2254(b)(1), which mandates exhaustion of state remedies.

Both § 2244(d)(1) and § 2254(b)(1) must be read in pari materia, to apply equally and simultaneously to a state prisoner’s application for federal habeas.  See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (statutes must be read as a coherent whole); Watt v. Alaska, 451 U.S. 259, 266-67 (1981) (same).  If they conflict, the Court must decide whether the more recent provision has repealed the prior provision, or if there is some way to read the two provisions so as to avoid a conflict.  Standard principles of statutory interpretation call for the Court to read the laws, if at all possible, to avoid the potential conflict.  “Repeals by implication are disfavored.”  Felker v. Turpin, 518 U.S. 651, 660 (1996); see Posadas v. National City Bank, 296 U.S. 497, 503 (1936) (rule applies where later version of same statute amends a prior version of statute at issue); St. Marten Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 788 (1981).

The interpretation that avoids conflict between these two sections of Title 28 is to determine that the state remedies must be exhausted or expire before beginning the one-year limitations period for federal habeas.  The alternative view would mean that Congress impliedly repealed the state exhaustion requirement, which runs contrary to the case law as well as the stated intent of the Congress to reduce the burden on the federal courts.  Under this alternative, the resulting truncation of the state law avenues for relief, and the acceleration of prisoner filings with the federal courts in order preemptively to preserve those prisoners’ applications, would unduly shift the burden of habeas review from the states to the federal courts.  Instead, the principles of comity and federalism call for the state courts to make a full review of all potential issues, and for the exhaustion of the procedures provided by any state for that review, before turning to the federal courts.  This should mean as well that the time, in which to go to the federal courts, should not begin to run until it is actually time to go to federal court.

California’s answer to Manning’s argument also raises constitutional concerns, which the Court should otherwise wish to avoid.  Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345-48 (1936).  In those states where the established procedures allow post-conviction review to extend more than one year beyond conclusion of direct appeal, the earlier imposition of the federal limitations period, as California argues, would in effect work a federal repeal of that state’s law.  This would result in an extension of federal power that would not be constitutional.  U.S. Const. amend. X; cf. Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); Samuels v. Mackell, 401 U.S. 66 (1971); Younger v. Harris, 401 U.S. 37 (1971).

The Court should therefore find that the federal limitations period does not begin to run for a prisoner, until he has exhausted all available avenues of relief within his State, or until his time for those state remedies has expired.  The Court can thereby avoid interpretations of federal law that create internal conflict or raise constitutional concerns, while preserving for federal courts the certainty and expedition of a one-year time period, once begun, within which the petitioner may seek federal relief.  Contrary to California’s assertion, see Appellee Supp. Br. at 19, there are indeed federal courts that have come to this conclusion. Manning has cited them in his Supplemental Brief, App. Supp. Br. at 21 (citing opinions of six federal courts), to no response from California.


The Court should reverse the dismissal of the Petition, and remand for the District Court to consider the merits of Manning’s application.

June 30, 2000

Respectfully submitted,
Theodore M. Cooperstein

1815 Pennsylvania Avenue, N.W.
Suite 501
Washington, D.C. 20006
(202) 331-7895

Counsel for Petitioner-Appellant
John Anthony Manning

By appointment of the Court


The District Court had jurisdiction of John Anthony Manning’s (“Manning’s”) petition for writ of habeas corpus under 28 U.S.C. § 2254.  The District Court entered its final judgment of dismissal on March 17, 1999.  (Excerpts of Record (“XR”) at 75).  Manning timely filed a Request for a Certificate of Appealability on April 7, 1999.  (XR 77, 85).  The District Court granted that request and entered a Notice of Appeal as of April 9, 1999, in its Certificate of Appealability dated April 26, 1999.  (XR 78).  This Court has jurisdiction of the appeal pursuant to 28 U.S.C. § 1291.


1. Did Manning timely file a Petition for Writ of Habeas Corpus with the District Court, after exhausting all available collateral avenues of post-conviction relief in the California State courts?

2. Must a prisoner’s time to seek post-conviction relief available under the applicable State Court system expire before the statute of limitations begins to run on federal habeas relief under the Antiterrorism and Effective Death Penalty Act (“AEDPA”)?


This case is a civil action seeking post-conviction relief in the form of a federal writ of habeas corpus for Manning, who is currently confined in the California Penitentiary system.  Manning filed his petition for federal writ of habeas corpus, which is presently the subject of this appeal, on November 19, 1997, in the United States District Court for the Eastern District of California.[3]  (XR 1).

In response to the Petition, the Respondent moved to dismiss the action as untimely filed under the statute of limitations. (XR 83). Manning opposed the motion to dismiss, asserting among other grounds equitable tolling of the limitations period during his pending State court post-conviction petitions and attendant appeals, as well as by reason of periods of prison lockdown and denial of law library access that otherwise prevented him from diligently pursuing his legal remedies.  (XR 44).

On February 9, 1999, the U.S. Magistrate Judge, to whom the case was referred, recommended the dismissal of Manning’s Petition on the grounds that the statute of limitations barred the District Court from considering Manning’s application.  (XR 61).  Manning filed his objections to the Magistrate Judge’s Findings and Recommendations on February 25, 1999.  (XR 68).

The District Court adopted the Findings and Recommendations of the Magistrate Judge on March 17, 1999, dismissing the Petition.  (XR 72-73).  Neither the Magistrate Judge nor the District Court reached the merits of the claims in Manning’s Petition.  Manning sought and received from the District Court a Certificate of Appealability, which the District Court signed on April 26, 1999.  (XR 77-78).

Manning submitted an Appellant’s Brief to this Court on July 24, 1999.  The State of California responded with its Appellee’s Brief on September 21, 1999.   Manning served his Reply Brief on September 29, 1999.

Following the review of a screening panel of this Court, the Court determined that appointment of pro bono appellate counsel was warranted to represent Manning for purposes of this appeal.  The Court’s Order appointing the undersigned appellate pro bono counsel issued on February 25, 2000.


A California Superior Court entered judgment of conviction against Manning on February 17, 1995.  The California Court of Appeal, Third Appellate District affirmed the conviction in December 1995.  The Supreme Court of the State of California denied Manning’s application for discretionary, direct review on March 21, 1996.  Manning then had ninety days, or until June 19, 1996, under the appropriate federal statute and rule, 28 U.S.C.§ 2101(d); Supreme Court Rule 13, to file a petition for certiorari with the United States Supreme Court.

Manning believed he was seeking certiorari in the U.S. Supreme Court when he filed a petition for certiorari with the California Court of Appeal on August 2,1996. (XR 44).  He was mistaken, and that California appellate court instead accepted the petition and deemed it an original petition for writ of habeas corpus as post-conviction relief from the State court.  (XR 55).  At the same time, on August 8, 1996, the California Court of Appeal denied the petition.

During the one year period immediately following the expiration of Manning’s time to petition the U.S. Supreme Court for certiorari, California prison authorities on repeated occasions “locked down” Manning, along with all other white inmates in his prison, denying them, among other things, law library access.  The prison authorities purportedly took these steps with the race of the affected prisoners as conscious motivation for their action.  These periods of lockdown occurred during the following periods, with accompanying duration in days in parentheses: August 12-20, 1996 (8 days); October 8-10, 1996 (10 days); February 25-March 5, 1997 (7 days); May 9-28, 1997 (19 days); June 1-24, 1997 (23 days); and July 24-August 26, 1997 (33 days).  (XR 34, 35-41).  The aggregate total number of days of lockdown and consequent denial of law library access was 100 days.  During none of these lockdown days could Manning prepare his petitions for State nor federal relief.  (XR 34).

Manning first filed a petition, deemed to be one for writ of habeas corpus, with the California Court of Appeal for the Third District on August 2, 1996.  Six days later, on August 8, 1996, the California Court of Appeal denied the petition.  (XR 52-53, 55).

Manning filed a second petition for writ of habeas corpus with the California Court of Appeal on September 16, 1997.  (XR 19).  The Court of Appeal again denied the petition two days later, on September 18, 1997.  (XR 18).

Within the next 20 days, Manning next timely sought discretionary review by the California Supreme Court, filing his request on October 8, 1997.  (XR 63).  The California Supreme Court denied Manning’s request 35 days later, on November 12, 1997.  (XR 63).

Seven days following the California Supreme Court’s ruling, Manning filed the present Petition for federal habeas corpus by mailing it to the District Court on November 19, 1997.  (XR 1).


1. Factual circumstances of this case bring Manning’s filing of his federal habeas petition within the limitations period, if calculated from the expiration of his time to petition for certiorari on June 19, 1996.  Provisions of the applicable federal statute tolled the limitations period during the pendency of Manning’s applications for State relief, as well as during the periods when State action unconstitutionally prevented him from pursuing his applications.  This Court’s precedent of Nino v. Galaza further excludes from the limitations period the intervals between court filings when Manning was properly pursuing his State remedies.  Principles of equitable tolling apply to the federal habeas statute, and they provide further basis to exempt from the limitations calculation those periods in which the State kept Manning in lockdown because of his race.

2. The federal limitations period of one year is properly read to commence only upon exhaustion of all available State remedies, including State post-conviction collateral relief.  To interpret the statute otherwise would create inconsistency and tension between the limitations provision and the statute’s requirement that an applicant for federal habeas relief exhaust all State remedies.   Further constitutional considerations of comity and federalism argue for this interpretation of the statute.



In response to Manning’s Petition below, the Attorney General of California moved to dismiss on statute of limitations grounds.  (XR 83).  The Magistrate Judge recommended dismissal (XR 61), and the District Court adopted that Recommendation and granted the motion.  (XR 72).

The Court reviews de novo the dismissal of a federal habeas corpus petition.  Dictado v. Ducharme, 189 F.3d 889, 891 (9th Cir. 1999).  This Court reviews a dismissal based on statutes of limitations de novo.  Williamson v. General Dynamics Corp., -- F.3d --, 2000 WL 369682 (9th Cir. Apr. 12, 2000); Ellis v. City of San Diego, 176 F.3d 1183, 1188 (9th Cir. 1999).  The Court must “accept all factual allegations of the complaint as true and draw all inferences in favor of the nonmoving party,” namely Manning.  LSO, Ltd. v. Stroh, 205 F.3d 1146, 1149 n.2 (9th Cir. 2000); see Conley v. Gibson, 355 U.S. 41 (1957); Tworivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999).


Dismissal on statute of limitations grounds can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) “only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.”  Vaughn v. Grijalva, 927 F.2d 476, 478 (9th Cir. 1991); see also Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir. 1980); Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980).  On the record below, Manning in his Petition raised provable issues of equitable tolling.

Manning’s time to file a petition for certiorari with the United States Supreme Court, following his direct appeal to the Supreme Court of California, ran out on June 19, 1996.  Respondent in the District Court below, and in this Court, asserted that this was the starting date of the limitations period for Manning’s federal habeas petition. (Motion to Dismiss at 2-3; Appellee’s Brief at 10).  To the extent that this Court might view the appropriate starting time for the limitations period to be the exhaustion only of direct appeal in the State courts and the U.S. Supreme Court, and not the exhaustion of all available state remedies to include collateral post-conviction remedies, but see Part II, infra, this would be the correct date.  Cf. Calderon v. U.S. District Ct. for the Cent. Dist. of Calif. (Beeler), 128 F.2d 1283, 1286 (9th Cir. 1997) (interpreting denial of petition for certiorari as concluding direct review), cert. denied, 522 U.S. 1099 (1998), overruled in unrelated part, 163 F.3d 530 (9th Cir. 1998).  Petitioner respectfully suggests, as was noted in his Objections to the Findings and Recommendations below (XR 70), that the District Court’s choice of a different start date was in error.

By this reasoning, Manning filed his petition for federal habeas on November 12, 1997, 150 days after the June 19, 1997, anniversary of the expiration of his time to complete direct review by certiorari in the U.S. Supreme Court.  A combination of statutory exception, this Court’s precedent, and equitable tolling provides the extension of time for 163 days, more than enough to make timely Manning’s filing in the District Court 150 days after the anniversary.

Statutory exception (43 days).  The federal habeas statute defining the limitations period provides that:

The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(2).  This provision literally removes from the appropriate limitations period those periods of time while Manning’s petitions for State habeas were pending before the California courts:  August 2-8, 1996 (six days); September 16-18, 1997 (two days); and October 8 -- November 12, 1997 (35 days).  The minimum total of days attributable to applications pending before the State courts is therefore 43 days.

Second, the federal statute provides an alternate, and later, date for commencing the one-year limitations period:  Conclusion of each period of allegedly unconstitutional lockdown.  Manning’s petition on its face suggests that the successive lockdowns of all white inmates, precisely by reason of their race, is a constitutionally suspect action by the State that created an impediment to Manning’s pursuit of his remedies in State and federal courts.  (XR 34, 35-41). U.S. Const. amend. XIV.  The existence of an “impediment to filing an application created by State action in violation of the Constitution or laws of the United States” delays the running of the limitations period, until the impediment “is removed, if the applicant was prevented from filing by such State action.”  28 U.S.C. § 2244(d)(1)(B). Neither the Magistrate Judge in his Findings and Recommendations, nor the District Court in its adoption of those Findings and Recommendations, addressed or considered the Fourteenth Amendment constitutional implications of the race-conscious motivations of those lockdowns.  Following reversal and remand, it is possible that the District Court may find that the race-based lockdowns in the prison were impediments to Manning’s filing created by unconstitutional State action.  The limitations period could in that case begin to run at the conclusion of the latest period of unconstitutional impediment, or as late as August 27, 1997, the first day after the last period of lockdown Manning alleged in his Petition.  (XR 35).  Manning’s November 19, 1997, filing of the Petition would thereby have been timely.

This Court’s precedent (20 days).  This Court’s ruling in Nino v. Galaza, 183 F.3d 1003 (9th Cir. 1999), cert. denied, -- S. Ct. --, 2000 WL 507534 (May 1, 2000), removes from the limitations period the time between successive stages of Manning’s pursuit of habeas relief in the State courts.  At a minimum, the period between the California Court of Appeal’s denial of the petition, on September 18, 1997, and the timely filing with the California Supreme Court seeking review on October 8, 1997, or 20 days, is outside the limitations period.  See Nino v. Galaza, 183 F.3d at 1006 (“ the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner’s final collateral challenge”).  Other circuits interpret the statute’s tolling provision to the same effect.  Bennett v. Artuz, 199 F.3d 116, 119-120 (2d Cir. 1999), cert. granted, -- S. Ct. --, 2000 WL 122154 (No. 99-1238, April 17, 2000); Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999), cert. denied, 120 S. Ct. 1262 (2000); Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir. 1999), cert. denied, 120 S. Ct. 811 (2000); Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999).

Arguably, the tolling effect of Nino v. Galaza encompasses as well the time from Manning’s filing of the first petition with the California Court of Appeal, in 1996, until the final denial of review in 1997 by the California Supreme Court. The Court’s opinion does not distinguish between multiple petitions in the State courts so long as they are timely and permitted under the State law.  Nino v. Galaza, 183 F.3d at 1007 (“each state is entitled to formulate its own system of post-conviction relief, and ought to be able to administer that system free of federal interference.”).  California law permits the applicant to file new petitions in State courts as an alternative to review of denial of an earlier petition.  See Calif. Const. art. VI, § 10; Nino v. Galaza, 183 F.3d at 1006 & nn.2, 3; In re Reed, 33 Cal.3d 914, 191 Cal. Rptr. 658, 663 P.2d 216, 217 n.2 (1983); In re Michael E., 15 Cal. 3d 183, 193 n. 15, 123 Cal. Rptr. 103, 538 P.2d 231, 237 n.15 (1975).

Equitable tolling (100 days).  The principles of equitable tolling apply presumptively to all federal statutes and causes of action.  Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990); Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946) (equitable tolling “is read into every federal statute of limitation”); Calderon (Beeler), 128 F.3d at 1289 (“Statutes of limitations are presumptively subject to equitable tolling”), reaffirmed in relevant part, 163 F.3d at 535 ((9th Cir. 1998) (“this limitations period can be equitably tolled”); United States v. Van Poyck, 980 F. Supp. 1108, 1110 (C.D. Cal. 1997).  As noted above, each of the lockdowns that barred Manning from library access could be a constitutional violation falling under the statute’ s tolling provisions in 28 U.S.C. § 2244(d)(1)(B).  Yet if the District Court on remand should find that the lockdowns and their racial motivation did not reach the level of a constitutional violation, they may yet suffice to equitably toll the limitations period on Manning’s application.

Care should be taken to note that the “equitable tolling” encompasses two separate yet related concepts.  The first is one of equitable estoppel, the finding of wrong or inequitable conduct on the part of an adverse party (in this case, the State of California), which justifies or explains the failure of the applicant to have met the limitations deadline, and it permits the Court to deny the adverse party the defense of limitations.  The second is more precisely identified as equitable tolling, and reflects the occurrence of events or circumstances, independent of the parties’ actions, which can explain or justify the failure to meet the deadline.  The two concepts share in common, however, the fact that they are outside the control of the affected party (Manning) and are not attributable to his conscious choice or waiver in the course of pursuing his remedies.  See, e.g., Harris v. Hutchinson, __ F.3d __, 2000 WL 345398 at *5 (4th Cir. April 4, 2000) (noting “two generally distinct kinds of situations[:]  In the first, plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant.  In the second, extraordinary circumstances beyond plaintiffs’ control made it impossible to file the claims on time.”)  (citing Alvarez-Machain v. United States, 107 F.3d 696 (9th Cir. 1996), cert. denied sub nom. Berellez v. Alvarez-Machain, 522 U.S. 814 (1997)).

Manning has invoked both aspects of equitable tolling with respect to the lockdowns.  The Petition clearly implies, and the District Court on remand may yet find, that the State was improperly motivated by race in the broad application of the lockdowns to all white inmates without regard to individual culpability.  This can constitute wrongful behavior by the State sufficient to invoke the estoppel component of equitable tolling.

Yet regardless of the State’s motivation in depriving Manning of library access through the lockdowns, it is undisputed that each period of lockdown was not attributable to Manning or his own conduct.  It is in that sense an “extraordinary circumstance,” defined by courts to mean a “turn of events over which [petitioner] had no control.”  Beeler, 128 F.3d at 1289; see also Harris v. Hutchinson, 2000 WL 345398 at *5 (tolling applies where “due to circumstances external to the party’s own conduct – it would be unconscionable to enforce the limitation period against the party and gross injustice would result”); Van Poyck, 980 F. Supp. at 1110-1111 (tolling proper “when external forces, rather than plaintiff’s lack of diligence, account for the failure”); cf. Coleman v. Thompson, 501 U.S. 722, 753 (1991) (in cases of procedural default, “‘cause’ under the cause and prejudice test must be something external to the petitioner, something that cannot be fairly attributed to him.”); accord, Edwards v. Carpenter, -- S. Ct. --, 2000 WL 459283 at *3 (Apr. 25, 2000).[4]

For each of the foregoing reasons, Manning’s Petition should be deemed timely filed in the District Court.  The cumulative impact of the statutory, case law and equitable tolling provisions (assuming, as stated above, that completion of certiorari on direct review, and not the latest period of unconstitutional impediment per 28 U.S.C. § 2244(d)(1)(B), nor the expiration of State law post-conviction remedies, is the appropriate starting point for running the limitations period) can be summarized as follows:

Date Event Period Tolled Days Remaining
June 19, 1996 Expiration of time for certiorari ---- 365 days
Aug. 2-8, 1996 Habeas petition (Cal. App. Ct. 3d Dist.) 6 days 321 days
Aug. 12-20, 1996 Lockdown 8 days 317 days
Oct. 8-18, 1996 Lockdown 10 days 268 days

Feb. 25-March 5, 1997

Lockdown 7 days 138 days
May 9-28, 1997 Lockdown 19 days 73 days
June 1-24, 1997 Lockdown 23 days 69 days
July 24-Aug. 26, 1997 Lockdown 33 days 39 days
Sept.16–12 Nov., 1997

State habeas, including Galaza period between courts

57 days 18 days

When Manning filed his Petition in the District Court seven days after the November 12, 1997, ruling of the California Supreme Court, by mailing it on November 19, 1997, his filing was therefore timely and within the statutory limitations period.


Notwithstanding the timeliness of Manning’s application for federal habeas corpus as demonstrated above, under the limitations period asserted by Respondent, principles of statutory interpretation require that the Court deem the one-year limitations period to commence only after an applicant has exhausted available State remedies, or his time in which to exhaust those remedies has expired.  The federal habeas statute, read as a whole, would otherwise be inconsistent and in conflict with itself.

Along with the statute’s limitations provisions, at 28 U.S.C. § 2244(d), the federal habeas statute also mandates exhaustion of state remedies.  28 U.S.C. § 2254 provides

(b)(1)  An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that –

(A) the applicant has exhausted the remedies available in the courts of the State….

The statute further states that

An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.


28 U.S.C. § 2254(b)(1)(A), (c) (emphasis added).  The Supreme Court has found that this statute codifies the preexisting body of case law embodying the exhaustion of state remedies doctrine.  Slack v. McDaniel, -- S. Ct. --, 2000 WL 478879 at * 8 (Apr. 26, 2000); Williams v. Taylor, -- S. Ct. --, 2000 WL 385364 at *10-11 (Apr. 18, 2000); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“the exhaustion doctrine … is now codified at 28 U.S.C. § 2254(b)(1)”); Stewart v. Martinez-Villareal, 523 U.S. 627, 644 (1998).

Federal courts accordingly must dismiss petitions for habeas corpus from State prisoners that present unexhausted claims, which have not been brought before an appropriate State court for review.  This rule has been applied equally to the occurrence of “mixed claims” petitions, which present both claims that have exhausted their State review and claims that have not previously been presented to State courts.  Rose v. Lundy, 455 U.S. 509 (1982).

The purpose and design of the federal habeas statute is to encourage, if not mandate, that petitioners pass all conceivable constitutional claims through the State process of review prior to entering federal court.  Williams v. Taylor, 2000 WL at *11 (“AEDPA’s purpose [is] to further the principles of comity, finality, and federalism.  There is no doubt Congress intended AEDPA to advance these doctrines.”); Weekeley v. Moore, 204 F.3d 1083, 1086 (11th Cir. 2000) (“AEDPA demonstrates a concern for federal-state comity and deference to state determinations of constitutional claims”).  “Principles of exhaustion are premised upon a recognition by Congress and the [Supreme] Court that state judiciaries have the duty and competence to vindicate rights secured by the Constitution in state criminal proceedings.”  Williams v. Taylor, 2000 WL 385364 at *11.  So long as the State courts remain open and available to the petitioner, he is required to give the State courts the “first look” at his claims.  Only once he has presented his claims to a State court, or alternatively the expiration of State limitations periods forecloses that presentation, can those claims be deemed exhausted and therefore ripe for federal review.  But “the complete exhaustion rule is not to trap the unwary pro se prisoner.”  Slack v. McDaniel, 2000 WL 478879 at *10 (quoting Rose v. Lundy, 455 U.S. at 520).

Claims presented to the State courts on direct review and appeal are exhausted on conclusion of that review.  But claims that were unknown, unavailable or undiscovered prior to the conclusion of direct review are not exhausted unless and until they are presented to a State court on collateral, post-conviction review.  Manning presented just such a claim in the present Petition before the Court, when he claimed ineffective assistance of appellate counsel during the direct review of his conviction in the California appellate courts.  (XR 11-12).

Depending upon the procedures of a particular State, it may well be possible for a State petitioner to raise unexhausted claims in the State courts more than one year after conclusion of direct review on appeal.  “The exhaustion doctrine, in other words, turns on an inquiry into what procedures are ‘available’ under state law.”  O’Sullivan v. Boerckel, 526 U.S. at 847.  Unless the petitioner is allowed time, under the federal statute, to pursue those unexhausted claims in the State courts, he will be forced to present them in a mixed petition to the federal court, and face dismissal of the entire petition and its claims.  Alternatively, he may have to waive them and proceed only with his exhausted claims in the federal proceeding.

To interpret the limitations provision of 28 U.S.C. § 2244 as running from the conclusion solely of direct review, thereby creates a conflict with the mandate of 28 U.S.C. § 2254 that all claims be exhausted by State review before presentation in a federal habeas petition.  The Court can and should avoid this problem by instead reading the limitations period to run from the conclusion or expiration of all post-conviction remedies available in the State court. The unacceptable alternative would be to consider the 1996 Act to have repealed in large part the exhaustion requirement.  See Felker v. Turpin, 518 U.S. 651, 660 (1996) (“Repeals by implication are disfavored.”)

Some District Courts have accordingly interpreted the limitations on federal habeas to begin only after both direct review and collateral, post-conviction remedies have ended or expired.  E.g., Babcock v. Duncan, 1997 WL 724450 at *2 (N.D. Cal. Nov. 12, 1997) (“statute of limitations begins to run as soon as direct review is completed and state post-conviction review is exhausted.”); Ashmus v. Calderon, 977 F. Supp. 987, 992 (N.D. Cal. 1997); Martin v. Jones, 969 F. Supp. 1058, 1061 (M.D. Tenn. 1997) (“the one year period of limitations does not begin to run until after both direct review and post-conviction review have been exhausted.”); Valentine v. Senkowski, 966 F. Supp. 239, 241 (S.D.N.Y. 1997) (“It is clear both from the plain meaning of the statute and the legislative history of the Act which imposed the new standard… that the 1-year period of limitations does not begin to run until after direct review has been completed and state post-conviction review has been exhausted.”); Parisi v. Cooper, 961 F. Supp. 1247 (N.D. Ill. 1997); see also Bennett v. Artuz, 199 F.3d at 123 (distinguishing Valentine v. Senkowski, with respect to whether a state court post-conviction relief application is “properly filed” and adequate for these tolling purposes).

This interpretation comports with the stated views of this Court regarding exhaustion of state remedies.  In Larche v. Simons, 53 F.3d 1068 (9th Cir. 1995), the Court held that just as it “is undisputed that [petitioner] must exhaust all available state remedies before turning to the federal courts for habeas review,” he must exhaust the “means of [state] habeas proceedings in order to exhaust his claims for federal habeas corpus purposes.”  53 F.3d at 1071.  The “overriding principle requiring exhaustion of state remedies is comity,”  which requires that the appropriate State courts “be given the opportunity to correct any constitutional errors …. Before turning to the federal courts for habeas review.”  Id. at 1071, 1072.  “Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, he state courts should have the first opportunity to review this claim and provide any necessary relief.”  O’Sullivan v. Boerckel, 526 U.S. at 844.   See Nino v. Galaza, 183 F.3d at 1007 (tolling “enforces comity and respect between our respective judicial systems”).

The alternative interpretation, which the Respondent advocates, would undermine the purposes of the Act and lead to fragmented, premature and protective, or incomplete federal habeas petitions.  Prisoners would file early in the federal court to preserve claims that might not yet have been exhausted in the State courts.  Nino v. Galaza, 183 F.3d at 1005 (“A contrary construction would be antithetical to the entire theory of state remedy exhaustion and would lead inevitably to the filing of protective federal petitions.”); Martin v. Jones, 969 F. Supp. at 1062-63 (tolling “will ensure that petitions are brought in their entirety at one time”).  “Mixed claim” petitions could face dismissal in their entirety or waiver of the unexhausted claims.  Rose v. Lundy, 455 U.S. at 520 (noting “risk [of] forfeiting consideration of unexhausted claims in federal court”); Barnett v. Lemaster, 167 F.3d at 1323 (narrow definition “could result in state prisoners forfeiting their right to federal habeas review while attempting to fully exhaust state court remedies”); Ashmus, 977 F. Supp. at 992-93.

Given that the Act was in part motivated by a desire “to enhance the States’ capacities to control their own adjudications,” Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), while consolidating and expediting federal review, I t makes more sense to interpret the federal limitations period to run only after the conclusion of the entire State process.  States retain control over their post-conviction remedies, including how often, when and how an applicant might avail himself of those processes.  Slack v. McDaniel, 2000 WL 478879 at *11 (“the State remains free to impose proper procedural bars to restrict repeated returns to State court for postconviction proceedings”); Dictado, 189 F.3d at 892 (‘properly filed state application’ means “an application submitted in compliance with the procedural laws of the state in which the application was filed”). But once those State procedures have expired or been exhausted, the federal window remains open for exactly one year.  Cf. Jennison v. Goldsmith, 940 F.2d 1308, 1311 n.4 (9th Cir. 1991) (“The state may prescribe what remedies are available to a prisoner alleging incarceration in violation of federal law, … but federal law requires that any remedies made available by the state must be exhausted”).


The Court should reverse the dismissal of the Petition, and remand for the District Court to consider the merits of Manning’s application.

May 5, 2000

Respectfully submitted,
Theodore M. Cooperstein

1815 Pennsylvania Avenue, N.W.
Suite 501
Washington, D.C.  20006
(202) 331-7895

Counsel for Petitioner-Appellant
John Anthony Manning

By appointment of the Court


[1] California wrongly complains that Manning did not raise the issue of unconstitutionality of the lock downs in the court below.  (Appellee Supp. Br. at 10.)  Manning noted that “the AEDPA ‘exception’ clause-§ 2244(d)(1)(B), requires (as Respondent [California] noted), impediments of ‘Constitutional’ parameters before tolling relief can be obtained.”  (XR 49.)

[2] One must also remember that the filings below were those of a pro se prisoner without legal training, who was entitled to expect the benefit of any doubt, particularly on a motion to dismiss his pleading.

[3]   In calculating dates of filings by Manning, this brief follows the rule set by the Supreme Court in Houston v. Lack, 487 U.S. 266, 273 (1988), deeming prisoner submissions as filed upon delivery to prison officials for mailing.  The Magistrate Judge, and the District Court by adoption, applied this same “mailbox rule” in evaluating Manning’s petition.  (XR 63 n.1).

[4] Although Appellee cites Van Poyck as authority to deny Manning the benefit of equitable tolling (Appellee’s Brief at 16), the case is distinguishable on its facts.  The Van Poyck court recognized the availability of equitable tolling but declined to apply it to that petitioner because he had not specifically argued “that the circumstances that purportedly support his Motion were caused by events over which he had no control.”  980 F. Supp. at 1111.  Nor did the court rule that prison lockdowns could never serve as cause for tolling, but rather that the instances he did cite, “a few security lockdowns … for an unspecified number of days,” id., at most constituted “two weeks out of the last four months,”  leaving “fifty other weeks to prepare.”  Manning, in contrast, alleges, 100 days of lockdown, 85 of those concentrated in the last months of his limitations period, and all of them apparently motivated solely by his race and not by his own wrongdoing or misbehavior.  (XR 35).