Brambles v. Duncan

No. 01-55716 (6-17-05). The 9th applies Pliler v. Ford, 124 S. Ct 2441 (2004), to this case and dismisses the petition as time barred. Petitioner was convicted in state court. He eventually filed a federal habeas, which had one exhausted claim and two unexhausted claims. The district court informed the petitioner he could either proceed with the exhausted claim, and dismiss the two unexhausted claims, or dismiss the petition and go back and exhaust the two other claims. The petitioner chose to dismiss and exhaust. When he got back to federal court, after exhausting, his petition was dismissed as time barred. Whoa, said the 9th, he wasn't informed of the consequences, and so he should have a chance to litigate in federal court. The Supremes, in a similar case (Pliler) had held that a district court didn't have to inform the petitioner of the consequences or risk. The district court could present with options; the court just couldn't mislead. The reasoning was the need to keep the court impartial. Applying Pliler here, the 9th found that the district court didn't mislead the petitioner in options, and there was no other basis for equitable tolling, and so the petitioner was out of luck.