Fue v Biter, No. 12-55307 [November 17, 2016]

Fue v. Biter

The en banc court, in an opinion written by Bybee, who also wrote the dissent in the panel opinion, found that “Fue’s lack of knowledge of the denial [of his state court petition], if proven, would entitle him to equitable tolling” and reversed and remanded to the district court. The Court found that Fue’s 14 month wait to contact the California court about the status of his case was “’not an ununsually long time to wait for a court’s decision,’ given his reasonable expectation of being notified by the California Supreme Court, based on application of that court’s rules, and “actually shows his diligence, not a lack thereof.” The Court disagreed with the State's argument that he failed to establish his diligence by only contacting the court once regarding the status of his case and did not show a continued contact with the court. The Court further found that “[t]o the extent that we have required that petitioners must demonstrate that it was ‘impossible’ to file a timely petition, such a requirement is inconsistent with Holland’s requirement that a habeas petitioner demonstrate only ‘”(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way’ and prevented timely filing.’” Holland, 560 U.S. at 649 (citation omitted).” Therefore, the states argument that he could filed a petition, which was true if he omitted his non-exhausted claims only, did not preclude a finding of equitable tolling.