Richard Herman FORD, Petitioner-Appellee, v. Cheryl PLILER, Warden, Respondent-Appellant, 590 F.3d 782

Opinion by Judge CLIFTON; Partial Concurrence and Partial Dissent by Judge BERZON. CLIFTON, Circuit Judge: Petitioner Richard Herman Ford is currently a prisoner in state custody. He has challenged his confinement by filing two habeas corpus petitions in federal district court. Those petitions were originally dismissed by the district court as untimely based on the one-year federal statute of limitations under 28 U.S.C. § 2244(d)(1).

This court reversed the dismissal, in part, in a decision that held that district courts must advise petitioners regarding certain aspects of dealing with the statute of limitations before dismissing habeas petitions. Ford v. Hubbard, 330 F.3d 1086, 1099 (9th Cir.2003). The Supreme Court disagreed with and vacated our decision, holding that the advisements were not required. Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004). The Court remanded the ease for further proceedings, in light of this court’s “concern that[Ford] had been affirmatively misled.” Id. at 234, 124 S.Ct. 2441.

On remand, the district court determined that it had affirmatively misled Ford and thus the limitations period should be equitably tolled. The state successfully sought leave to appeal that determination, and we reverse it as inconsistent with the decision of the Supreme Court. Because Ford has not established that the limitations period should be equitably tolled, his federal habeas petitions must be dismissed as untimely. I. Background On April 19, 1997, Ford signed and delivered to prison authorities two pro se federal habeas corpus petitions.

The first petition related to Ford’s California state court convictions for, among other things, conspiring to murder John Loguercio and attempting to murder Loguercio’s wife. The second related to his convictions for first-degree murder and conspiracy to commit the murder of Thomas Weed. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), there is a “1-year period of limitation” for “application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1).

Because Ford’s convictions in both cases became final prior to the enactment of AEDPA, his one-year period for filing a habeas petition in federal court began on AEDPA’s effective date of April 24, 1996. Ford, 330 F.3d at 1097; see Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.2001). Ford filed his petitions on April 19, 1997, making both petitions timely, but with only five days to spare. Pliler, 542 U.S. at 228, 124 S.Ct. 2441. Although some of the claims in each of Ford’s petitions had previously been raised in state court, other claims in each petition had not been so exhausted.

Recognizing that the inclusion of unexhausted claims prevented the district court from entertaining his petitions in their current state, see Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), Ford filed at the same time motions to stay proceedings on his petitions. He hoped that by doing so he could return to state court to exhaust his unexhausted claims and then refile in federal court and have all of his claims heard on the merits. The district court did not grant those motions to stay.

The magistrate judge assigned to the case explained that the court only had power to stay proceedings for habeas petitions containing exclusively exhausted claims. He asked Ford to select a course of action from among three alternatives. Those options were: (1) to dismiss his petitions without prejudice and then, after exhausting in state court the previously unexhausted claims, to refile in federal court; (2) to dismiss the unexhausted claims and present the federal court with only his exhausted claims; or (3) to demonstrate that all of his claims had already been exhausted in state court.

The magistrate judge also told Ford that if he failed to choose one of these options, his petitions would be dismissed without prejudice. Ford chose to dismiss the Loguercio petition without prejudice. He failed to respond with respect to the Weed petition. As a result, the district court dismissed both petitions without prejudice. Shortly afterwards, seeking to exhaust all his claims, Ford filed habeas corpus petitions for both cases in the California Supreme Court. Each petition was subsequently denied. Ford then refiled both of his federal habeas petitions on April 1, 1998.

By that time, however, the one-year limitations period for filing a habeas petition in federal court had long since run. Indeed, it had already expired by the time the district court identified for Ford the three options explained above. Ford’s petitions were thus untimely, and the district court dismissed them with prejudice. Ford appealed. As indicated above and as will be discussed more fully below, this court affirmed in part, vacated in part, and remanded with instructions, with one judge dissenting.

The Supreme Court disagreed with our reasoning, however, vacated our decision, and remanded for farther proceedings on the question of whether Ford had been “affirmatively misled” by the district court. We, in turn, remanded to the district court to conduct such further proceedings.

Because of another issue previously raised by Ford but not reached by us on the first appeal, we also asked the district court to determine “whether [Fordj’s attorney failed or refused to provide [him] with parts of his legal files ... and whether the attorney’s conduct constitutes an ‘extraordinary circumstance’ that would warrant equitable tolling.” In the district court, the case was assigned to the same magistrate judge who had been responsible for the case previously and who had identified the three options for Ford.

In his Report and Recommendation, that magistrate judge found that Ford had in fact been affirmatively misled.

The Report discussed the events surrounding Ford’s initial filings and the dismissal of those petitions “without prejudice” and noted that Ford, by his filing of the motions to stay, “made it clear that he sought to preserve his ability to have all of his claims considered on the merits.” It concluded that the court had not at that time responded properly: In the context created by petitioner’s requests to stay his first petitions, the Magistrate Judge’s denial of the stays, citing the Bose requirement that the court dismiss “mixed” petitions but not mentioning the proper method for accomplishing a stay-and-abeyance, contributed to petitioner’s mistaken belief that the court’s option of dismissing his petitions without prejudice would accomplish what he was requesting.

Notwithstanding the Supreme Court’s subsequent holding that district courts are not required to volunteer stay-and-abeyance advice, in the circumstances of the instant case, petitioner was affirmatively misled because the court’s omission of an explanation of the stay-and-abeyance procedure came in response to petitioner’s requests to stay his petitions.

The Report also noted that the court’s previous order “made no mention of the AEDPA statute of limitations as one of the factors petitioner should consider in choosing which option to follow.” In particular, the court’s order at the time “did not inform petitioner that the AEDPA statute of limitations would apply to his second federal petitions, further cementing petitioner’s mistaken belief that dismissal without prejudice was the court’s suggested method of permitting him to both exhaust his unexhausted claims, and to comply with, or more specifically, to toll, AEDPA’s statute of limitations.” The Report concluded: By failing to specifically address this concern, and simply proceeding to issue [a Report and Recommendation] dismissing without prejudice (even though this dismissal would permanently bar petitioner from having his exhausted claims considered on their merits in federal court, an effect contrary to petitioner’s stated desire), it affirmatively (though unintentionally) misled petitioner.

Since Ford had reasonably relied, to his detriment, on the court’s affirmatively misleading instructions, the Report recommended that the AEDPA one-year limitations period should be equitably tolled and that Ford should be permitted to pursue the exhausted claims in his petitions. In addition, per our instructions, the magistrate judge discussed Ford’s legal file and whether this might also provide Ford a basis for equitable tolling.

The magistrate judge determined that Ford was not entitled to equitable tolling on that basis because the record revealed that Ford was aware of the factual basis of his claims well before he obtained his legal materials. As a result, “even assuming, arguendo, that state appellate counsel’s conduct in failing to provide[Ford] with [his complete file] was egregious,” the Report found no basis on which to find that the attorney’s conduct had made it impossible for Ford to file a timely federal habeas petition. The district court concurred and adopted the magistrate judge’s conclusions.

The state sought permission to take an immediate appeal, and the district court certified the matter for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). This court granted permission to appeal. II. Discussion Ford contends that the limitations period for filing his habeas petitions should be tolled for two separate reasons: because he was affirmatively misled by the district court and because he could not obtain his legal file and as a result was unable to file his petitions on a timely basis. Both issues are now before us, and we address each in turn.

Whether the statute of limitations should be equitably tolled is a question we review de novo. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.2009). A. Ford was not affirmatively misled. Our decision on the primary issue in this case is controlled by the Supreme Court’s opinion in this same case. The district court gave Ford accurate instruction before dismissing his mixed habeas petitions without prejudice. Pliler does not allow us to require anything more.

The Court made clear that to prevail Ford had to demonstrate that he “had been affirmatively misled quite apart from the District Court’s failure to give the two warnings” required in this court’s previous decision. Pliler, 542 U.S. at 234, 124 S.Ct. 2441. The basis for the district court’s conclusion that Ford was “affirmatively misled” is not, in substance, different from the basis of our prior decision, which was rejected by the Supreme Court.

The two warnings referenced by the Supreme Court were described in our first decision in this case, when we held that the district court erred by failing to inform Ford (1) that it could consider his stay motions only if he opted to amend the petitions and dismiss the then-unexhausted claims, and (2) that his federal claims would be time-barred, absent cause for equitable tolling, upon his return to federal court if he opted to dismiss the petitions “without prejudice” and return to state court to exhaust all of his claims. Ford, 330 F.3d at 1093.

More specifically, we first determined that “the district court was obligated to inform [Ford] of his options with respect to his mixed habeas petitions,” ie., how to correctly acquire a stay, id. at 1099, reasoning that by not doing so the court “deprived Ford of a fair and informed opportunity to have his stay motions heard,” id. at 1100. Second, we held that “[t]he district court further erred when it failed to inform Ford that ... he would be time-barred under AEDPA ... if he either failed to amend his petitions or chose the option of dismissing them.... ” Id.

We noted that the court “definitively ... misled him by informing him that if he opted to dismiss the petitions ..., the dismissal would be without 'prejudice,” and explained that the district court should have told Ford that because AEDPA’s statute of limitations had expired, “the dismissal, although ostensibly without prejudice, would actually result in a dismissal with prejudice unless he could establish that ... he was entitled to equitable tolling.” Id. at 1100-01.

We concluded by stating that the district court misled Ford, depriving him of the opportunity to make a meaningful choice, and held that this amounted to prejudicial error. Id. at 1101-02. In sum, we required district courts to give two specific warnings before dismissing habeas petitions such as Ford’s. The Supreme Court reversed, holding “that federal district judges are not required to give pro se litigants these two warnings.” Pliler, 542 U.S. at 231, 124 S.Ct. 2441.

The Court reasoned that “[ejxplaining the details of federal habeas procedure and calculating statutes of limitations are tasks normally and properly performed by trained counsel” and held that “[district judges have no obligation to act as counsel or paralegal to pro se litigants.” Id. To decide otherwise, the Court said, “would under-mine district judges’ role as impartial decisionmakers” and risk further confusion for petitioners. Id. at 231-32,124 S.Ct. 2441.

As described above, on remand the district court concluded that it had affirmatively misled Ford, holding that the court should have provided him “an explanation of the stay-and-abeyance procedure” and should have informed him “that the AED-PA statute of limitations would apply to his second federal petitions.” But those are the very same instructions that the Supreme Court held that district courts were not required to give. Id. at 231, 234, 124 S.Ct. 2441.

The Court was explicit in holding that the door was open to Ford only for a claim that he had been affirmatively misled “quite apart from the District Court’s failure to give the two warnings.” Id. at 234,124 S.Ct. 2441. The fact that Ford’s actions evidenced a desire to have his claims heard cannot change this result. We agree that Ford wanted to have his claims heard and resolved on the merits. But all of the facts cited in the Report and Recommendation adopted by the district court were part of the record of this case and known to the Supreme Court when it rendered its decision.

The Pliler decision recited as fact that Ford “filed motions to stay ... so that he could return to state court to exhaust the unexhausted claims.” Id. at 228, 124 S.Ct. 2441. When Ford dismissed his first federal petitions, nominally without prejudice, the limitations period for a federal filing had already expired, a point we highlighted in our previous decision. Ford, 330 F.3d at 1100. It was obvious that Ford did not understand that dismissing the federal petitions would prevent him from returning to federal court with any of his claims, or else he never would have selected that alternative.

That, however, did not alter the Court’s decision in Pliler. More broadly, it can be assumed that all habeas petitioners would prefer not to see their petitions dismissed on statute of limitations grounds and would instead prefer that the court reach the merits, but that is not enough to excuse untimely filings. Nor is it a sufficient basis for us to hold that the district court was required in this ease to give the warnings which Pliler held district courts are not required to give. Pliler does not leave us room to rule otherwise.

The Court stated in Pliler that “[district judges have no obligation to act as counsel or paralegal to pro se litigants.” 542 U.S. at 231, 124 S.Ct. 2441; see also Robbins v. Carey, 481 F.3d 1143, 1148 (9th Cir.2007) (“Pliler extends beyond the giving of two warnings to pro se litigants because district courts have no obligation to act as counsel or paralegal to pro se litigants and because the Constitution does not require judges to take over chores for a pro se defendant that would normally be attended to by trained counsel as a matter of course.” (internal quotation marks, citations, and brackets omitted)).

We cannot hold that district judges somehow do have such an obligation simply because it seems clear that a pro se petitioner otherwise might not understand the relevant law. This risk of misunderstanding will be present for most, if not all, pro se litigants. That exception would swallow the rule. In order to show that he was affirmatively misled, Ford needed to point to some inaccuracy in the district court’s instructions. He has failed to identify any affirmative misstatement.

The description of the dismissals of the petitions as “without prejudice” does not represent such a misstatement, because those dismissals were in fact without prejudice, as that term is understood in its legal sense. See Black’s Law Dictionary 502 (8th ed. 2004) (“A dismissal that does not bar the plaintiff from refiling the lawsuit within the applicable limitations period.”). We have previously so held. In Brambles v.

Duncan, 412 F.3d 1066, 1068-70 (9th Cir.2005), we explained that the court presented “accurate options,” one of which was dismissal without prejudice, even though the options were given “twelve days after the AED-PA’s one-year statute of limitations had expired.” A petitioner’s misunderstanding of accurate information cannot merit relief, as equitable tolling requires a petitioner to show that some “extraordinary eircumstance[] beyond [his] control” caused his late petition, see, e.g., id. at 1069 (internal quotation marks omitted), and this standard has never been satisfied by a petitioner’s confusion or ignorance of the law alone.

Waldron-Ramsey, 556 F.3d at 1011 (“To apply the doctrine in extraordinary circumstances necessarily suggests the doctrine’s rarity, and the requirement that extraordinary circumstances stood in his way suggests that an external force must cause the untimeliness, rather than ... merely oversight, miscalculation or negligence on the petitioner’s part....”) (internal quotation marks and brackets omitted); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.2006) (“We now ... hold that a pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”).

A petitioner like Ford must show that the court erred in the instruction it did give him. This was our holding in Brambles, see 412 F.3d at 1070-71, and Ford has not satisfied that requirement. “As a result of the interplay between AEDPA’s 1-year statute of limitations and Lundy’s dismissal requirement, petitioners who come to federal court with ‘mixed’ petitions run the risk of forever losing their opportunity for any federal review....” Rhines v. Weber, 544 U.S. 269, 275, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). This is the reality of the current state of law, a reality that includes Pliler.

In this case, the district court gave Ford accurate instruction before dismissing his mixed habeas petitions without prejudice. Pliler does not require anything more. While Ford may have been, and likely was, confused about the operation of the statute of limitations, he was not affirmatively misled by the district court. He is not entitled to equitable tolling of the limitations period on that ground. B. The missing legal files did not prevent Ford from timely filing.

Also before us is the district court’s determination that Ford is not entitled to equitable tolling based on his state appellate counsel’s conduct. Ford argues that his attorney did not provide him with “the complete set of his legal papers” until July of 1997 and, therefore, it was impossible for him to have discovered the factual predicate for his newly asserted claims until that time.

The problem for Ford is that he never objected to the district court’s factual finding that he “was aware of the factual bases of his ... claims as early as 1992.” As a result, he has waived any challenge to that finding, and we must take it as true. Robbins, 481 F.3d at 1146; United States v. Torf 357 F.3d 900, 910 (9th Cir.2004). This posture makes it quite clear that regardless of when Ford’s attorney provided him his complete legal files, his alleged inability to access them cannot be “the cause of his untimeliness” since he did not need the legal materials they contained to file a timely habeas petition.

Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1061 (9th Cir.2007) (internal quotation marks omitted). As such, the district court was correct in denying Ford equitable tolling. See id. III. Conclusion Ford was not affirmatively misled by the district court. Although it failed to advise him of the likely consequences of his procedural options, the district court accurately presented those options to him. This is all it was required to do.

In addition, Ford is not entitled to equitable tolling on the ground that he did not have his legal files because the record shows that he was aware of the factual basis of his claims without them. Ford’s petitions were filed after the limitations period had run. The petitions do not qualify for equitable tolling of the limitations period, so they were untimely and must be dismissed. AFFIRMED IN PART; REVERSED IN PART. . For more detail concerning the background of this case, see our previous decision, Ford, 330 F.3d at 1094-97. .

Any implication in the dissenting opinion that Justice O’Connor’s concurring opinion expressed a different view is unfounded. Justice O’Connor joined in the majority. As her concurring opinion explained, she wrote to highlight that ”[t]he propriety of the stay-and-abeyance procedure generally is not addressed” in the majority opinion, and that such an approach "is not an idiosyncratic one” but rather had been approved by seven of the eight Circuits to consider it. 542 U.S. at 234, 124 S.Ct. 2441. That is not at issue here.

What matters for this case is that she expressly agreed with the majority opinion that the district court is not required to calculate whether any time remained on the limitations period for the individual petitioner: For the reasons given by the majority, ante, at 231-233, 124 S.Ct. 2441, it is not incumbent upon a district court to establish whether the statute of limitations has already run before explaining the options available to a habeas petitioner who has filed a mixed petition. Id. at 235, 124 S.Ct. 2441. .

We are not persuaded that our decision in Brambles can be disregarded or distinguished based on the "terseness” of its discussion, as the dissenting opinion, at 16832-33, suggests. The issue there was essentially the same as the issue in this case, and it is plain that the Brambles panel understood the issue and spoke to it. That decision concluded that the instructions given to petitioner by the district court, which included the words "without prejudice” even though, as here, the AEDPA one-year limitations period had already run by the time the instructions were given, "were not affirmatively misleading.

They presented accurate options available to Brambles.” 412 F.3d at 1070. The decision included an additional explanation that underscores the similarity of the issue in that case: If anything was misleading, it was what the district court did not tell Brambles — that the dismissal of his first petition would effectively be final unless he could establish that the statute of limitations period was equitably tolled, and that the stay and abey process was available.

However, the Supreme Court in Pliler admonished district courts against attempting to explain to pro se litigants these federal habeas procedures, stating that attempting to do so might prove to be misleading. Pliler, 124 S.Ct. at 2446. Id. at 1070-71. Nor are we persuaded by the dissenting opinion's citation to decisions by this court that predate the Supreme Court's decision in Pliler. Notably, the citation to Tillema v.

Long, 253 F.3d 494, 504 (9th Cir.2001), points specifically to a paragraph that also spoke of "why district courts must take special care to advise habeas petitioners of their option to strike unexhausted claims in light of AEDPA.” 235 F.3d at 503.