FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARRYL D. NEDDS, 

No. 08-56520 Petitioner-Appellant,

D.C. No.

v.  2:01-cv-08355-

ART CALDERON, Warden, DSF-CW

substituted for Don Taylor, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted

May 2, 2011—Pasadena, California

Filed May 4, 2012

Before: Harry Pregerson, Raymond C. Fisher, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Pregerson

4809
COUNSEL

Sean K. Kennedy, Federal Public Defender, Los Angeles,

California; Michael Tanaka (argued), Deputy Federal Public

NEDDS v. CALDERON 4811
Defender, Los Angeles, California for the petitionerappellant.

Edmund G. Brown Jr., Attorney General of California; Dane

R. Gillette, Chief Assistant Attorney General; Pamela C.

Hamanaka, Senior Assistant Attorney General; Stephanie C.

Brenan, Deputy Attorney General; David A. Wildman

(argued), Deputy Attorney General, Los Angeles, California,

for the respondent-appellee.

OPINION

PREGERSON, Circuit Judge:

Petitioner-Appellant Darryl Nedds (“Nedds”), a California

state prisoner, appeals the district court’s holding that his 28

U.S.C. § 2254 habeas corpus petition is time-barred by the

one-year statute of limitations created by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). The

district court dismissed Nedds’ habeas petition solely for

untimeliness and did not reach the merits of Nedds’ claim.

Accordingly, the only issue before us is whether Nedds timely

filed his federal habeas petition.

Nedds argues that he is entitled to equitable tolling for the

entire time he pursued his state habeas petitions because, in

deciding when he should file his federal habeas petition, he

was entitled to rely on then-existing Ninth Circuit precedent

under which his federal habeas petition would have been

timely when filed. We agree. A habeas petitioner who decides

when to file his federal habeas petition in accord with Ninth

Circuit precedent that is later overturned by the U.S. Supreme

Court is entitled to equitable tolling. See Harris v. Carter, 515

F.3d 1051, 1057 (9th Cir.), cert. denied, 555 U.S. 967 (2008);

Townsend v. Knowles, 562 F.3d 1200, 1206 (9th Cir. 2009),

abrogated on other grounds by Walker v. Martin, 131 S. Ct.

4812 NEDDS v. CALDERON
1120 (2011). Because we hold that Nedds is entitled to equitable tolling, we vacate the district court’s order dismissing

Nedds’ federal habeas petition as untimely and remand the

case to the district court for consideration of Nedds’ petition

on the merits.

BACKGROUND

On October 9, 1997, Nedds was convicted in Los Angeles

County Superior Court of one count of possession of a controlled substance (one rock of crack cocaine). Nedds had four

prior felony convictions—all for robbery—within the meaning of California’s Three Strikes Law. Because of the priors,

he was sentenced to twenty-five years to life in state prison.

On January 13, 1999, the California Court of Appeal affirmed

the conviction, and on March 24, 1999, the California

Supreme Court denied review. The conviction became final

on June 22, 1999. 

Nedds’ quest for habeas relief proceeded as follows:

• On May 25, 1999, before the conviction was

final, Nedds filed identical state habeas petitions

in Superior Court, and the California Court of

Appeal.

• On or about May 27, 1999, Nedds was transferred from Ironwood State Prison to Tehachapi

State Prison (“Tehachapi”). 

• The Superior Court denied Nedds’ habeas petition on June 25, 1999, and the California Court

of Appeal denied the petition on July 14, 1999. 

• On December 22, 1999—160 days later—Nedds

filed another state habeas petition in the California Court of Appeal. The petition was denied on

January 26, 2000. 

NEDDS v. CALDERON 4813
• On April 5, 2000—70 days later—Nedds filed a

state habeas petition in the California Supreme

Court. The petition was denied on September 27,

2000. 

• On September 10, 20011—348 days later—Nedds

filed a habeas petition in federal district court. All

of the petitions (both state and federal) were filed

pro se. 

• On August 11, 2008, the district court dismissed

Nedds’ federal habeas petition as untimely for

failing to meet AEDPA’s one-year statute of limitations, which, absent any form of tolling,

expired on June 22, 2000. 

Nedds timely appealed to this court, arguing that the district

court erred by not crediting him with the equitable and statutory tolling to which he was entitled. Nedds argues that he

was entitled to equitable tolling for the time his state habeas

petitions were pending because under then-current, but later

overturned, Ninth Circuit law, his federal habeas petition

would have been timely. Nedds also argues that his filing

delays were justified and that he was entitled to statutory tolling for the period he was in the high security prison at

Tehachapi, because, among other things, he had severely limited access to the law library, he was frequently under lockdown, and he was under extreme stress due to prison violence.

1Nedds’ petition was dated July 10, 2001, but the petition was not

received and filed by the district court until September 27, 2001. The district court, however, mistakenly read the signature date as September 10,

2001, and construed that date as the applicable constructive filing date.

After realizing its error, the district court found that a prison mailing and

constructive filing date two and a half months before receipt by the court

was not credible, so it continued to use the September 10, 2001, date in

its analysis. Because the discrepancy in filing dates is not dispositive of

this appeal, we follow the district court in using the September 10, 2001,

filing date. 

4814 NEDDS v. CALDERON
According to Nedds, the prison conditions made it difficult

for him to timely file his habeas petition. Lastly, Nedds argues

that he is entitled to equitable and statutory tolling because he

did not receive timely notice of the July 14, 1999, California

Court of Appeal denial of his second habeas petition. 

DISCUSSION

This court reviews de novo a district court’s decision to dismiss a § 2254 habeas petition as untimely. Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006). Underlying findings

of fact are reviewed for clear error. Id.

I

A petitioner is entitled to equitable tolling only if he shows

“ ‘(1) that he has been pursuing his rights diligently, and (2)

that some extraordinary circumstance stood in his way’ and

prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549,

2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)). The grounds for granting equitable tolling are

“highly fact-dependent.” Laws v. Lamarque, 351 F.3d 919,

922 (9th Cir. 2003) (quoting Whalem/Hunt v. Early, 233 F.3d

1146, 1148 (9th Cir. 2000) (en banc)) (internal quotation

marks omitted). When considering whether to apply equitable

tolling, the Supreme Court has emphasized the need for

“ ‘flexibility’ ” and for “avoiding ‘mechanical rules.’ ” Holland, 130 S. Ct. at 2563 (quoting Holmberg v. Armbrecht, 327

U.S. 392, 396 (1946)). A court reviewing a habeas petition

should adhere to “a tradition in which courts of equity have

sought to ‘relieve hardships which, from time to time, arise

from a hard and fast adherence’ to more absolute legal rules,

which, if strictly applied, threaten the ‘evils of archaic rigidity.’ ” Id. (quoting Hazel-Atlas Glass Co. v. Hartford-Empire

Co., 322 U.S. 238, 248 (1944), disapproved of on other

grounds by Standard Oil Co. of Cal. v. United States, 429

U.S. 17, 18 & n.2 (1976)).

NEDDS v. CALDERON 4815
II

Under AEDPA, a state prisoner has one year from the date

his conviction becomes final to file a federal habeas corpus

petition. 28 U.S.C. § 2244(d)(1)(A). A habeas petitioner is

entitled to statutory tolling of AEDPA’s one-year statute of

limitations while a “properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2). A petitioner who unreasonably delays in filing a state habeas

petition would not be granted the benefit of statutory tolling

because the petition would not be considered “pending,”

Carey v. Saffold, 536 U.S. 214, 225 (2002), or “properly

filed,” Pace, 544 U.S. at 418, within the meaning of

§ 2244(d)(2). 

Nedds’ conviction was final on June 22, 1999. Accordingly, absent statutory tolling, the deadline to file his federal

habeas petition was June 22, 2000. But Nedds did not file his

federal habeas petition until September 10, 2001. Nedds

argues that regardless of whether he is entitled to statutory

tolling, he is entitled to equitable tolling. Nedds contends that

AEDPA’s one-year statute of limitations should be equitably

tolled for the entire time he pursued his state habeas petitions

because, in deciding when he should file his federal habeas

petition, he relied on then-existing Ninth Circuit precedent.

Under that precedent, Nedds argues, he timely filed his federal habeas petition on September 10, 2001, because it was

filed less than one year after the California Supreme Court

denied Nedds’ final state habeas petition. We agree.2

2The government argues that the 160-day delay between Nedds’ second

and third state habeas petitions and the 70-day delay between his third and

fourth state habeas filings were unreasonable, and he is therefore not entitled to statutory tolling. Because we conclude that Nedds is entitled to

equitable tolling, we need not decide if he is entitled to statutory tolling.

4816 NEDDS v. CALDERON
III

[1] A habeas petitioner who decides when to file his federal habeas petition by relying on Ninth Circuit precedent that

is later overturned by the Supreme Court is entitled to equitable tolling. Harris v. Carter, 515 F.3d 1051, 1057 (9th Cir.),

cert. denied, 555 U.S. 967 (2008); Townsend v. Knowles, 562

F.3d 1200, 1206 (9th Cir. 2009), abrogated on other grounds

by Walker v. Martin, 131 S. Ct. 1120 (2011). Indeed, “[t]hese

are precisely the circumstances in which equitable principles

justify tolling of the statute of limitations.” Id. at 1056.

[2] On July 6, 1999, the Ninth Circuit decided Nino v.

Galaza, 183 F.3d 1003 (9th Cir. 1999), holding that

“[AEDPA’s] statute of limitations is [statutorily] tolled from

the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner’s final collateral challenge.” Id. at 1006 (footnotes omitted). Thus, Nedds was

entitled to assume under Nino that the AEDPA statute of limitations would not begin to run until September 27, 2000,

when his final state habeas petition was denied by the California Supreme Court. His AEDPA deadline was therefore one

year later, on September 27, 2001. Because he filed his federal petition on September 10, 2001, his petition was timely

under Nino. 

[3] Not until June 17, 2002, when the United States

Supreme Court decided Carey v. Saffold, 536 U.S. 214, 225

(2002), did the law on statutory tolling of AEDPA’s statute of

limitations change—well after Nedds filed his federal habeas

petition. In Saffold, the Court implicitly overruled Nino, as it

held that a California habeas petitioner who unreasonably

delays in filing a state habeas petition is not entitled to the

benefit of statutory tolling during the gap or interval preceding the filing. See id. at 225-27. Accordingly, under current

Supreme Court law, if the state habeas court or the federal

habeas court determines that a petitioner’s state habeas delays

NEDDS v. CALDERON 4817
were unreasonable, he would not be entitled to statutory tolling for the intervals between state habeas petitions. 

Nedds correctly argues, however, that Townsend and Harris control the outcome of his case. In Harris, we held that

habeas petitioners who relied on precedent such as Nino were

entitled to equitable tolling for the pendency of their state

court habeas proceedings if Ninth Circuit precedent then in

effect, under which the filing was timely, was later overturned

by the United States Supreme Court. See Harris, 515 F.3d at

1057 (“Equitable principles dictate that [the court] toll

AEDPA’s statute of limitations in the rare case where a petitioner relies on [the court’s] legally erroneous holding in

determining when to file a federal habeas petition.”); id. at

1053 n.3. 

[4] Just as in Harris, Nedds “relied in good faith on thenbinding circuit precedent in making his tactical decision to

delay filing a federal habeas petition.” Id. at 1055. Under

Harris, Nedds’ actions consistent with later overturned precedent qualify as an “extraordinary circumstance.” Id. at 1057.

Similar to the petitioner in Townsend, Nedds “diligently pursued his rights in his postconviction habeas petition in the

state courts and ensured that he had enough time remaining to

file a [timely] federal habeas petition under the then-existing

[Nino] rule.” Townsend, 562 F.3d at 1206. Nedds demonstrated the requisite “diligence” because his “failure to file a

timely petition is not the result of oversight, miscalculation or

negligence on his part.” Harris, 515 F.3d at 1055. Because

Nedds was entitled to equitable tolling, his AEDPA deadline

was September 27, 2001, one year after the California

Supreme Court denied his final state petition. Nedds filed his

federal petition on September 10, 2001. His federal habeas

petition was therefore timely.3

3The government argues that Nedds is precluded from arguing that he

is entitled to equitable tolling because of his reliance on now-overruled

Ninth Circuit precedent, because this specific equitable tolling argument

4818 NEDDS v. CALDERON
IV

The government argues that our decision in Lakey v. Hickman, 633 F.3d 782 (9th Cir. 2011), precludes Nedds’ argument that he is entitled to equitable tolling under Harris and

Townsend. We disagree. According to the government, Lakey

established a requirement that a habeas petitioner must make

an affirmative showing of actual reliance on the previous

Ninth Circuit law to receive the benefit of equitable tolling.

The government argues that Nedds makes no such showing.

[5] In support of its theory that Lakey establishes an affirmative showing of actual reliance requirement, the government mistakenly focuses on language in Lakey noting that the

petitioners in Harris and Townsend “made a showing that

they actually relied on a correct interpretation of the [lateroverturned Ninth Circuit precedent] in delaying their federal

petitioners.” Id. at 787. First, this language was merely

descriptive, and was in no way dispositive in Lakey. And in

fact, nothing in either Harris or Townsend refers to the petitioners in those cases making an affirmative showing of actual

reliance, in the sense of proving awareness and consideration

of the precedents when deciding when to file their petitions.

[6] Nor do Harris or Townsend establish a requirement

that petitioners show actual reliance in that sense. Harris, for

is an uncertified claim not included in the Certificate of Appealability. The

Certificate of Appealability was granted with respect to the following

issue: “whether the district court properly dismissed appellant’s 28 U.S.C.

§ 2254 petition as untimely, including (1) whether appellant is entitled to

statutory ‘gap’ tolling, [ ] and (2) whether appellant is entitled to equitable

tolling based on his lack of access to his legal materials and/or his delayed

notice that the California Court of Appeal had denied his state habeas petition.” This language is probably broad enough to encompass the variant

of the equitable tolling argument we address. In any event, we construe

Nedds’ equitable tolling argument under Harris and Townsend as a motion

to expand the Certificate of Appealability, and we grant the motion. White

v. Martel, 601 F.3d 882, 884 (9th Cir. 2010) (per curiam); see also 9th Cir.

R. 22-1(e); Velasquez v. Kirkland, 639 F.3d 964, 966 n.3 (9th Cir. 2011).

NEDDS v. CALDERON 4819
example, noted that “Harris was undoubtedly aware of when

AEDPA’s statute of limitations would expire under our rule

in Dictado” and “presumably chose his tactical strategy” on

that basis. 515 F.3d at 1055 (emphasis added). Harris was

premised not on affirmative proof of actual reliance but on the

assumption that litigants may, and do, make strategic decisions on the basis of applicable precedents. Thus, a showing

of actual reliance may be presumed from the circumstances.

Lakey does not announce a new affirmative showing of

actual reliance requirement either. Rather, in Lakey we denied

the petitioner equitable tolling because he did not file his federal habeas petition until 141 days after the Supreme Court

overruled Dictado, the previously authoritative Ninth Circuit

case. Lakey, 633 F.3d at 787. This delay provided clear indication that Lakey did not rely on Dictado in deciding when

to file his habeas petition, but was simply dilatory. While

Lakey does establish that a petitioner who clearly did not rely

on our precedent in timing his petition is not entitled to equitable tolling, it does not establish the opposite—that a petitioner must make an affirmative showing of actual reliance to

be entitled to equitable tolling. Instead, Lakey demonstrates

that in some circumstances the usual presumption that litigants’ behavior is influenced by the law in effect at the time

they act is belied by the overall course of events.

[7] Unlike in Lakey, in Harris and Townsend the petitioners’ actions were consistent with reliance on Dictado in deciding when to file their petitions. As we noted in Lakey, the

petitioner in Harris filed his federal habeas petition just fourteen days after the Supreme Court overturned our precedent,

and the petitioner in Townsend filed his claim before the

Supreme Court announced its decision. Id. Like the petitioner

in Townsend, Nedds must be presumed to have relied on our

precedent, since he filed his federal habeas petition almost

nine months before our Nino decision was implicitly overturned by the Supreme Court in Saffold, and very shortly

before the deadline as calculated under Nino.

4820 NEDDS v. CALDERON
Just as Lakey does not preclude Nedds’ equitable tolling

claim, our decision in Velasquez v. Kirkland, 639 F.3d 964

(9th Cir. 2011), is no bar to relief. In Velasquez, we denied

equitable tolling, holding that the petitioner was put on notice

of the relevant change in law in Saffold, 536 U.S. at 225,

because it was decided by the Supreme Court before the petitioner filed even his state habeas petitions. The petitioner

could not have relied on precedent that was overturned before

he filed his first habeas petition. Velasquez is unlike the situation Nedds faced, because, as we discussed above, Saffold

was decided after Nedds filed his federal habeas petition.

Thus, it was impossible for Nedds to have been on notice of

the Saffold decision while he was deciding when to file his

federal habeas petition.4

CONCLUSION

[8] Nedds is entitled to equitable tolling for the time period

his state court habeas petitions were pending because he was

entitled to rely on then-existing, but later overturned, Ninth

Circuit precedent that would have made his federal habeas

petition timely when it was filed. We therefore VACATE the

district court’s order dismissing Nedds’ federal habeas petition as untimely and REMAND the case to the district court

for consideration of Nedds’ petition on the merits.

4As an alternative ground for receiving equitable and statutory tolling,

Nedds contends that he did not receive timely notice of the July 14, 1999,

denial of his second petition because the California Court of Appeal did

not have his correct address after he was transferred to Tehachapi. See Saffold, 536 U.S. at 226 (treating petitioner’s lack of timely notice of his state

habeas denial as a relevant consideration in determining whether the 4 1/2-

month gap between filings was reasonable). Nedds, however, did not

notify the court of his change of address. See Cal. R. Ct. 8.32 (b)(1) (“An

. . . unrepresented party whose address . . . changes while a case is pending

must promptly serve and file a written notice of the change in the reviewing court in which the case is pending.”). Nor does Nedds state in his

briefs the date on which he finally received notice of the court’s denial.

For these reasons, we agree with the district court that Nedds is not entitled to statutory or equitable tolling on this ground. 

NEDDS v. CALDERON 4821