FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN PELESASA FUE,

Petitioner-Appellant,

v.

MARTIN BITER, Warden,

Respondent-Appellee.

No. 12-55307

D.C. No.

2:11-cv-02436-

DMG-MRW

OPINION

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Argued and Submitted En Banc September 8, 2016

San Francisco, California

Filed November 17, 2016

Before: Sidney R. Thomas, Chief Judge, and Alex

Kozinski, Barry G. Silverman, M. Margaret McKeown,

William A. Fletcher, Richard A. Paez, Richard C. Tallman,

Richard R. Clifton, Jay S. Bybee, N. Randy Smith and

Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Bybee
2 FUE V. BITER

SUMMARY*

Habeas Corpus

The en banc court reversed the district court’s judgment

dismissing as untimelyCalifornia state prisoner Steven Fue’s

federal habeas corpus petition, and remanded for further

proceedings, in a case in which Fue argues that he is entitled

to equitable tolling because the California Supreme Court

never notified him that it had denied his state habeas petition.

The en banc court held that Fue’s lack of knowledge of

the denial, if proven, would entitle him to equitable tolling,

and remanded for further factual development on whether Fue

received notice of the denial. 

The en banc court wrote that Fue could reasonably have

expected to be notified once the California Supreme Court

ruled on his petition, and that his decision to contact the court

about the status of his case after fourteen months shows

diligence, not a lack thereof. 

The en banc court wrote that to the extent this court has

required that petitioners must demonstrate that it was

“impossible” to file a timely petition, such a requirement is

inconsistent with the requirement in Holland v. Florida, 560

U.S. 631 (2010), that a habeas petitioner demonstrate only

that he has been pursuing his rights diligently, and that some

extraordinary circumstance stood in his way and prevented

timely filing.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
FUE V. BITER 3

COUNSEL

Michael Tanaka (argued), Deputy Federal Public Defender;

Sean K. Kennedy, Federal Public Defender; Office of the

Federal Public Defender, Los Angeles, California, for

Petitioner-Appellant.

David F. Glassman (argued) and Yun K. Lee, Deputy

Attorneys General; Scott A. Taryle, Supervising Deputy

Attorney General; Lance E. Winters, Senior Assistant

Attorney General; Dane R. Gillette, Chief Assistant Attorney

General; Kamala D. Harris, Attorney General; Office of the

Attorney General, Los Angeles, California, for RespondentAppellee.

OPINION

BYBEE, Circuit Judge:

After the California Supreme Court denied Steven Fue’s

direct appeal from his conviction for carjacking, Fue had one

year in which to file a federal habeas corpus petition. Instead,

Fue filed a state habeas petition, which tolled the time for

filing his federal petition. When Fue finally filed his federal

habeas petition, the district court dismissed it as untimely. 

Fue argues that he is entitled to equitable tolling because the

California Supreme Court never notified him that it had

denied his state petition. We hold that Fue’s lack of

knowledge of the denial, if proven, would entitle him to

equitable tolling. Accordingly, we reverse the judgment of

the district court and remand for further proceedings.
4 FUE V. BITER

I

Fue was sentenced to twenty-six years in state prison after

a jury found him guilty of carjacking, second degree robbery,

possession of a firearm by a felon, and unlawful driving of a

vehicle. The California Court of Appeal affirmed the

convictions, and the California Supreme Court denied Fue’s

petition for review on February 18, 2009. The Antiterrorism

and Effective Death Penalty Act (“AEDPA”) imposes a oneyear limitations period for filing a federal habeas corpus

petition, starting from the date that a petitioner’s conviction

becomes final. 28 U.S.C. § 2244(d)(1). Fue’s convictions

became final on May 19, 2009, ninety days after the

California Supreme Court denied his petition for review on

direct appeal.

On November 15, 2009, Fue mailed a habeas petition to

the California Supreme Court, thus tolling the limitations

period. See 28 U.S.C. § 2244(d)(2). After fourteen months,

Fue wrote to the court clerk on January 31, 2011 to inquire

about the status of his petition. The clerk’s response letter,

dated February 3, 2011, stated in full: “This will

acknowledge receipt of your letter received February 3, 2011,

I checked our dockets and found no record of a pending

petition for writ of habeas corpus having been filed on or

about November 2009.” In fact, the California Supreme

Court had received the petition and denied it on May 20,

2010, six months after it was filed. Fue alleges that the court

never notified him that it denied his petition.

After consulting his lawyer about what to make of the

clerk’s response letter, Fue mailed a federal habeas petition

to the United States District Court for the Central District of

California on March 7, 2011. Fue’s petition noted that he had
FUE V. BITER 5

filed a state habeas petition in the California Supreme Court,

but that he did not have a docket number and was “waiting

for a response still.” The State filed a motion to dismiss the

petition as barred under AEDPA’s one-year statute of

limitations, arguing that the limitations period started running

again after the denial of Fue’s state habeas petition on May

20, 2010 and expired on November 20, 2010. Fue claims that

the State’s motion to dismiss was the first notice he ever

received that the California Supreme Court had denied his

state habeas petition. The district court dismissed Fue’s

petition as untimely, rejecting his contention that he was

entitled to equitable tolling. Fue appealed, and a panel

affirmed the district court in a divided decision. See Fue v.

Biter, 810 F.3d 1114 (9th Cir. 2016). We granted rehearing

en banc, — F.3d — (9th Cir. 2016), and now reverse.

II

“We review de novo the dismissal of a petition for writ of

habeas corpus on statute of limitations grounds.” Corjasso v.

Ayers, 278 F.3d 874, 877 (9th Cir. 2002). In reviewing a

motion to dismiss a habeas petition as untimely, we “accept[]

the facts as alleged” by the petitioner. See Huizar v. Carey,

273 F.3d 1220, 1224 (9th Cir. 2001). Taking these facts as

true, “we review de novo whether the statute of limitations

should be equitably tolled.” Corjasso, 278 F.3d at 877

(quoting Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.

1999)).

III

A habeas 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
6 FUE V. BITER

stood in his way’ and prevented timely filing.” Holland v.

Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)). We have

previously held that a petitioner’s lack of knowledge that his

state habeas petition has been denied can constitute an

extraordinary circumstance that prevents timely filing. 

Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). For

purposes of this appeal from a motion to dismiss, the State

does not contest that the California Supreme Court failed to

notify Fue that it denied his state habeas petition. Rather, the

State contends that Fue failed to pursue his rights diligently

by waiting fourteen months to contact the court about the

status of his case. For the reasons outlined below, we

disagree.

A

“The diligence required for equitable tolling purposes is

‘reasonable diligence,’ not ‘maximum feasible diligence.’” 

Holland, 560 U.S. at 653 (citations omitted). Reasonable

diligence requires only “the effort that a reasonable person

might be expected to deliver under his or her particular

circumstances.” Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir.

2011). “To determine if a petitioner has been diligent in

pursuing his petition, courts consider the petitioner’s overall

level of care and caution in light of his or her particular

circumstances.” Id. at 1013.

As with other equitable considerations, determining

whether a petitioner acted with reasonable diligence is a factspecific inquiry. Holland, 560 U.S. at 649–50; Busby,

661 F.3d at 1011. This is “not the arena of bright-lines and

dates certain.” Busby, 661 F.3d at 1015. We are guided by

“decisions made in other similar cases . . . with awareness of
FUE V. BITER 7

the fact that specific circumstances, often hard to predict in

advance, could warrant special treatment in an appropriate

case.” Holland, 560 U.S. at 650.

One such similar case is Huizar v. Carey, 273 F.3d 1220

(9th Cir. 2001). In that case, a petitioner requested equitable

tolling of AEDPA’s limitations period when he mailed a

habeas petition to the California Superior Court, but the

petition was never received. Huizar, 273 F.3d at 1222. He

wrote the court two months after mailing the petition to

inquire about the status of his case but received no response. 

Id. He then waited another twenty-one months before

contacting the court again. Id. In assessing whether the

petitioner acted with reasonable diligence, we stated that

twenty-one months is “not an unusually long time to wait for

a court’s decision.” Id. at 1224.

The conclusion that twenty-one months, and by inclusion

fourteen months, is “not an unusually long time to wait for a

court’s decision” applies with extra force in the context of the

present case. The petitioner in Huizar filed his habeas

petition in the California Superior Court, whereas Fue filed

his petition in the California Supreme Court. The California

Rules of Court require the Superior Court to render a decision

on a habeas petition within sixty days and provide a process

for a petitioner to request a ruling if his petition is not

resolved within that time. Cal. R. Ct. 4.551(a)(3). The

California Supreme Court has no such time limit for ruling on

habeas petitions, and its rules require it to “promptly” notify

parties when it renders a decision. Cal. R. Ct. 8.532(a). In

other words, the Superior Court rule invites petitioners to

follow up on their habeas petitions, but the Supreme Court

has adopted a “don’t call us; we’ll call you” policy. This

difference may explain why the petitioner in Huizar made
8 FUE V. BITER

contact with the court just two months after mailing his

petition. It may also explain why Fue did not think he needed

to contact the court earlier than he did. Fue could reasonably

have expected to be notified once the California Supreme

Court ruled on his petition. His decision to contact the court

after fourteen months, “not an unusually long time to wait for

a court’s decision,” actually shows his diligence, not a lack

thereof.

Similar cases from other circuits illustrate application of

the same principles and the case-specific nature of the

determination. The Sixth Circuit, noting that “it is a difficult,

if not impossible endeavor, [for litigants] to estimate how

long a reviewing court will take to decide a particular

motion,” held that a pro se petitioner who waited nine months

before contacting the court about his case acted with

reasonable diligence. Miller v. Collins, 305 F.3d 491, 496

(6th Cir. 2002). The Fifth Circuit held that an eleven-month

delay in contacting the court was reasonable “given [the

petitioner’s] prisoner and pro se status and the fact that the

[court] had the legal duty to notify him” when it rendered a

decision, which it failed to do. Hardy v. Quarterman,

577 F.3d 596, 599 (5th Cir. 2009) (per curiam). And the

Eleventh Circuit sanctioned a wait of over sixteen months in

contacting the court when a pro se petitioner had been told

that he would be notified of any decision in his case, but he

never received such notice. Knight v. Schofield, 292 F.3d

709, 710–11 (11th Cir. 2002) (per curiam).1 Fue, also a pro

1 The Eleventh Circuit later distinguished Knight, holding that a

sixteen-month delay in contacting the court was unreasonable when no

one had explicitly told the petitioner that he could expect a notification

from the court when it rendered a decision. Drew v. Dep’t of Corr.,

297 F.3d 1278, 1288 n.3 (11th Cir. 2002). The court in Drew was
FUE V. BITER 9

se petitioner entitled to receive notice of the state court’s

decision, acted diligently by contacting the court after a

reasonable amount of time (here, fourteen months) had

passed. Compare Diaz v. Kelly, 515 F.3d 149, 154–56 (2d

Cir. 2008) (finding that a pro se petitioner’s nine-month delay

in contacting the court was reasonable where the law required

the court to notify parties of its decisions, but the petitioner

did not receive notice), with LaCava v. Kyler, 398 F.3d 271,

276–78 (3d Cir. 2005) (declining to grant equitable tolling

after a twenty-one month delay in contacting the court where

the petitioner was represented by counsel and not entitled to

personal notice of the court’s decision), and Cousin v.

Lensing, 310 F.3d 843, 849 (5th Cir. 2002) (same, twentyfour months).

B

The State would have us distinguish Huizar because the

petitioner in that case engaged in a “steady stream of

correspondence” with the court, 273 F.3d at 1224, while Fue

wrote the California Supreme Court only once. We first note

that, contrary to the State’s assertion, Huizar did not establish

a requirement that habeas petitioners maintain a “steady

stream of correspondence” with the court. We merely

observed in Huizar that the petitioner had made multiple

attempts to contact the court, which tended to show his

diligence. Id. The petitioner in Huizar contacted the court

reviewing for clear error, id. at 1283, 1289–90, while our review at this

stage of the litigation is de novo. Nevertheless, it strikes us that “Drew

had every reason to expect that the court would notify him once it ruled

on his petition; every litigant knows that the court is supposed to inform

the parties when a result has been reached.” Id. at 1300 (Barkett, J.,

dissenting).
10 FUE V. BITER

three times after mailing his petition—once after two months,

again twenty-one months later, and again five months after

that. Id. Such repeated correspondence made sense in Huizar

because habeas petitioners in the California Superior Court

have an avenue for requesting a ruling if the court does not

provide one within sixty days. See Cal. R. Ct. 4.551(a)(3)(B). 

There is, however, no reason to require petitioners filing in

the California Supreme Court, which promises to promptly

notify parties when it renders a decision, see Cal. R. Ct.

8.532(a), to make early and frequent inquiries with the court

about the status of their petitions. We do not require

petitioners to engage in such “overzealous or extreme”

conduct to show their diligence. Busby, 661 F.3d at 1015.

We also doubt that the California Supreme Court would

welcome the flood of status-update requests that would likely

follow were we to require all habeas petitioners to engage in

a “steady stream of correspondence” with the court to show

their diligence. In most cases, a state court will notify

petitioners when it has reached a decision. A rule requiring

petitioners to seek early and frequent updates would be a

waste of time for petitioners and a heavy administrative

burden for state courts. See Diaz, 515 F.3d at 155 (“We see

no point in obliging a pro se litigant to pester a state court

with frequent inquiries as to whether a pending motion has

been decided, at least until a substantial period of time has

elapsed.”); Drew v. Dep’t of Corr., 297 F.3d 1278, 1299 n.10

(11th Cir. 2002) (Barkett, J., dissenting) (“If litigants were

required to inquire about the status of their case before giving

the court a reasonable period to reach a decision and notify

them of the result, court personnel would be faced with a

substantial administrative burden.”).
FUE V. BITER 11

C

Ordinarily, a petitioner must act with reasonable diligence

both before and after receiving delayed notice that the state

denied his habeas petition. See Miller, 305 F.3d at 496

(considering whether a petitioner acted diligently “both

before and after receiving notice”). In this case, the parties

disagree over when Fue received notice that his state habeas

petition had been denied. Fue alleged that he first learned

that the California Supreme Court had actually denied his

petition when he received the State’s motion to dismiss his

federal habeas petition. The State counters that Fue received

notice of the denial in the clerk’s letter of February 3, 2011.

On the record before us, we disagree with the State. The

clerk’s letter informed Fue that the clerk “found no record of

a pending petition for writ of habeas corpus having been filed

on or about November 2009.” (Emphasis added.) Far from

putting Fue on notice that his petition had been denied, the

clerk’s letter could be read to suggest that the court never

received Fue’s petition. Fue, for his part, “did not know what

to think of” the letter and ultimately decided to file a federal

habeas petition immediately. In the questionnaire attached to

his federal petition, he indicated that he was still “waiting for

a response” from the California Supreme Court on his state

habeas petition and wrote “N/A” for the date of decision in

that matter. He also checked “Yes” on the questionnaire

when asked if he had “any petitions now pending (i.e., filed

but not yet decided) in any state or federal court,” and

provided the details of his state habeas petition when asked to

explain. We agree with Fue that, whatever the letter meant,

it did not give notice that Fue’s petition had been denied.
12 FUE V. BITER

Even if the clerk’s letter had been sufficient to notify Fue

that the California Supreme Court had denied his petition,

Fue acted with the requisite post-notice diligence. Fue

thought he would have three months after a denial of his state

petition to file a federal petition. (He actually had six

months, but his appellate lawyer miscalculated.) Fue filed his

federal petition within thirty-two days of receiving the clerk’s

letter—well within the time he thought he had remaining. 

During those thirty-two days, Fue was in contact with his

lawyer and deciding how to proceed in light of the clerk’s

letter. Fue’s actions show that he made “the effort that a

reasonable person might be expected to deliver under his . . .

particular circumstances.” Busby, 661 F.3d at 1015.

D

The State cites cases in which we have stated that “[t]he

petitioner must additionally show . . . that the ‘extraordinary

circumstances ma[de] it impossible to file a petition on

time.’” Ramirez, 571 F.3d at 997 (second alteration in

original) (citation omitted); see also, e.g., Randle v.

Crawford, 604 F.3d 1047, 1057 (9th Cir. 2010) (stating that

equitable tolling applies only if “extraordinary circumstances

beyond a prisoner’s control make it impossible to file a

petition on time” (emphasis and citation omitted)); Roy v.

Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (same); Spitsyn

v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (same). At the

conclusion of Fue’s direct appeal in state court, Fue had

exhausted his state remedies for all three grounds for relief

raised in his federal habeas petition. Fue postponed filing his

federal habeas petition, however, so that he could exhaust one

additional claim. That additional claim was the subject

matter of the state habeas petition before the California

Supreme Court. Because Fue did not raise the additional
FUE V. BITER 13

claim in his federal habeas petition, the State argues that the

delayed notice was not the cause of Fue’s untimeliness, as

Fue could have filed the instant petition raising only

previously exhausted claims on the first day of AEDPA’s

limitations period.

Technically, the State is correct that it would not have

been impossible for Fue to file his federal petition raising

only previously exhausted claims within the limitations

period. But “as we have previously said, the ‘impossibility’

requirement should not be strictlyimposed because ‘imposing

extraordinarily high evidentiary standards on pro se prisoner

litigants—who have already faced an unusual obstacle

beyond their control during the AEDPA limitation

period—runs against the grain’ of our precedent.” Sossa v.

Diaz, 729 F.3d 1225, 1236 (9th Cir. 2013) (quoting Lott v.

Mueller, 304 F.3d 918, 924 (9th Cir. 2002)). The word

“impossible” crept into our jurisprudence before the Supreme

Court’s decision in Holland, which stressed “flexibility” and

a disdain for “mechanical rules.” 560 U.S. at 650 (citation

omitted). Our post-Holland cases “have applied this

‘impossibility’ standard leniently, rejecting a literal

interpretation.” Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th

Cir. 2014). To 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 circumstance stood in his way’

and prevented timely filing.” Holland, 560 U.S. at 649

(citation omitted).
14 FUE V. BITER

IV

All of the above discussion assumes, as we must in

reviewing a grant of a motion to dismiss, that Fue’s

allegations are true. See Huizar, 273 F.3d at 1224. Fue’s

indication in his federal habeas petition that the California

Supreme Court had not yet decided his case supplies strong

evidence that Fue did not receive notice of the denial, as does

the very fact that he found it necessary to ask the California

Supreme Court for a status update. But the district court

made no factual findings with respect to this issue, and the

State has not yet had the chance to contest Fue’s claims. 

Accordingly, we reverse the district court’s order granting the

State’s motion to dismiss and remand the case for further

factual development. If the district court finds the facts to be

as Fue claims, “it shall deem his petition timely and consider

it on the merits.” Id.

REVERSED and REMANDED.