Fue v. Biter

When a prisoner waits fourteen months to inquire into the status of his or her habeas corpus petition, the prisoner will not be entitled to equitable tolling because he or she did not act with sufficient diligence.

In 2009, Steven Pelesasa Fue, filed a petition of habeas corpus to challenge a 2007 armed carjacking conviction. Once he filed it, it tolled the one-year limitation period while the petition was pending. Subsequently, the California Supreme Court rejected the petition but never notified Fue of the denial. Fue did not inquire as to the status of the petition until 14 months later when he contacted the California Supreme Court through mail. When he did, he was notified that it was dismissed as untimely. Fue argued in District Court that because the state court never gave him notice that his petition was denied he was entitled to equitable tolling. However, the district court disagreed and said that by him waiting fourteen months before inquiring into the petition he did not act diligently and was not entitled to equitable tolling. On appeal, the Ninth Circuit agreed with the District Court. The issue was whether by waiting fourteen months to inquire as to the status of the petition, Fue acted with “sufficient diligence to apprise himself of the status of his pending proceeding.” The panel found that other jurisdictions found a delay less than ten months as sufficiently diligent while others have found waiting over sixteen to be insufficient. Fue’s fourteen months was unreasonable and more closely aligned to the cases that found it insufficient diligence. AFFIRMED