ADVERTISEMENTS

Harris v. Carter, No. 06-35313 (2-8-08). "Come on," says the 9th, "give the petitioner a break when he relied on our precedent in not filing sooner." Petitioner is serving a state LWOP sentence for a murder. He appealed his sentence, and when that became final, filed a timely state petition, and then subsequently untimely ones. The 9th's precedent had been that even untimely state petitions tolled AEDPA's one year statute of limitations. The Supremes reversed in Pace, holding that untimely state petitions are not properly filed. The petitioner's federal claim was timely under the 9th's precedent, but barred by Pace. The State argued that petitioner was now time-barred. The 9th, joining the 10th, invoked equitable tolling, since the petitioner had relied upon established clear precedent, and had not been negligent or tactical. Equity demanded tolling, and the 9th let him proceed past the toll booth on AEDPA's already narrow fast track.

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