                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             AUG 29 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ASHLEY LOWE,                                     No. 10-56201

              Petitioner - Appellant,            D.C. No. 2:10-cv-02795-JVS-
                                                 MLG
  v.

DEBORAH K. JOHNSON, Warden,                      MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                       Argued and Submitted August 6, 2014
                               Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

       Petitioner Ashley Lowe, who is of limited intellectual ability, was convicted

of a second-degree murder in which she participated at the age of fifteen. In the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
course of an attempted street robbery, her armed companion shot and killed a man.

Lowe accepted a plea and was sentenced to sixteen years to life.

      In a pro se habeas petition filed in the district court, she raised a number of

challenges to her conviction. Among other things, she argued that she was not

informed of her rights under Miranda v. Arizona, 384 U.S. 436 (1966), and that

defense counsel was ineffective in failing to explain to her the terms of the plea.

No federal court has heard these claims on the merits, however, because her

petition was filed after the statute of limitations imposed by 28 U.S.C. § 2244(d)

had expired.

      When the magistrate judge issued his Report and Recommendation (R&R)

dismissing Lowe’s petition as untimely, he noted that she was entitled to an

opportunity to present arguments as to timeliness under Day v. McDonough, 547

U.S. 198, 210 (2006), and that she could do so by filing objections, which she was

entitled to raise under 28 U.S.C. § 636(b)(1)(C).

      Lowe filed objections, asserting that she was entitled to equitable tolling.

She alleged that she had “failed to respond in a timely manner do to fact that there

is few and inadequate resources in the prison law library. Which failed to include

materials about the (AEDPA) habeas corpus rules in filing a writ.” Lowe also




                                          2
argued that equitable tolling was warranted due to her limited access to the law

library and limited education.1

      The district judge adopted the R&R and summarily dismissed the petition in

a two-sentence order, stating in relevant part:

      [T]he Court has . . . conducted a de novo review of those portions of the
      Report and Recommendation to which objections were filed. The Court
      accepts and adopts the filings and recommendations in the Report and
      Recommendation and orders that judgment be entered dismissing the
      petition with prejudice.

The district court order did not, however, address Lowe’s equitable tolling claims.

      Our decision in Brown v. Roe, 279 F.3d 742 (9th Cir. 2002), is directly on

point. There as here, a pro se petitioner raised an equitable tolling argument for the

first time in objections to a magistrate’s recommendation that his petition be

dismissed as untimely. Id. at 743. There as here, the district court adopted the R&R

in full and “stated that the court had conducted a de novo examination of the issues

raised in Brown’s objections . . . but it did not mention Brown’s equitable tolling




      1
       Lowe simultaneously requested appointment of counsel; her request was
denied. Present counsel was appointed pursuant to an order of our court.

                                          3
argument.” Id. at 744. Nor did it “g[i]ve reasons for rejecting it.”2 Id. at 745. Brown

went on to emphasize that “[p]ro se habeas petitioners occupy a unique position in

the law” and to note that Brown – again, like Lowe – had a limited education and

was “functionally illiterate.” Id. We held that “the district court abused its

discretion . . . in failing to consider Brown’s equitable tolling claim” and reversed

and remanded for such consideration. Id. at 745-46.

      2
        Here, the magistrate’s R&R included what appears to be boilerplate
language explaining the general standard for equitable tolling, and noting that a
“prisoner’s educational deficiencies, ignorance of the law, or lack of legal expertise
is not an extraordinary circumstance and does not equitably toll the limitations
period.” The R&R also stated that “[e]quitable tolling is not available to Petitioner
on the record before the Court.”
       Plainly, this language cannot have been included in response to the
objections by Lowe, since the R&R was issued before she lodged those objections.
Brown requires meaningful consideration of a pro se petitioner’s equitable tolling
arguments; preemptive rejection is quite obviously not meaningful consideration.
At any rate, neither the R&R nor the district court’s summary order mentioned
Lowe’s argument regarding inadequacy of the law library.
       The magistrate judge was correct that limited education, at least on its own,
is insufficient to warrant equitable tolling. See Ford v. Pliler, 590 F.3d 782, 789
(9th Cir. 2009) (“A petitioner’s misunderstanding of accurate information cannot
merit relief, as equitable tolling requires a petitioner to show that some
‘extraordinary circumstance[] beyond [his] control’ cause his late petition, and this
standard has never been satisfied by a petitioner’s confusion or ignorance of the
law alone.” (citations omitted)). However, educational level is relevant in assessing
whether a petitioner was diligent in pursuing his rights, and in evaluating whether
an external factor posed enough of an obstacle to warrant equitable tolling. See
Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011) (explaining that petitioner’s
educational level should be considered in determining whether it was reasonable to
expect him to realize that his counsel was performing inadequately and attempt to
obtain alternate assistance or to litigate himself).

                                           4
      As a pro se petitioner raising equitable tolling arguments for the first time in

response to a magistrate judge’s recommendation that her petition be dismissed as

untimely, Lowe, like Brown, was entitled not only to notice and an opportunity to

respond to the dismissal of her petition3; she was also entitled to reasoned

consideration of her claim and “appropriate development of the record.” Id. at 746;

see also Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000).

      Because the district court abused its discretion in failing to address Lowe’s

equitable tolling claims, we reverse and remand.4 Because we do so based on

claims that were, undisputedly, properly presented both to the district court and on

appeal, we need not reach Lowe’s uncertified claims or rule on the Motion to Take

Judicial Notice in support of them.

      REVERSED and REMANDED.


      3
       Other circuits have held in unpublished opinions that notice of the
opportunity to raise objections to a magistrate’s R&R is adequate to satisfy Day,
547 U.S. at 210. Fitzpatrick v. Monday, 549 Fed. App’x 734, 738 n.2 (10th Cir.
2013); Torres v. Davis, 416 Fed. App’x 480, 482 (6th Cir. 2011); Nixon v. Beard,
361 Fed. App’x 304, 305-06 (3d Cir. 2010); Wogoman v. Abramajtys, 243 Fed.
App’x 885, 890 n.4 (6th Cir. 2007).
      4
        Under Brown, which imposes a procedural requirement, the district court
erred in failing to address each of Lowe’s arguments for equitable tolling – not just
the potentially meritorious ones. We note, however, that we have not recognized a
petitioner’s limited education or routine limits on access to a prison law library as
sufficiently extraordinary circumstances to warrant equitable tolling. See, e.g.,
Vang v. Carey, 171 Fed. App’x 579, 580 (9th Cir. 2006).

                                          5
                                                                              FILED
Lowe v Johnson 10-56201                                                       AUG 29 2014

                                                                           MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, concurring:                                        U.S. COURT OF APPEALS



      I concur with the panel majority’s decision to remand to the district court

with respect to Lowe’s “lack of AEDPA materials” argument in support of

equitable tolling. Although it appears unlikely that the law library where Lowe is

incarcerated in fact has no materials discussing AEDPA’s requirements, the district

court did not address this claim and remand is proper under Brown v. Roe, 279

F.3d 742 (9th Cir. 2002).

      However, remand is not necessary with respect to Lowe’s arguments that her

claims should be equitably tolled due to her “lack of education” and “lack of access

to the law library” claims. Ignorance of the law or lack of education alone are not

sufficiently extraordinary circumstances to warrant equitable tolling. See, e.g.,

Ford v. Pliler, 590 F.3d 782, 789 (9th Cir. 2009); Rasberry v. Garcia, 448 F.3d

1150, 1154 (9th Cir. 2006). Further, the routine restrictions on Lowe’s access to

the prison law library do not constitute extraordinary circumstances making timely

filing impossible under Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005).

Because the “lack of education” and “lack of library access” tolling arguments fail

on their merits, remand on those issues would be futile.
