                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 06 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-35857

              Plaintiff - Appellee,              D.C. Nos.    4:09-cv-00033-SEH
                                                              4:07-cr-00031-SEH
  v.

CODY GORDON CARLSEN,                             MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                        Argued and Submitted June 6, 2011
                                Portland, Oregon

Before: FISHER, GOULD, and PAEZ, Circuit Judges.

       Defendant-Appellant Cody Gordon Carlsen, a federal prisoner, appeals the

district court’s denial of his motion for habeas relief under 28 U.S.C. § 2255.

Carlsen argues that he received ineffective assistance of counsel at sentencing, and

that his sentence must therefore be vacated. The district court denied Carlsen’s



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motion on the ground that it was barred by the one-year statute of limitations

contained in 28 U.S.C. § 2255(f)(1). In the alternative, the district court held that

Carlsen’s petition should be denied on the merits. We reverse the district court’s

denial of Carlsen’s petition and remand for an evidentiary hearing on the issue of

equitable tolling. We also conclude that the court erred in its alternative merits

ruling.

A.    Equitable Tolling

      The judgment of conviction in Carlsen’s federal prosecution was entered on

November 15, 2007. Because Carlsen did not appeal his sentence, the judgment

became final two weeks later, on November 29, 2007. See Fed. R. App. P.

4(b)(1)(A). Carlsen’s filed his federal habeas petition roughly sixteen months

later, on April 3, 2009.

      The federal habeas statute contains a one-year statute of limitations. 28

U.S.C. § 2255(f)(1). A habeas petitioner, however, is entitled to equitable tolling

of the statute of limitations if he can show: “(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way.”

Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo,

544 U.S. 408, 418 (2005)); accord Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.

1999). If a habeas petitioner makes “a good-faith allegation that would, if true,


                                           2
entitle him to equitable tolling,” then he is entitled to an evidentiary hearing on the

issue of equitable tolling. Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006)

(quoting Laws v. Lamarque, 351 F.3d 919, 919 (9th Cir. 2003)) (internal quotation

marks and emphasis omitted).

       Carlsen has alleged facts that demonstrate his reasonable diligence in

pursuing habeas relief. Specifically, Carlsen alleges that he made “repeated

efforts” to contact his attorney “both by mail and phone” to resolve issues related

to his § 2255 motion. The record also reflects that Carlsen filed a letter with the

district court expressing concern with his sentence. Moreover, it appears that

Carlsen filed his § 2255 motion within eighteen days of receiving necessary

information from his attorney. These facts, if true, demonstrate Carlsen’s

diligence. See Holland, 130 S. Ct. at 2565 (concluding that a habeas petitioner

diligently pursued his claim where he “wrote his attorney numerous letters seeking

crucial information and providing direction [and] repeatedly contacted the state

courts, their clerks, and the [state bar association]”); Miles, 187 F.3d at 1107

(holding that a petitioner exercised diligence where he submitted his petition

seventeen days after he was made aware of the deadline and delay was caused by

prison officials).




                                           3
      We also hold that Carlsen has alleged two theories, either of which, if true,

constitute “extraordinary circumstances” and entitle him to equitable tolling.

      a.     Inadequate Access to Legal Resources

      Carlsen alleges, and the government does not dispute, that he was in transit

and without access to legal resources for the first six months of his federal

sentence. “Deprivation of legal materials is the type of external impediment for

which we have granted equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d

1008, 1013 (9th Cir. 2009) (citing Lott v. Mueller, 304 F.3d 918, 924–25) (9th Cir.

2002)); see also Roy, 465 F.3d at 973–75; Whalem/Hunt v. Early, 233 F.3d 1146,

1148 (9th Cir. 2000) (en banc) (per curiam).

      If Carlsen’s allegation of inadequate access to legal resources is true, then

the one-year statute of limitations was suspended until Carlsen had access to legal

materials. United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (“Principles of

equitable tolling usually dictate that when a time bar has been suspended and then

begins to run again upon a later event, the time remaining on the clock is calculated

by subtracting from the full limitations period whatever time ran before the clock

was stopped.”); see also Nino v. Galaza, 183 F.3d 1003, 1006–07 (9th Cir. 1999)

(applying this method to calculate the period of equitable tolling for a habeas




                                           4
petition). In other words, the one-year statute of limitations began running anew

on the date that Carlsen first had access to legal materials.

      To calculate the period of equitable tolling in this case, we first note that

Carlsen’s sentence was imposed on November 15, 2007, and that Carlsen alleges

that he was without legal materials for the first six months of his sentence. If

Carlsen’s allegation is true, then the one-year limitations period started to run on or

around May 15, 2008, and Carlsen’s petition would have been timely when it was

filed on April 4, 2009. Thus, Carlsen is entitled to an evidentiary hearing on the

question of whether and for how long he was without access to legal materials. If

his allegation is true, his petition must be considered timely.

      b.     Attorney Misconduct

      Carlsen also alleges repeated and unsuccessful efforts to consult with his

attorney regarding his habeas petition. Carlsen’s allegations, if true, could entitle

him to equitable tolling on the ground of egregious attorney misconduct. Although

an attorney’s mere negligence is not sufficient to earn equitable tolling, Frye v.

Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001), “instances of attorney misconduct”

that are “far more serious” than negligence can entitle a petitioner to equitable

tolling, Holland, 130 S. Ct. at 2564; see also Spitsyn v. Moore, 345 F.3d 796, 800

(9th Cir. 2003).


                                           5
      Because Carlsen has alleged two distinct theories that, if true, would entitle

him to equitable tolling, he must be afforded an evidentiary hearing on the issue of

equitable tolling.

B.    Merits1

      At the time of his federal prosecution, Carlsen had started to serve—but had

not yet completed—a state sentence for reckless endangerment. It is undisputed

that because this state offense was considered relevant conduct that increased

Carlsen’s federal Guidelines range, Carlsen was entitled to the application of U.S.

Sentencing Guidelines § 5G1.3(b) at sentencing. Had § 5G1.3(b) been properly

applied, the district court would have been instructed to: (1) credit the time Carlsen

served in state custody; and (2) order that Carlsen’s federal and state sentences be

served concurrently. Carlsen’s attorney did not advocate at sentencing for the

application of § 5G1.3(b). Carlsen argues that this error amounted to ineffective

assistance of counsel.

      To succeed on an ineffective assistance of counsel claim, a defendant must

demonstrate that: (1) “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment;”



      1
         For the benefit of the district court and the parties on remand, we address
the district court’s alternative merits holding.

                                           6
and (2) “the deficient performance prejudiced the defense.” Strickland v.

Washington, 466 U.S. 668, 687 (1984). The government concedes—as it

must—that Carlsen’s has satisfied the first prong of the Strickland analysis because

his attorney’s failure to advocate for the application of a relevant sentencing

Guideline fell “outside the wide range of professionally competent assistance.” Id.

at 690.

      Carlsen also satisfies the prejudice prong of the Strickland analysis because

§ 5G1.3(b) directs the sentencing court in determining the advisory Guidelines

range to: (1) credit the defendant’s federal sentence for the time served in state

custody; and (2) impose a sentence to run concurrently with the defendant’s state

sentence. Had Carlsen’s attorney made the district court aware of its obligations

under § 5G1.3(b), there is a reasonable probability that Carlsen would have

received a shorter sentence. We therefore conclude that the district court erred in

its alternative holding that Carlsen’s § 2255 motion should be denied on the merits.

3.    Instructions on Remand

      On remand, the district court is directed to conduct an evidentiary hearing as

soon as reasonably possible on whether Carlsen is entitled to equitable tolling on

either of the two grounds advanced in his petition—(1) inadequate access to legal

resources; or (2) egregious attorney misconduct—and on whether he acted with


                                           7
reasonable diligence. If the district court determines that Carlsen is entitled to

equitable tolling, it is instructed to grant Carlsen’s petition and resentence Carlsen

as soon as practicable. If in resentencing Carlsen the district court imposes the

same sentence, relying on the sentencing factors in 28 U.S.C. § 3553(a), it shall

explain its reasons for varying upward from the advisory sentencing Guidelines

range. If the district court determines that Carlsen is not entitled to equitable

tolling, it shall also state what sentence it would have imposed if it had granted

Carlsen’s § 2255 motion.

      VACATED AND REMANDED.




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