                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 1 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOHNNY LEE JONES III,                           No. 16-16528

                Petitioner-Appellant,           D.C. No. 3:15-cv-00320-HDM

 v.
                                                MEMORANDUM*
TIMOTHY FILSON and ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,

                Respondents-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                  Howard D. McKibben, District Judge, Presiding

                           Submitted October 23, 2017**

Before:      LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.

      Nevada state prisoner Johnny Lee Jones III appeals pro se from the district

court’s order dismissing his petition under 28 U.S.C. § 2254 as untimely. We have

jurisdiction under 28 U.S.C. § 2253, and we vacate and remand for further


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3. Jones’s motion for oral argument
is denied.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
proceedings on equitable tolling.

      Jones first contends that his petition is timely under 28 U.S.C. § 2244(d)(1)

because his trial counsel’s failure to pursue a direct appeal deferred the

commencement of the one-year limitations period under the Antiterrorism and

Effective Death Penalty Act (“AEDPA”). Our decision in Randle v. Crawford,

604 F.3d 1047 (9th Cir. 2010), forecloses Jones’s contentions that the one-year

AEDPA limitations period commenced on the date the Nevada Supreme Court

dismissed his untimely notice of appeal or on the date that the Nevada Supreme

Court granted him relief pursuant to Lozada v. State, 871 P.2d 944 (Nev. 1994).

See Randle, 604 F.3d at 1055-57.

      Jones also contends that the district court erred by rejecting his equitable

tolling arguments. To establish entitlement to equitable tolling, Jones must show

“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance 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)).

      Here, the signature and certification on Jones’s first state habeas petition

indicate that Jones may have submitted his petition for mailing as early as

December 8, 2006, approximately ten days before the expiration of the AEDPA

limitations period, and he filed a federal habeas petition approximately two months


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after the conclusion of his state habeas proceedings. If Jones establishes an

entitlement to tolling for any amount of time during the limitations period, that

time is subtracted from the total number of days that have passed from the date on

which the AEDPA limitations period began to run. See Grant v. Swarthout, 862

F.3d 914, 918 (9th Cir. 2017); see also Gibbs v. Legrand, 767 F.3d 879, 891-92

(9th Cir. 2014) (applying stop-clock rule to equitable tolling of AEDPA limitations

period). “If, after [the days during a tolled period] are subtracted, less than 365

days have passed,” Jones’s petition is timely. Grant, 862 F.3d at 918.

      Jones seeks equitable tolling based on (1) the alleged destruction of his trial

transcripts, (2) his use of certain medication from December 2005 through January

2007, and (3) his trial counsel’s failure to file a direct appeal. We do not disturb

the district court’s determinations regarding Jones’s trial transcript claim. With

regard to the remaining two bases, we remand for further proceedings.

       Jones submitted an affidavit explaining that after sentencing he began

receiving monthly injections of an anti-psychotic medication that caused extreme

confusion. If Jones demonstrates that the medication incapacitated him for even

short periods of time and prevented him from filing a habeas petition, the

limitations period would be tolled for those periods. See Gibbs, 767 F.3d at 892.

In the absence of specific controverting evidence from the state, Jones’s allegations

are sufficient, under the circumstances, to warrant further factual development of


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the record on this claim. See Orthel v. Yates, 795 F.3d 935, 940-41 (9th Cir. 2015).

      With respect to Jones’s arguments regarding his counsel’s conduct, the

district court correctly recognized that “garden variety claim[s] of excusable

neglect”—such as miscalculating a deadline or filing an untimely appeal—are not

extraordinary circumstances warranting equitable tolling. See Gibbs, 767 F.3d at

885 (alteration in original) (quoting Holland, 560 U.S. at 651-52). Construing his

pro se briefing broadly, as we must, see Roy v. Lampert, 465 F.3d 964, 970 (9th

Cir. 2006), Jones also alleges that his counsel routinely failed to respond to letters

and inquiries regarding a direct appeal and incorrectly informed Jones’s family that

he had filed a direct appeal on Jones’s behalf. The district court failed to consider

whether these allegations are supported adequately in the record or amount to

client abandonment that would warrant equitable tolling. See Rudin v. Myles, 781

F.3d 1043, 1055-56 (9th Cir. 2015).

      Because the district court did not consider these aspects of Jones’s

arguments regarding his use of medication and his counsel’s conduct, we remand

for further proceedings on those bases for equitable tolling. To the extent the

district court determines that Jones’s use of medication or his counsel’s conduct

amount to extraordinary circumstances, the district court must reassess Jones’s

diligence with respect to those circumstances. See Grant, 862 F.3d at 923 (holding

that a petitioner is not required to show diligence during all of the 365 days


                                           4                                     16-16528
AEDPA provides for filing because the diligence inquiry is primarily concerned

with diligence “at the time [petitioner’s] efforts were being thwarted,” i.e., during

the period or periods for which equitable tolling is sought (quoting Gibbs, 767 F.3d

at 802)).

      VACATED and REMANDED.




                                          5                                    16-16528
