Yang v. Archuleta (10th Cir. 4/22/08)

O'BRIEN, McKay, Gorsuch

In federal habeas corpus petition, filed outside the one-year filing period, prisoner argued that lack of English was "extraordinary circumstance," justifying equitable tolling.  10th Cir rejects 2d and 9th cir caselaw, finds language barriers do not constitute an extraordinary circumstance. Contra Mendoza v. Carey, 449 F.3d 1065, 1069 (9th Cir. 2005); Diaz v. Kelly, 515 F.3d 149 (2d Cir. 2008).

http://ca10.washburnlaw.edu/cases/2008/04/07-1459.pdf

Context: federal habeas corpus petition, convicted of 1st degree sexual assault, 2d degree kidnapping - argued for equitable tolling of AEDPA's one-year filing requirement.

1.  Rejected 9th and 2d Cir - 10th Cir consistently refuses to consider language barriers as an exceptional circumstance; after all, most pro se petitioners would need a lawyer's help to understand the process. Also, he did not claim complete unfamiliarity with English.

   Yang relies principally on Mendoza v. Carey, in which the Ninth Circuit held “[the] combination of (1) a prison law library’s lack of Spanish-language legal materials, and (2) a petitioner’s inability to obtain translation assistance before the one-year deadline, could constitute extraordinary circumstances.” 449 F.3d 1065, 1069 (9th Cir. 2005). The Second Circuit reached a similar result in Diaz v. Kelly, 515 F.3d 149 (2d Cir. 2008).

   We have taken a seemingly contrary position. In Laurson v. Leyba, we rejected the proposition that another type of language deficiency, petitioner’s dyslexia, constituted extraordinary circumstances sufficient to warrant equitable tolling. 507 F.3d 1230, 1232 (10th Cir. 2007). Our conclusion cited Turner v. Johnson, a Fifth Circuit age discrimination case which held unfamiliarity with the law due to illiteracy does not toll a limitations period “whether the unfamiliarity is due to illiteracy or any other reason.” 177 F.3d 390, 392 (5th Cir.1999).

   Though we have not published a decision directly addressing proficiency in the English language, our unpublished decisions have consistently and summarily refused to consider such a circumstance as extraordinary, warranting equitable tolling. Gomez v. Leyba, a case remarkably similar to the one before us, is instructive. 242 Fed. Appx. 493 (10th Cir. 2007).6 In Gomez, the petitioner requested a COA arguing his delay in filing his habeas petition “should be excused because (1) he did not receive appointed counsel to help him file ahabeas application, (2) the attorney who assisted him with his 35(b) motion did not advise him on how to file a habeas application, and (3) he is unfamiliar with the English language.” Id. at 495 Based on Turner and our prior unpublished decisions,7 we concluded Gomez failed to allege “extraordinary circumstances warranting equitable tolling.” Id.

   Here, Yang states only that English is his second language, not that he cannot speak or write it. While he states he had an interpreter in the state court proceedings, he does not explain how he filed his 2000 pro se state postconviction pleadings from the same facility he has occupied throughout the relevant time period. We do not doubt Yang’s need for assistance in understanding the legal process. But such is common for the majority of pro se prisoners, whether or not they have English deficits. See Marsh, 223 F.3d 1217, 1220) (ignorance of the law not extraordinary); Miller v. Marr, 141 F.3d 976 (10th Cir. 1998) (lack of legal assistance not extraordinary). Even less surprising is the absence of written notice or law books in Yang’s first language. This does not create a state imposed impediment, however, as the Colorado Department of Corrections is under no duty to provide access to legal materials in a prisoner’s preferred language.8 Indeed, Yang does not allege he can read Hmong. Yang’s allegations fall far short of the facts needed to demonstrate extraordinary circumstances.9

2.  No due diligence, because no showing of "independent and diligent efforts to overcome [the language problem] by alternative means."

   Even under the Ninth and Second Circuits’ standards espoused by Yang, a petitioner’s language deficiency must be coupled with proof of independent and diligent effort to overcome the prisoner’s disabilities by alternative means. See Mendoza, 449 F.3d at 1070 (A petitioner must demonstrate “at a minimum . . . that during the running of the AEDPA time limitation, he was unable, despite diligent efforts, to procure either legal materials in his own language or translation assistance from an inmate, library personnel, or other source.”); Diaz, 515 F.3d at 154 (diligence must include an effort to contact someone who speaks his or her language outside the prison to assist, as well as an effort to find assistance within the prison).

Atty: pro se

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