Porter v. Ollison, No. 07-55305, involved a state prosecution for being a felon in possession of a firearm. The court of appeals vacated the denial of petitioner's habeas petition, on the ground that further development of the facts may ultimately show that petitioner was or was not entitled to equitable tolling because of lack of diligence or because his former attorney's egregious conduct did not prevent petitioner from filing a timely federal petition.
As the court wrote: "James Porter III was found guilty of being a felon in possession of a firearm and sentenced by a California court to a term of incarceration of 25 years to life. In his pro se federal habeas corpus petition, Porter contends that there was insufficient evidence to support his conviction and that his trial counsel was ineffective for failing to object to certain evidence and a jury instruction. The merits of Porter's habeas petition are not before this court. The only question is whether, on preliminary review, the federal habeas petition was properly dismissed as untimely without responsive briefing and an evidentiary hearing. The principal issue is the possible application of equitable tolling based on misconduct by an attorney who resigned from the State Bar of California (the "Bar") while facing disciplinary proceedings for running a habeas corpus "writ mill." On preliminary review, it cannot be conclusively determined that the federal petition was untimely. For the reasons that follow, we vacate the district court order denying Porter's habeas petition as untimely and remand on the ground further factual development will be necessary before a conclusion can be made with respect to the timeliness of Porter's petition."
- Full Text of Porter v. Ollison, No. 07-55305