Steven Cuellar v. J. SOTO, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN CUELLAR,
Petitioner-Appellant,
v.
J. SOTO, Warden,
Respondent-Appellee.
No. 14-55005
D.C. No. 2:12-cv-06036-JFW-FFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Steven Cuellar appeals from the district court’s order dismissing his 28
U.S.C. § 2254 habeas corpus petition as untimely. We have jurisdiction under 28
U.S.C. § 2253. We review de novo, Stancle v. Clay, 692 F.3d 948, 952-53 (9th
Cir. 2012), and we reverse.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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In relevant part, the district court concluded that Cuellar was not entitled to
statutory tolling for any period after the superior court denied his second habeas
petition because his third habeas petition, filed approximately three months later in
the California Supreme Court, was untimely. After the district court’s order, and
in response to a certified question posed by this court, the California Supreme
Court decided Robinson v. Lewis, 9 Cal. 5th 883, 901 (2020), which announced a
120-day “safe harbor” for gap tolling between California habeas petitions. Under
Robinson, as the parties agree, Cuellar is entitled to statutory tolling from his
second petition’s filing until his third petition’s denial. See 28 U.S.C.
§ 2244(d)(2); Evans v. Chavis, 546 U.S. 189, 192-93 (2006). With the benefit of
this tolling period, together with the time the limitations period was tolled while
Cuellar’s first habeas petition was pending, Cuellar’s § 2254 petition filed on
February 11, 2013, was timely.
We further hold that the district court erred in treating Cuellar’s pro se
§ 2254 petition filed in February 2013 as an amended pleading that wholly
superseded the first petition. “A document filed pro se is to be liberally construed,
and a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d
886, 889-90 (9th Cir. 2008) (internal quotation marks omitted). Cuellar’s filings,
including his letters requesting the opportunity to exhaust additional claims and his

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labeling his second petition “supplemental grounds,” indicated his intention to
supplement his initial petition rather than supersede it. Accordingly, the district
court is instructed to review the merits of the claims raised in Cuellar’s original
§ 2254 petition and supplemental § 2254 petition.
REVERSED and REMANDED.

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