Francisco Manuel Villarruel v. Mike McDonald
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Josephine Staton Tucker.IT IS ORDERED THAT: Judgment shall be entered dismissing the action with prejudice. (mr)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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FRANCISCO MANUEL VILLARRUEL,
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Petitioner,
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v.
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MIKE MCDONALD, Warden,
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Respondent.
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NO. CV 10-7176 JST (FMO)
ORDER ADOPTING FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE
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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein,
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the Magistrate Judge’s Report and Recommendation (R&R), and the Objections to the Report and
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Recommendation. Having made a de novo determination of the portions of the Report and
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Recommendation to which the Objections were directed, the Court concurs with and adopts the
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findings and conclusions of the Magistrate Judge. However, the Court addresses certain of
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petitioner's objections, below.
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Specifically, petitioner notes that the legal documents he needed in order to file his federal
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petition included: (1) his petition for review filed in the California Supreme Court; (2) the California
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Court of Appeal’s decision affirming his judgment; (3) all of the state court decisions denying his
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state habeas petitions; and (4) the case numbers from all of these documents. As discussed in
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the R&R, petitioner contends that he was required to pack all of his property, including these
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documents, on May 21, 2010 to prepare for a prison transfer, and did not receive his property
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back until July 16, 2010, the exact date on which the time to file the instant Petition, including
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statutory tolling, would have expired. Citing Lott v. Mueller, 304 F.3d 918 (9th Cir. 2002), petitioner
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argues that this provides a sufficient basis for equitable tolling. However, entirely lacking is the
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required showing of diligence by Petitioner.
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As thoroughly addressed in the R&R, application of the equitable tolling doctrine requires
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a showing of both diligence and extraordinary circumstances. (See R&R at 8-9.) Here, petitioner
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acknowledges that he was permitted to transport his documents at the time of his transfer. He
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alleges that he did not receive the documents at the new prison until two months later. However,
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petitioner makes no showing that, at any point during those two months, he made any request or
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took any steps whatsoever to obtain the documents. This stands in contrast to those cases in
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which the petitioner either acted with diligence to secure his legal property or showed that an
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attempt to obtain the property would have been futile in light of prison policy. See Espinoza-
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Matthews v. California, 432 F.3d 1021, 1027-28 (9th Cir. 2005) (equitable tolling may apply where
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petitioner provided evidence of repeated requests for access to “legal property” while in
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administrative segregation, along with evidence that requests were rejected); Lott, 304 F.3d at
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921-22 (petitioner denied access to his legal documents during temporary prison transfer where
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evidence showed it was the policy and practice of the prison not to allow transfer of any legal
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documents). In short, while equitable tolling may be appropriate when a prisoner is deprived of
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access to necessary legal documents for an extended period of time during the running of the
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statute of limitations, here petitioner does not show that circumstances beyond his control were
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the cause of his failure to timely file. To hold otherwise would have the effect of allowing routine
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prison transfers to qualify as extraordinary circumstances, a proposition that courts have “uniformly
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and sensibly” rejected. Allen v. Johnson, 602 F. Supp. 2d 724, 727-28, 727 n.4, 728 nn.5-7 (E.D.
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Va. 2009) (collecting cases). Therefore, petitioner has not met his burden of demonstrating that
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he is entitled to equitable tolling, and his petition must be dismissed as untimely.
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Accordingly, IT IS ORDERED THAT:
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Judgment shall be entered dismissing the action with prejudice.
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The Clerk shall serve copies of this Order and the Judgment herein on the parties.
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DATED: September 28, 2011
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_________________________________
JOSEPHINE STATON TUCKER
UNITED STATES DISTRICT JUDGE
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