Brian Rayvan Johnson v. Cynthia Tamnkins, No. 2:2012cv06620 - Document 12 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jean P Rosenbluth, DENYING FIRST AMENDED PETITION AND DISMISSING ACTION WITH PREJUDICE. IT THEREFORE IS ORDERED that Judgment be entered denying the First Amended Petition and dismissing this action with prejudice. (rla)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRIAN RAYVAN JOHNSON, 12 Petitioner, 13 14 vs. CYNTHIA TAMPKINS, Warden, 15 Respondent. 16 17 18 ) ) ) ) ) ) ) ) ) ) Case No. CV 12-6620-JPR MEMORANDUM OPINION AND ORDER DENYING FIRST AMENDED PETITION AND DISMISSING ACTION WITH PREJUDICE BACKGROUND On July 31, 2012, Petitioner filed a Petition for Writ of 19 Habeas Corpus by a Person in State Custody. On August 3, 2012, 20 the Court dismissed the Petition with leave to amend because it 21 suffered from three deficiencies: (1) Petitioner did not date or 22 sign the Petition; (2) the Petition appeared to include 23 unexhausted claims; and (3) the Petition appeared to be time 24 barred. On September 5, 2012, Petitioner filed a First Amended 25 Petition. The FAP was signed and dated, so Petitioner had 26 corrected the first deficiency. He also appeared to have 27 clarified that he intended to raise only those claims he had 28 raised on direct appeal. (See FAP at 5 (noting See Attachment 1 1 for grounds raised and attaching opening brief on appeal).) 2 Petitioner had not adequately demonstrated, however, that the FAP 3 was not time barred. Accordingly, on September 12, 2012, the 4 Court ordered Petitioner to show cause in writing no later than 5 October 9 why the FAP should not be dismissed as untimely. On 6 October 5, 2012, Petitioner filed a Response to the Order to Show 7 Cause. On October 11, 2012, the Court ordered Respondent to file 8 a reply to Petitioner s Response, which she did on October 30. 9 The parties have consented to the jurisdiction of the undersigned 10 judge. 11 12 DISCUSSION Under the Antiterrorism and Effective Death Penalty Act of 13 1996 ( AEDPA ), see 28 U.S.C. § 2244(d): 14 (1) A 1-year period of limitation shall apply to an 15 application for a writ of habeas corpus by a person in 16 custody pursuant to the judgment of a State court. 17 limitation period shall run from the latest of-- 18 (A) The the date on which the judgment became 19 final by the conclusion of direct review or the 20 expiration of the time for seeking such review; 21 (B) the date on which the impediment to 22 filing an application created by State action in 23 violation of the Constitution or laws of the United 24 States is removed, if the applicant was prevented 25 from filing by such State action; 26 (C) the date on which the constitutional 27 right asserted was initially recognized by the 28 Supreme Court, if the 2 right has been newly 1 recognized 2 retroactively applicable to cases on collateral 3 review; or 4 (D) by the Supreme Court and made the date on which the factual predicate 5 of the claim or claims presented could have been 6 discovered through the exercise of due diligence. 7 (2) The time during which a properly filed 8 application for State post-conviction or other collateral 9 review with respect to the pertinent judgment or claim is 10 pending 11 limitation under this subsection. 12 Petitioner does not dispute that his conviction became final shall not be counted toward any period of 13 on March 15, 2011, 90 days after the state supreme court denied 14 review, on December 15, 2010. See Merolillo v. Yates, 663 F.3d 15 444, 454 n.5 (9th Cir. 2011), cert. denied, 80 U.S.L.W. 3565 16 (U.S. Oct. 1, 2012) (No. 11-1094).1 Nor does he contend that he 17 is entitled to a later trigger date for any reason. Thus, 18 Petitioner had until March 15, 2012, to file his federal 19 Petition. Petitioner did not file the Petition until July 31, 20 2012, four and a half months late, and he did not constructively 21 file the FAP until August 29, 2012, five and a half months late. 22 No basis for statutory tolling under § 2244(d)(2) exists, as 23 Petitioner apparently did not file any state habeas petitions. 24 (FAP at 3.) Petitioner has attached to the FAP and his Response 25 26 1 In the FAP, Petitioner states that review was denied on 27 October 14, 2010. (See FAP at 3.) But the Court s review of the California Appellate Courts Case Information website indicates 28 that review was denied on December 15, 2010. 3 1 to the OSC documents that he argues show his entitlement to 2 equitable tolling. (Response at 3.) As the Court explained to 3 Petitioner in its Order dismissing the Petition with leave to 4 amend and in the OSC, under certain circumstances, a habeas 5 petitioner may be entitled to equitable tolling, see Holland v. 6 Florida, 560 U.S. __, 130 S. Ct. 2549, 2560, 177 L. Ed. 2d 130 7 (2010), but only if he shows that (1) he has been pursuing his 8 rights diligently and (2) some extraordinary circumstance stood 9 in his way, see Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. 10 Ct. 1807, 1814, 161 L. Ed. 2d 669 (2005). 11 Petitioner cannot show either. He attached to the FAP 12 letters from his attorney on direct appeal, notifying him of the 13 state courts decisions. In the December 20, 2010 letter letting 14 Petitioner know that the state supreme court had denied his 15 petition for review, his attorney explained, in bolded lettering, 16 that he must file any federal habeas petition by one year and 90 17 days after the date of the decision, which was December 15, 18 2010. (FAP at 133.)2 Thus, even though Petitioner complains 19 that he is a layman without any understanding of the law 20 (Response at 1), he was on clear notice that he had to file his 21 federal Petition no later than March 15, 2012. 22 Petitioner claims that he was unable to do so because he did 23 not have any law-library access during which he could complete 24 the Petition. He states that his work assignment conflicted with 25 26 2 Petitioner did not number the documents he attached to his 27 FAP or his Response to the OSC. Accordingly, the Court has used the pagination provided by the Court s Case Management/Electronic 28 Court Filing system. 4 1 the hours his facility was provided law-library access, and thus 2 he had to go to work instead of the library or be considered as 3 a program failure and be disciplined accordingly. 4 2.) (Response at The problem is that the documents Petitioner has submitted 5 appear to show that as of mid-December 2011 he was assigned to a 6 work crew that had Sundays and Mondays, when the library was 7 closed, off and worked during the times the library was available 8 to those in his group. (Response at 4-11.) But even if the 9 Court credits all the evidence Petitioner has provided, his 10 showing falls short of demonstrating entitlement to the necessary 11 four and a half months of tolling (or more, if the filing of his 12 original unverified Petition is not the operable date but rather 13 the filing of the FAP). 14 15, 2012. Petitioner s AEDPA deadline was March It s unclear which group Petitioner was in in terms of 15 access to the law library, but it appears to have been either A 16 (his work and privilege group) or B (his housing unit). 17 (Response at 4.) The documents he has submitted show that 18 because of his job, he would not have had any library access in 19 January or February 2012 if he was in group B and would have been 20 able to go only on Tuesday, February 28, for three evening hours 21 if he was in group A. (Response at 6-7.) For March 1 through 22 14, 2012, leading up to his March 15 due date, he would not have 23 been able to access the library at all if he was in group A and 24 would have been able to go on two evenings, March 6 and 13, if he 25 was in group B. Even giving Petitioner every benefit of the 26 doubt and assuming that he would be entitled to equitable tolling 27 for the two and a half months from January 1 to March 15, 2012, 28 his Petition was still at least two months late. 5 The calendars 1 show that both group A and group B had access to the law library 2 several evenings in late March and throughout April and May 2012. 3 (Response at 8-10.) Thus, even under the most generous of 4 calculations, he would not have been entitled to any further 5 tolling. And Petitioner has submitted no evidence to show that 6 he lacked library access before he began his current job, in mid7 December 2011.3 8 Because he had at least some access to the prison law 9 library during the relevant period, his claim fails. Cf. Ramirez 10 v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (complete lack of 11 access to legal files might justify equitable tolling); see Hall 12 v. Warden, 662 F.3d 745, 752 (6th Cir. 2011) (holding that 13 petitioner s lack of access to trial transcripts coupled with 14 pro se status and limited access to law library insufficient to 15 warrant equitable tolling), cert. denied, 81 U.S.L.W. 3164 (U.S. 16 Oct. 1, 2012) (No. 11-10643). Nor is Petitioner entitled to 17 equitable tolling simply because he didn t understand the law 18 himself and needed help from a fellow prisoner. (Response at 1); 19 see Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) 20 (prisoner s pro se status, law library missing a handful of 21 reporter volumes, and reliance on inmate helpers who were 22 transferred or too busy to attend to his petitions not 23 extraordinary circumstances given the vicissitudes of prison 24 life ); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) 25 26 3 Petitioner did not submit the library calendar for December 27 2011. Because as explained herein his Petition is at least two months late, an extra half-month of tolling would not make a 28 difference in the outcome of the case. 6 1 (pro se petitioner s lack of legal sophistication insufficient). 2 For all these reasons, Petitioner is not entitled to enough 3 equitable tolling to render the FAP (or the original Petition) 4 timely. 5 6 ORDER IT THEREFORE IS ORDERED that Judgment be entered denying the 7 First Amended Petition and dismissing this action with prejudice. 8 9 10 DATED: November 5, 2012 11 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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