Ronald Brand v. Lee Baca, No. 2:2012cv09178 - Document 28 (C.D. Cal. 2013)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton re: MOTION to Dismiss PETITION FOR WRIT OF HABEAS CORPOUS; MEMORANDUM OF POINTS AND AUTHORITIES 18 . Petitioner has not shown that extraordinary circumstances exist warranting equitable tolling. Accordingly, the Petition is untimely. IT IS ORDERED that the Petition be dismissed. (rh)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 RONALD BRAND, 12 Petitioner, 13 v. 14 JEFFREY BEARD,1 15 Respondent. 16 17 Ronald Brand ) No. CV 12-09178-VBK ) ) MEMORANDUM AND ORDER ) ) ) ) ) ) ) ) (hereinafter referred to as Petitioner ), a 18 California state prisoner proceeding pro se, filed a Petition for Writ 19 of Habeas Corpus by a Person in State Custody ( Petition ), pursuant 20 to 28 U.S.C. § 2254 on October 25, 2012, in the United States District 21 Court for the Central District of California.2 Petitioner also executed 22 1 23 24 25 26 27 28 The Court grants Respondent s request to substitute Jeffrey Beard, Secretary of the California Department of Corrections and Rehabilitation, as the proper Respondent pursuant to Fed. R. Civ. P. 25(d). See Rule 2, Rules Governing Section 2254 Cases. 2 The Court takes notice that Petitioner signed his Federal Petition on October 10, 2012, which is the earliest he could have turned it over to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379 (1988) (pro se prisoners constructively file pleading when they deliver it to prison authorities for mailing); Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) ( When a prisoner gives prison authorities a habeas petition or other pleading to mail to court, the court deems the petition constructively filed on the date it is signed. ), cert. denied, 132 1 a Consent to Proceed Before a United States Magistrate Judge. In 2 accordance with the Court s Order requiring Respondent to file a 3 response, on February 28, 2013, Respondent filed a Motion to Dismiss 4 Petition for Writ of Habeas; Memorandum of Points and Authorities 5 ( MTD ) and a Notice of Lodging contending that the Petition is barred 6 by the one-year statute of limitations set forth in 28 U.S.C. 7 § 2244(d)(1) as amended by the Anti-Terrorism and Effective Death 8 Penalty Act of 1996 ( AEDPA ), and alternatively that ground one of the 9 Petition is unexhausted and conclusory. Respondent also executed a 10 Consent to Proceed Before a United States Magistrate Judge. On March 11 27, 2013, Petitioner filed an Objection to the Motion to Dismiss 12 ( Obj. ) and a Supplemental [sic] to the Objection to the Motion to 13 Dismiss. 14 Having reviewed the allegations in the Petition and the matters set 15 forth in the record, the Motion to Dismiss, and Petitioner s Opposition, 16 it is ORDERED that the Motion to Dismiss be granted and the Petition be 17 dismissed. 18 19 20 PRIOR PROCEEDINGS On October 21, 2008, Petitioner pleaded no contest in the Los 21 Angeles County Superior Court to twelve counts of identity theft in 22 violation of California Penal Code ( PC ) § 530.5(a) and one count of 23 forgery of an official seal in violation of PC § 472. 24 No. 1 at 4-5; Lodged Document No. 3 at 1.) (Lodged Document Petitioner also admitted he 25 served a prior prison term within the meaning of PC § 667.5(b) for a 26 27 28 S. Ct. 286 (2011). Where applicable, the Court has afforded Petitioner the constructive filing dates. Although, as Respondent notes (MTD at 1 n.3), ultimately it does not make a difference because the Petition is untimely even taking into account the earlier signature dates. 2 1 prior grand theft conviction. (Lodged Document No. 1 at 5.) On that 2 same day, Petitioner was sentenced to a 12-year prison term, the 3 sentence was suspended, and Petitioner was placed on formal probation 4 for five years. 5 at 1.) 6 (Lodged Document No. 1 at 6-10; Lodged Document No. 3 Petitioner did not appeal the judgment. On November 17, 2010, Petitioner s probation was revoked and he was 7 remanded to custody. 8 (Lodged Document No. 1 at 10-11.) On June 29, 2011, counsel for Petitioner filed a petition for writ 9 of habeas corpus in the Los Angeles County Superior Court.3 10 Document No. 2.) (Lodged On August 8, 2011, the court denied the petition 11 because it was untimely and Petitioner had offered no justification for 12 the nearly three-year delay, citing In re Clark, 5 Cal. 4th 750, 783 13 (1993) and In re Seaton, 34 Cal. 4th 193, 199-200 (2004). 14 alternatively denied the petition on the merits. The court (Lodged Document No. 15 3; Lodged Document No. 1 at 14-16.) 16 On October 5, 2011, Petitioner filed a pro se habeas petition in 17 the California Court of Appeal.4 (Lodged Document No. 4.) On October 18 27, 2011, the court denied the petition as untimely and, on the merits, 19 [P]etitioner has not 20 entitlement to relief. 21 presented facts or evidence to demonstrate (Lodged Document No. 5.) On November 10, 2011, a Los Angeles County Superior Court judge 22 found Petitioner to be in violation of probation. 23 1 at 17-18.) (Lodged Document No. He was ordered to serve his 12-year state prison sentence 24 25 26 3 Petitioner is not entitled to an earlier constructive filing date under the prison mailbox rule for this petition because it was filed by counsel. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (2003). 27 4 28 Petitioner signed but did not date this petition. therefore utilizes the filing date on the petition. 3 The Court 1 in county jail under California s Criminal Justice Realignment Act (see 2 PC § 1170(h)). 3 (Lodged Document No. 1 at 18-21.) On December 19, 2011, Petitioner constructively filed a habeas 4 petition in the California Supreme Court. (Lodged Document No. 7.) On 5 May 9, 2012, the court denied the petition with citations to People v. 6 Duvall, 9 Cal. 4th 464, 474 (1995) and In re Swain, 34 Cal. 2d 300, 304 7 (1949). 8 (Lodged Document No. 8 at 2.) Meanwhile, on December 21, 2011, Petitioner filed a notice of 9 appeal in the California Court of Appeal challenging the November 10, 10 2011 finding that Petitioner was in violation of probation. 11 Document No. 6.) (Lodged On May 16, 2012, Petitioner filed a notice of 12 abandonment of his appeal, and on May 18, 2012, the Court of Appeal 13 dismissed his appeal. 14 (Lodged Document No. 6.) On June 15, 2012, Petitioner constructively filed a second habeas 15 petition in the California Supreme Court. (Lodged Document No. 9.) On 16 September 26, 2012, the court denied the petition on the merits with 17 citations to Harrington v. Richter, 526 U.S. -, 131 S. Ct. 770, 785 18 (2011), and Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590 19 (1991). 20 (Lodged Document No. 10 at 2.) The within Petition was constructively filed on October 10, 2012. 21 22 PETITIONER S CONTENTIONS 23 Petitioner contends the following, inter alia: 24 1. California State Supreme Court in Petitioner[ s] view, 25 has violated his [S]ixth and [F]ourteenth Amendment 26 rights ; 27 2. The trial court improperly denied Petitioner s request 28 4 1 to represent himself under Faretta,5 and trial counsel 2 was ineffective by failing to inform Petitioner of his 3 right 4 Petitioner could challenge the trial court s Faretta 5 ruling. to appeal or otherwise perfect an appeal so 6 (See Petition at 5-6; Petition Memoranda at 1-4, 6-11.)6 7 8 DISCUSSION 9 In the Motion to Dismiss, Respondent contends that the Petition 10 should be dismissed on the grounds it is untimely, and because ground 11 one is unexhausted and conclusory. 12 13 A. 14 Since the Petition was filed after the President signed into law The Petition Is Facially Untimely. 15 the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA ) 16 on April 24, 1996, the Court s consideration of the Petition s 17 timeliness is governed by 28 U.S.C. § 2244(d), as amended by the AEDPA. 18 See Calderon v. United States District Court for the Central District 19 of California (Beeler), 128 F.3d 1283, 1287 n.3 (9th Cir. 1997), cert. 20 denied, 522 U.S. 1099 & 523 U.S. 1061 (1998).7 That section provides: 21 (1) A 1-year period of limitation shall apply to an 22 application for a writ of habeas corpus by a person in custody 23 24 5 25 6 26 27 28 Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975) Petitioner attaches two memoranda with overlapping page numbers. For ease of reference, the Court refers to the memoranda by citing the pages consecutively as they are attached to the Petition. 7 Beeler was overruled on other grounds in Calderon v. United States District Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999). 5 1 pursuant to the judgment of a State court. 2 period shall run from the latest of 3 (A) The limitation the date on which the judgment became final by 4 the conclusion of direct review or the expiration of the 5 time for seeking such review; 6 (B) the date on which the impediment to filing an 7 application created by State action in violation of the 8 Constitution or laws of the United States is removed, if 9 the applicant was prevented from filing by such State 10 action; 11 (C) the date on which the constitutional right 12 asserted was initially recognized by the Supreme Court, 13 if the right has been newly recognized by the Supreme 14 Court and made retroactively applicable to cases on 15 collateral review; or 16 (D) the date on which the factual predicate of the 17 claim or claims presented could have been discovered 18 through the exercise of due diligence. 19 (2) The time during which a properly filed application 20 for State post-conviction or other collateral review with 21 respect to the pertinent judgment or claim is pending shall 22 not be counted toward any period of limitation under this 23 subsection. 24 25 In most instances, a state prisoner s AEDPA limitations period will 26 be governed by § 2244(d)(1)(A). It is only in rare instances that, 27 pursuant to § 2244(d)(1)(B)-(D), the limitation period may run from a 28 date later than the date on which judgment becomes final. 6 Baker v. 1 State of California, No. C 99-2088 CRB (PR), 2000 WL 74071 at *1 n.1 2 (N.D. Cal. Jan. 25, 2000). In the Motion to Dismiss, Respondent 3 contends that the running of the limitations period in this case is 4 governed by § 2244(d)(1)(A). (MTD at 4 & n.6.) 5 6 1. 7 8 Application of § 2244(d)(1)(A) Renders the Petition Facially Untimely. Under § 2244(d)(1)(A), the statute began to run at the completion 9 of direct review in the state courts. Consequently, the judgment became 10 final when the time to file an appeal expired. Gonzalez v. Thaler, 565 11 U.S. -, 132 S. Ct. 641, 646, 653-54 (2012); Mendoza v. Carey, 449 F.3d 12 1065, 1067 (9th Cir. 2006). Under California law, Petitioner had 60 13 days in which to file and perfect his appeal. See Cal. R. Ct. 8.308(a). 14 As Petitioner was sentenced on October 21, 2008, his time to appeal 15 expired on December 22, 2008.8 Id.; see also PC § 1237(a) (a sentence 16 and an order granting probation constitute a final judgment for 17 purposes of a defendant s right to appeal).9 Therefore, Petitioner s 18 conviction was final on December 22, 2008, and he had until December 19 22, 2009, in which to file a timely federal habeas petition. 28 U.S.C. 20 21 22 23 24 25 26 27 28 8 The 60th day fell on December 20, 2008, which was a Saturday. Accordingly, the notice of appeal was due the following Monday, December 22, 2008. See Lopez v. Felker, 536 F. Supp. 2d 1154, 1157 & n.3 (C.D. Cal. 2008) (explaining computation of time to file appeal under California Rules of Court). 9 The fact that the trial court suspended the sentence has no bearing on the finality of the conviction. Under California law, when the order granting probation is issued, the clock starts running on any appeal. See People v. Amons, 125 Cal. App. 4th 855, 868-69 (2005); Tresvan v. Martell, No. CV 08-5077-PSG (PLA), 2009 WL 3245702 at *2 n.5 (C.D. Cal. Oct. 6, 2009). Further, Petitioner makes no challenge in the Petition to his subsequent probation violation or otherwise contend that he is entitled to a later finality date based on the probation violation. 7 1 § 2244(d)(1)(A); see Patterson v. Stewart, 251 F.3d 1243, 1246 (9th 2 Cir.), cert. denied, 534 U.S. 978 (2001). Here, Petitioner did not 3 constructively file the within Petition until October 10, 2012, almost 4 three years after the statute of limitations had already expired. 5 Absent statutory or equitable tolling, the within Petition is untimely. 6 7 2. 8 Petitioner Is Not Entitled to an Alternate Start Date of the Statute of Limitations Period. 9 10 11 a. State-Created Impediment. In rare instances, AEDPA provides that its one-year limitations 12 period shall run from the date on which the impediment of filing an 13 application created by state action in violation of the Constitution or 14 laws of the United States is removed, if the applicant was prevented 15 from filing by such state action. 28 U.S.C. § 2244(d)(1)(B). 16 Petitioner has failed to set forth any facts showing that Petitioner is 17 entitled to relief under this provision. 18 19 20 b. Newly Recognized Constitutional Right. AEDPA provides that, if a claim is based upon a constitutional 21 right that is newly recognized and applied retroactively to habeas cases 22 by the United States Supreme Court, the one-year limitations period 23 begins to run on the date which the new right was initially recognized 24 by the United States Supreme Court. 28 U.S.C. § 2244(d)(1)(C). 25 Petitioner has not alleged or forth facts showing that he is entitled 26 to relief under this provision. 27 // 28 // 8 1 2 c. Discovery of Factual Predicate. Under 28 U.S.C. § 2244(d)(1)(D), the statute of limitations begins 3 to run when the factual predicate of Petitioner s claims could have 4 been discovered through the exercise of due diligence. Id. The term 5 factual predicate refers to the facts underlying the claim, not the 6 legal significance of those facts. Hasan v. Galaza, 254 F.3d 1150, 1154 7 n.3 (9th Cir. 2001) ( This is not to say that [petitioner] needed to 8 understand the legal significance of those facts-rather than simply the 9 facts themselves-before the due diligence (and hence the limitations) 10 clock started ticking. ). Due diligence does not require the maximum 11 feasible diligence, but it does require reasonable diligence in the 12 circumstances. Schlueter v. Varner, 384 F.3d 69, 74 (3rd Cir. 2004) 13 (quoting Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004)), cert. 14 denied, 544 U.S. 1037 (2005). 15 Petitioner contends that he was unaware of his Faretta claim until 16 he spoke with an alternate public defender between January and April of 17 2011. (Obj. at 3.) However, Petitioner was well aware of the factual 18 predicate underlying the claim when the trial court denied his request 19 to represent himself in 2008. (Pet. Ex. A, 10/9/08 RT at 3-4.) 20 Petitioner made the request and was present at the hearing, and 21 therefore knew of the factual predicate over six years before the 22 Petition was filed. See, e.g., Kartiganer v. Henderson, No. CV 07-7575 23 JVS (FFM), 2011 WL 3293389, at *3 n.3 (C.D. Cal. June 27, 2011) (because 24 petitioner was present at hearings, he was aware of whatever 25 impropriety may have occurred during either of those hearings at the 26 time of the hearing ), adopted by, 2011 WL 3290361 (C.D. Cal. July 29, 27 2011). Petitioner has therefore failed to set forth sufficient facts 28 showing that he is entitled to relief under this provision. 9 1 B. 2 The running of the AEDPA s one-year time limitation is tolled for Petitioner Is Not Entitled To Statutory Tolling. 3 the time period during which a properly filed application for post4 conviction or other state collateral review is pending in state court. 5 See 28 U.S.C. § 2244(d)(2); Duncan v. Walker, 533 U.S. 167, 173-74, 121 6 S. Ct. 2120 (2001) (the statutory term other collateral review refers 7 to other state collateral review). The statute is tolled during the 8 time period a state post-conviction petition is considered pending 9 between a lower court s decision on the petition and the filing of a new 10 petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223-25, 122 11 S. Ct. 2134 (2002). However, state petitions will only toll the one- 12 year statute of limitations under § 2244(d)(2) if the state court 13 explicitly states that the post-conviction petition was timely or was 14 filed within a reasonable time under state law. Pace v. DiGuglielmo, 15 544 U.S. 408, 410, 419, 125 S. Ct. 1807 (2005). Claims denied as 16 untimely or determined by federal courts to have been untimely in state 17 court will not satisfy the requirements for statutory tolling. 18 Id. Here, Petitioner is not entitled to statutory tolling under 28 19 U.S.C. § 2244(d)(2). Petitioner s state habeas petitions, filed in 2011 20 and 2012 (Lodged Document Nos. 2, 4, 7, 9), have no tolling effect 21 because they were filed well after the period of limitations had already 22 expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.) 23 ( section 2244(d) does not permit the reinitiation of a limitations 24 period that has ended before the state petition was filed ), cert. 25 denied, 540 U.S. 924 (2003); Laws v. Lamarque, 351 F.3d 919, 922 (9th 26 Cir. 2003) (if the first petition is filed after expiration of the 27 limitations period statutory tolling cannot save his claim ); Green v. 28 White, 223 F.3d 1001, 1003 (9th Cir. 2000) (petitioner is not entitled 10 1 to tolling where the limitations period has already run). Thus, 2 Petitioner is not entitled to any statutory tolling and the Petition is 3 untimely unless he is entitled to equitable tolling. 4 5 C. Petitioner Is Not Entitled to Relief Based on Equitable 6 Tolling. 7 1. 8 Applicable Law. The AEDPA s one-year statute of limitations is subject to equitable 9 tolling but only if a petitioner can show (1) that he has been 10 pursuing his rights diligently, and (2) that some extraordinary 11 circumstance stood in his way and prevented timely filing. Holland 12 v. Florida, - U.S. -, 130 S. Ct. 2549, 2562-63 (2010) (quoting Pace, 544 13 U.S. at 418); see also Lawrence v. Florida, 549 U.S. 327, 336, 127 S. 14 Ct. 1079 (2007). Petitioner bears the burden of alleging facts that 15 would give rise to tolling. Pace, 544 U.S. at 418; Hinton v. Pacific 16 Enterprises, 5 F.3d 391, 395 (9th Cir. 1993); Randle v. Crawford, 604 17 F.3d 1047, 1057 (9th Cir.) ( Equitable tolling is only appropriate if 18 extraordinary circumstances beyond a prisoner s control make it 19 impossible to file a petition on time. ) (quotation marks and citation 20 omitted) (emphasis in original), cert. denied, 131 S. Ct. 474 (2010). 21 Equitable tolling is unavailable in most cases, Miles v. Prunty, 22 187 F.3d 1104, 1107 (9th Cir. 1999), and the threshold necessary to 23 trigger equitable tolling [under 24 exceptions swallow the rule. AEDPA] is very high, lest the Miranda v. Castro, 292 F.3d 1063, 1066 25 (9th Cir.) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th 26 Cir. 2000)), cert. denied, 537 U.S. 1003 (2002); Spitsyn v. Moore, 345 27 F.3d 796, 799 (9th Cir. 2003); see Beeler, 128 F.3d at 1288 (noting that 28 [e]quitable tolling will not be available in most cases, as extensions 11 1 of time will only be granted if extraordinary circumstances beyond a 2 prisoner s control make it impossible to file a petition on time. ) 3 [W]hen external forces, rather than a petitioner s lack of diligence, 4 account for the failure to file a timely claim, equitable tolling may 5 be appropriate. Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002) 6 (quoting Miles, 187 F.3d at 1107). 7 8 2. 9 10 Petitioner Has Not Met His Burden Entitling Him to Equitable Tolling. Petitioner alleges that he is entitled to equitable tolling of the 11 statute of limitations because he did not have access to the transcript 12 of the Marsden hearing10 in his case until June 2011. (Obj. at 3.) 13 However, he does not explain how the Marsden hearing transcript was 14 necessary to raise his Faretta claim, as Marsden and Faretta are based 15 on different constitutional and procedural principles. See Robinson v. 16 Kramer, 588 F.3d 1212, 1216 (9th Cir. 2009) ( At the trial level, 17 Faretta and Marsden requests are as distinct as would be a request to 18 be allowed to drive a car from a request for a driver to drive it. ), 19 cert. denied, 131 S. Ct. 83 & 131 S. Ct. 108 (2010). As mentioned, 20 although Petitioner initially asked the court about representing himself 21 during the September 19, 2008 Marsden hearing, he withdrew that request. 22 (Pet. Ex. A, 9/19/08 RT at 5-6.) His actual request to represent 23 himself was raised and denied on October 9, 2008. (Pet. Ex. A, 10/9/08 24 RT at 3-4.) Under these circumstances, Petitioner has not shown how the 25 Marsden hearing transcript would have been necessary to file a federal 26 10 27 28 A Marsden hearing is a California state court procedure to replace existing appointed counsel, heard outside the presence of the prosecutor and the jury, based on allegations of ineffective assistance. People v. Marsden, 2 Cal. 3d 118 (1970). 12 1 petition based on Faretta, or that the relevant documents could not have 2 been procured later if needed. Chaffer v. Prosper, 592 F.3d 1046, 1049 3 (9th Cir. 2010) (per curiam) (allegations of lack of access to legal 4 file insufficient to warrant equitable tolling because inmate failed to 5 point to specific instances where he needed a particular document); 6 Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1014 (9th Cir.) (suggesting 7 a diligent inmate wishing to raise a Faretta claim who did not have 8 possession of his legal materials could have prepared a basic form 9 habeas petition and filed it to satisfy the AEDPA deadline ), cert. 10 denied, 558 U.S. 897 (2009); Kartiganer, 2011 WL 3293389, at *3 n.3, *5 11 (alleged failure to receive Marsden hearing transcript at an earlier 12 date did not justify equitable tolling because petitioner was at the 13 hearing and he failed to explain why the transcript was required to file 14 a federal habeas petition on time). Finally, even if the Court were to 15 allow tolling for the time up until Petitioner allegedly acquired access 16 to the transcript in June 2011, he does not explain the one year, four 17 month delay that followed until he filed the Petition. 18 Petitioner further contends his attorney failed to advise him of 19 his appellate rights and seek a certificate of probable cause ( CPC ).11 20 (Obj. at 4.) Relatedly, petitioner also appears to contend that because 21 he was not allowed to go pro-per while in custody, he had to rely on 22 appointed counsel who in turn caused the untimeliness. 23 Neither of these circumstances constitute 24 circumstance justifying equitable tolling. an (Obj. at 4-5.) extraordinary See Randle, 604 F.3d at 25 1056-58 (rejecting claim for equitable tolling based on counsel s 26 alleged failure to perfect appeal and incorrect advice with respect to 27 11 28 A CPC is a necessary predicate under state law to filing an appeal after entering a plea. See Cal. Rules of Court 8.304(b). 13 1 the time frame in which to file a state habeas petition); Perez v. 2 Hedgpeth, No. CV F 06-00846 AWI DLB HC, 2009 WL 174145, at *5 (E.D. Cal. 3 Jan. 23, 2009) (trial counsel s failure to advise habeas petitioner, who 4 pleaded guilty, of right to appeal and/or ability to seek collateral 5 review does not present extraordinary circumstance justifying equitable 6 tolling). Further, even if petitioner s attorney was negligent, 7 negligence generally does not constitute an extraordinary circumstance 8 sufficient to warrant equitable tolling. See, e.g., Lawrence, 549 U.S. 9 at 336 (attorney miscalculation of limitations period insufficient to 10 warrant equitable tolling); Miranda, 292 F.3d at 1068 (appellate 11 attorney s provision of erroneous information regarding deadline to file 12 habeas petition did not constitute extraordinary circumstance); Frye v. 13 Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (miscalculation of 14 limitations period by counsel and counsel s negligence in general do not 15 constitute extraordinary circumstances sufficient to warrant equitable 16 tolling), cert. denied, 535 U.S. 1055 (2002). Rather, attorney 17 misconduct may constitute an extraordinary circumstance warranting 18 equitable tolling only where the conduct is sufficiently egregious. 19 Spitsyn, 345 F.3d at 800, 801 (equitable tolling warranted where 20 attorney was hired nearly a full year in advance of the deadline but 21 completely failed to prepare and file a petition, was contacted by 22 petitioner and his mother numerous times by telephone and in writing, 23 and retained 24 limitations). the file beyond the expiration of the statute of Petitioner has not shown that his attorney s conduct was 25 sufficiently egregious, or that it was the cause of the delayed filing 26 of the instant Petition. 27 Randle, 604 F.3d at 1058. Finally, Petitioner contends he was ignorant of the applicable time 28 limitations. (Obj. at 4-5.) A petitioner s lack of legal knowledge, no 14 1 matter what its origin, has not been held to provide an excuse for 2 failing to timely file a habeas petition. Ford v. Pliler, 590 F.3d 782, 3 789 (9th Cir. 2009), cert. denied, 131 S. Ct. 77 (2010); Rasberry v. 4 Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). It is clear that pro se 5 status, on its own, is not enough to warrant equitable tolling. Roy 6 v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006) (citing Johnson v. United 7 States, 544 U.S. 295, 311 (2005)), cert. denied, 549 U.S. 1317 (2007). 8 Petitioner has not shown that extraordinary circumstances exist 9 warranting equitable tolling. Accordingly, the within Petition is 10 untimely.12 11 ACCORDINGLY, IT IS ORDERED that the Petition be dismissed. 12 13 DATED: 5/30/2013 14 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 12 26 27 28 Because the Court concludes that the Petition is clearly untimely, it need not address Respondent s alternative basis for dismissal, that ground one is unexhausted and conclusory. See Reed v. Gonzalez, No. EDCV 12-650 JST (FFM), 2012 WL 6967251, at *2 n.3 (C.D. Cal. Nov. 15, 2012), adopted by, 2013 WL 395042 (C.D. Cal. Jan. 27, 2013). 15

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