(HC) Vaughn v. Diaz, No. 1:2012cv01231 - Document 20 (E.D. Cal. 2012)
Court Description: ORDER substituting Ralph M. Diaz as Respondent; FINDINGS and RECOMMENDATIONS re 13 MOTION to DISMISS signed by Magistrate Judge Barbara A. McAuliffe on 12/4/2012. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 1/7/2013. (Lundstrom, T)
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(HC) Vaughn v. Diaz Doc. 20 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 RAY LEE VAUGHN, 13 Petitioner, 14 v. 15 RALPH M. DIAZ, Warden, 16 Respondent. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) 1:12-cv—01231-LJO-BAM-HC ORDER SUBSTITUTING RALPH M. DIAZ AS RESPONDENT FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOC. 13) FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION (DOC. 13), DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY (DOC. 1), AND DIRECT THE ENTRY OF JUDGMENT FOR RESPONDENT 20 FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 21 22 23 Petitioner is a state prisoner proceeding pro se and in 24 forma pauperis with a petition for writ of habeas corpus pursuant 25 to 28 U.S.C. § 2254. 26 Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 27 302 and 304. 28 dismiss the petition as untimely, which was filed on October 1, The matter has been referred to the Pending before the Court is Respondent’s motion to 1 Dockets.Justia.com 1 2012. 2 Respondent filed a reply on November 16, 2012. Petitioner filed opposition on October 11, 2012, and 3 I. 4 Preliminarily, the Court notes that Respondent requests Substitution of Respondent 5 substitution of the named Respondent because the current warden 6 of Petitioner’s institution of confinement, the California 7 Substance Abuse Treatment Facility (CSATF), is Ralph M. Diaz. 8 9 Respondent requested that the substitution occur pursuant to Fed. R. Civ. P. 25(d), which provides that a court may at any 10 time order substitution of a public officer who is a party in an 11 official capacity whose predecessor dies, resigns, or otherwise 12 ceases to hold office. 13 The Court concludes that Ralph M. Diaz, Warden at CSATF, is 14 an appropriate respondent in this action, and that pursuant to 15 Fed. R. Civ. P. 25(d), he should be substituted in place of the 16 California Department of Corrections. 17 18 Accordingly, it is ORDERED that the Clerk SUBSTITUTE Ralph M. Diaz, Warden, as Respondent in this action. 19 II. 20 Respondent has filed a motion to dismiss the petition on the 21 ground that Petitioner filed his petition outside of the one-year 22 limitation period provided for by 28 U.S.C. § 2244(d)(1). 23 Propriety of a Motion to Dismiss the Petition Rule 4 of the Rules Governing Section 2254 Cases in the 24 United States District Courts (Habeas Rules) allows a district 25 court to dismiss a petition if it “plainly appears from the face 26 of the petition and any exhibits annexed to it that the 27 petitioner is not entitled to relief in the district court....” 28 The Ninth Circuit has allowed respondents to file motions to 2 1 dismiss pursuant to Rule 4 instead of answers if the motion to 2 dismiss attacks the pleadings by claiming that the petitioner has 3 failed to exhaust state remedies or has violated the state’s 4 procedural rules. 5 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 6 a petition for failure to exhaust state remedies); White v. 7 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 8 review a motion to dismiss for state procedural default); Hillery 9 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). See, e.g., O’Bremski v. Maass, 915 F.2d 418, 10 Thus, a respondent may file a motion to dismiss after the Court 11 orders the respondent to respond, and the Court should use Rule 4 12 standards to review a motion to dismiss filed before a formal 13 answer. 14 See, Hillery, 533 F. Supp. at 1194 & n.12. In this case, Respondent's motion to dismiss addresses the 15 untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1). 16 The material facts pertinent to the motion are mainly to be found 17 in copies of the official records of state judicial proceedings 18 which have been provided by the parties, and as to which there is 19 no factual dispute. 20 answer, and because Respondent's motion to dismiss is similar in 21 procedural standing to a motion to dismiss for failure to exhaust 22 state remedies or for state procedural default, the Court will 23 review Respondent’s motion to dismiss pursuant to its authority 24 under Rule 4. Because Respondent has not filed a formal 25 III. 26 On March 26, 2008, Petitioner was convicted in the Kern 27 County Superior Court (KCSC) of two counts of forcibly committing 28 a lewd or lascivious act upon a child under the age of fourteen Procedural Summary 3 1 (counts one and two) in violation of Cal. Pen. Code § 288(b) and 2 a single count of first degree burglary (count three) in 3 violation of Cal. Pen. Code § 460. 4 found that pursuant to Cal. Pen. Code § 667.61(a), Petitioner 5 committed the burglary with the intent to violate Cal. Penal Code 6 § 288(a) or 288(b)(1). 7 indeterminate state prison term of twenty-five years to life on 8 count one, and concurrent terms of eight and six years, 9 respectively, on counts two and three. 10 11 12 13 (LD 1.)1 The jury further Petitioner was sentenced in 20082 to an The court stayed execution of sentence on counts two and three. (LD 1-2.) On January 27, 2010, the California Court of Appeal, Fifth Appellate District (CCA) affirmed the judgment. (LD 2.) On March 3, 2010, Petitioner sought review in the California 14 Supreme Court (CSC), which was denied on April 14, 2010. (LD 15 3-4.) 16 On June 26, 2010,3 Petitioner filed a petition for writ of 17 18 19 20 21 22 23 24 1 “LD” refers to documents lodged by Respondent in support of the motion to dismiss. 2 Respondent states that Petitioner was originally convicted of these offenses and an additional count of child molestation on July 14, 1997. The Court takes judicial notice of the docket in Vaughn v. Adams, case number 1:01-cv-05241-OWW-DLB, in which this Court granted Petitioner’s previous habeas corpus petition for instructional error. The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). Petitioner was retried and convicted on March 26, 2008. (LD 1.) Although Petitioner indicates in the petition before the Court that he was convicted and sentenced in 1997, the Court understands from the documents submitted in connection with the motion that Petitioner is challenging his 2008 convictions. 25 26 27 28 3 Under the mailbox rule, a prisoner's pro se habeas petition is "deemed filed when he hands it over to prison authorities for mailing to the relevant court." Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); Houston v. Lack, 487 U.S. 266, 276 (1988); see, Rule 3(d) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). The mailbox rule applies to federal and state petitions alike. Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citing Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th 4 1 habeas corpus in the KCSC, which was denied on August 25, 2010. 2 (LD 6-7.) 3 The Court takes judicial notice of its docket and documents 4 filed in Vaughn v. Allison, case number 1:11-cv-01384-GSA-HC, 5 which show that on August 17, 2011, Petitioner filed a previous 6 federal habeas application challenging the same convictions. 7 Court found that the petition contained unexhausted claims and 8 dismissed the action without prejudice on February 13, 2012. 9 (Doc. 1, 6; doc. 18.) 10 The On April 28, 2012, Petitioner filed a petition for writ of 11 habeas corpus in the CSC, which was denied on July 11, 2012. 12 8-9.) 13 14 (LD Petitioner filed the petition in this action on July 20, 2012. (Doc. 1, 6.) 15 IV. 16 On April 24, 1996, Congress enacted the Antiterrorism and The Limitation Period 17 Effective Death Penalty Act of 1996 (AEDPA), which applies to all 18 petitions for writ of habeas corpus filed after its enactment. 19 Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 20 F.3d 1484, 1499 (9th Cir. 1997). 21 petition for writ of habeas corpus here on July 20, 2012, the 22 AEDPA applies to the petition. 23 Because Petitioner filed his The AEDPA provides a one-year period of limitation in which 24 a petitioner must file a petition for writ of habeas corpus. 25 U.S.C. § 2244(d)(1). 28 It further identifies the pendency of some 26 27 28 Cir. 2003)). It has been held that the date the petition is signed may be inferred to be the earliest possible date an inmate could submit his petition to prison authorities for filing under the mailbox rule. Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408 (2005). 5 1 proceedings for collateral review as a basis for tolling the 2 running of the period. 3 4 As amended, subdivision (d) provides: (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of –- 5 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 6 7 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 8 9 10 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 11 12 13 14 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 15 16 17 18 19 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). 20 V. 21 Pursuant to § 2244(d)(1)(A), the limitation period runs from 22 23 The Running of the Limitation Period the date on which the judgment became final. Under § 2244(d)(1)(A), the “judgment” refers to the sentence 24 imposed on the petitioner. 25 57 (2007). 26 28, 2008. 27 28 Burton v. Stewart, 549 U.S.147, 156- The last sentence was imposed on Petitioner on April (LD 1.) Under § 2244(d)(1)(A), a judgment becomes final either upon the conclusion of direct review or the expiration of the time for 6 1 seeking such review in the highest court from which review could 2 be sought. 3 2001). 4 upon either 1) the conclusion of all direct criminal appeals in 5 the state court system, followed by either the completion or 6 denial of certiorari proceedings before the United States Supreme 7 Court; or 2) if certiorari was not sought, then by the conclusion 8 of all direct criminal appeals in the state court system followed 9 by the expiration of the time permitted for filing a petition for Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. The statute commences to run pursuant to § 2244(d)(1)(A) 10 writ of certiorari. 11 Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied 525 12 U.S. 1187 (1999)). 13 Wixom, 264 F.3d at 897 (quoting Smith v. Here, Petitioner’s direct review concluded when his petition 14 for review was denied by the CSC on April 14, 2010. 15 direct review expired ninety days thereafter on July 13, 2010, 16 when the period for seeking a writ of certiorari concluded. 17 Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). 18 limitation period began to run on July 14, 2010, and without any 19 tolling would expire one year later on July 13, 2011. 20 v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001) (holding 21 analogously that the correct method for computing the running of 22 the one-year grace period is pursuant to Fed. R. Civ. P. 6(a), in 23 which the day upon which the triggering event occurs is not 24 counted). 25 The petition was filed here on July 20, 2012. The time for See, Thus, the Patterson Thus, absent 26 any tolling, the petition shows on its face that it was filed 27 outside the one-year limitation period provided for by the 28 statute. 7 1 VI. 2 Title 28 U.S.C. § 2244(d)(2) states that the “time during Statutory Tolling pursuant to 28 U.S.C. § 2244(d)(2) 3 which a properly filed application for State post-conviction or 4 other collateral review with respect to the pertinent judgment or 5 claim is pending shall not be counted toward” the one-year 6 limitation period. 7 28 U.S.C. § 2244(d)(2). Once a petitioner is on notice that his habeas petition may 8 be subject to dismissal based on the statute of limitations, he 9 has the burden of demonstrating that the limitations period was 10 sufficiently tolled by providing pertinent dates of filing and 11 denial, although the state must affirmatively argue that the 12 petitioner failed to meet his burden of alleging the tolling 13 facts; simply noting the absence of such facts is not sufficient. 14 Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002). 15 Here, Petitioner filed his first state petition on June 26, 16 2010. 17 period of statutory tolling, there is no tolling during time that 18 elapses before the limitations period commences to run. See 19 Waldrip v. Hall, 548 F.3d at 735 (an unexplained delay of six 20 months between the denial by one California state court and a new 21 filing in a higher California court was too long to permit 22 tolling of the federal limitations period on the ground that 23 state court proceedings were ‘pending’”). 24 2010, the date the statute of limitations began to run after the 25 expiration of the direct appeal, the statute was tolled. 26 period of tolling endured through August 25, 2010, the date the 27 KCSC denied the first state petition. 28 Although filing a state petition normally initiates a Thus, on July 14, The On August 26, 2010, the limitation period began running and 8 1 2 expired one year later on August 25, 2011. Petitioner filed his second state habeas petition on April 3 28, 2012. 4 by the time the petition was filed. 5 the pendency of state applications has no tolling effect. 6 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding 7 that filing a state collateral petition after the running of the 8 one-year limitations period of the AEDPA but even before the 9 expiration of the pertinent state period of finality did not toll 10 11 12 However, the limitation period had previously expired Under such circumstances, the running of the period under § 2244(d)(2)). Accordingly, the petition filed in the present action on July 20, 2012, was untimely. 13 VII. 14 Petitioner argues that he is innocent of the crimes of which 15 16 Actual Innocence he was convicted. The question of whether a showing of actual innocence will 17 bring a petitioner within an exception to the statute of 18 limitations, and the related question of whether a petitioner 19 claiming actual innocence must have exercised reasonable 20 diligence in raising his claim, are presently pending before the 21 United States Supreme Court. 22 665 (6th Cir. 2012), cert. granted, McQuiggin v. Perkins, 2012 WL 23 3061886 (No. 12-126, U.S., Oct. 29, 2012). 24 Lampert, 653 F.3d 929, 932-33 (9th Cir. 2011), the court held 25 that a credible claim of actual innocence constitutes an 26 equitable exception to ADEPA’s statute of limitations, and a 27 petitioner who makes such a showing may have his otherwise time- 28 barred claims heard on the merits. See, McQuiggin v. Perkins, 670 F.3d 9 However, in Lee v. Thus, if an otherwise time- 1 barred habeas petitioner demonstrates that it is more likely than 2 not that no reasonable juror would have found him guilty beyond a 3 reasonable doubt, the petitioner may have his constitutional 4 claims heard on the merits. 5 Lee, 653 F.3d at 937. It is the petitioner’s burden to produce sufficient proof of 6 actual innocence to bring him within the narrow class of cases 7 implicating a fundamental miscarriage of justice. 8 Lampert, 653 F.3d at 937. 9 reliable evidence that undercuts the reliability of the proof of Lee v. The Petitioner must submit new, 10 guilt and is so strong that a court cannot have confidence in the 11 outcome of the trial unless the court is also satisfied that the 12 trial was free of non-harmless constitutional error. 13 38 (citing Schlup v. Delo, 513 U.S. 298, 314–16 (1995)). 14 evidence may be exculpatory scientific evidence, trustworthy 15 eyewitness accounts, or critical physical evidence. 16 must show that it is more likely than not that no reasonable 17 juror would have convicted him in light of the new evidence. 18 Court considers all new and old evidence and makes a 19 probabilistic determination of what reasonable, properly 20 instructed jurors would do. 21 Id. at 937The new A petitioner The Id. at 938. The court in Lee expressly declined to decide what level, if 22 any, of diligence is required for one raising the equitable 23 exception of actual innocence. 24 n.9. 25 Lee v. Lampert, 653 F.3d at 934 Here, the pertinent portion of Petitioner’s opposition to 26 the motion to dismiss contains Petitioner’s discussion of his 27 innocence: 28 PETITIONER IS INNOCENT OF THE CRIMES CONVICTED OF, THE JURY REGARDLESS OF PETITIONER’S ALIBY (sic) WITNESS 10 1 OR THE FACT THAT THE VICTIM STATED THAT I THE PETITIONER IN THIS CASE DID NOT COMMIT THIS CRIME. 2 (Opp., doc. 14, 1.) 3 There is no description of the facts of the offense in the 4 petition. Likewise, the CCA’s opinion in the direct appeal, 5 which focused on the jury instructions concerning evidence of 6 prior acts, does not contain a comprehensive statement of the 7 facts of the offenses; it reveals only that Petitioner was 8 convicted of having committed lewd acts with a seven-year-old 9 child, and that the parties stipulated at trial that Petitioner 10 had a twenty-five-year-old daughter who would testify that on one 11 occasion when she was seven years old, Petitioner pulled down her 12 panties and fondled her vagina, and Petitioner had threatened to 13 kill the child’s mother if the mother called the police. (LD 2, 14 2.) The petition for review filed by Petitioner in the CSC 15 reflects that Petitioner presented alibi evidence that he was 16 with his girlfriend on the night of the charged molestation; the 17 victim reported to police that she was awakened by a man wearing 18 a dark blue jacket pulled over his face, exposing only his eyes 19 and nose; the victim picked out of a photographic lineup a 20 picture of Petitioner, who was a family friend with whom the 21 victim was familiar; there were some discrepancies with respect 22 to the victim’s descriptions of how she reported the matter to 23 her parents after the molestation; and there was no DNA or other 24 medical or physical evidence to corroborate the victim’s claim 25 that Petitioner was the person who molested her. (LD 3, 10-11.) 26 Petitioner does not submit any evidence that establishes 27 actual innocence of the charges. Although Petitioner refers to 28 the victim’s having said that Petitioner did not commit “this 11 1 crime,” it is unclear to which of the counts this indirect 2 assertion refers. 3 evidence regarding the alleged statement. 4 shows that the victim reported the crime and identified 5 Petitioner as the perpetrator. 6 regarding a statement made by the victim does not constitute new 7 or reliable evidence that undercuts the reliability of the proof 8 of guilt. 9 is more likely than not that no reasonable juror would have 10 11 Further, Petitioner has not submitted any The state court record Petitioner’s vague assertion Petitioner has not met his burden of showing that it convicted him in light of new evidence. Accordingly, Petitioner has not established actual innocence 12 that would permit consideration of his petition on the merits 13 despite the petition’s untimeliness. 14 VIII. 15 Petitioner appears to contend that on or about April 29, Stay 16 2012,4 Petitioner construed a “notice” filed in federal court to 17 be a stay that would enable Petitioner to proceed with the 18 petition if Petitioner could or would exhaust state court 19 remedies and amend the petition thereafter. 20 to claim that his present petition is simply an amendment of his 21 previous petition, and thus his claims relate back to properly 22 exhausted claims. 23 Petitioner appears (Doc. 14, 2.) The Court takes judicial notice of the docket and specified 24 orders filed in this Court in Vaughn v. Allison, case number 25 1:11-cv-01384-GSA-HC. In that proceeding, Petitioner filed on 26 27 28 4 The docket in Vaughn v. Allison, 1:11-cv-01384-GSA, reflects that on May 3, 2012, after judgment of dismissal and the filing of a notice of appeal, Petitioner filed a notice that he had filed a habeas petition in the California Supreme Court to exhaust his mixed petition, and he requested that he be allowed to try to exhaust his mixed petition. (Doc. 24 at 1.) 12 1 August 17, 2011, a petition concerning the same convictions that 2 Petitioner challenges here. 3 dismiss the petition on the ground that Petitioner had failed to 4 present one of his two claims, namely, a claim concerning the 5 ineffective assistance of counsel, to the California Supreme 6 Court, and thus Petitioner had failed to exhaust state court 7 remedies as to all of his claims. 8 opposed the motion, arguing that the state appellate court did 9 not allow Petitioner the opportunity to exhaust his ineffective (Doc. 1, 2.) Respondent moved to (Doc. 15, 3.) Petitioner 10 assistance claim, and requesting that Petitioner be allowed to 11 exhaust his claim properly before the California Supreme Court. 12 (Doc. 17, 2-3.) 13 “mixed” petition containing both exhausted and unexhausted 14 claims, and thus the petition was dismissed without prejudice to 15 give Petitioner an opportunity to exhaust his claim if he could 16 do so. 17 without prejudice, this Court noted that the dismissal was not on 18 the merits of the petition, and thus Petitioner could return to 19 federal court file a second petition; however, the Court 20 expressly warned Petitioner that if he returned to federal court 21 and filed another mixed petition, the petition might be dismissed 22 with prejudice. 23 dismissed the petition without prejudice and directed termination 24 of the action and the entry of judgment, which was effected the 25 same day. 26 appeal. 27 28 This Court concluded that the petition was a (Doc. 18, 4-5.) In its order dismissing the petition (Id. at 5.) The order of dismissal expressly (Id. at 5; doc. 19.) Petitioner filed a notice of (Doc. 20.) In summary, this Court’s order of dismissal and entry of judgment in the first proceeding were not ambiguous; rather they 13 1 expressly provided that the proceeding was being terminated. 2 Court’s notice concerning the future was clearly directing to the 3 filing of petitions in separate actions in the future. The 4 IX. 5 Petitioner appears to contend that he may amend his previous Relation Back to the Previously Dismissed Petition 6 petition even after a judgment dismissing the petition has been 7 entered and an appeal has been filed. 8 court has ruled on a claim and a party has filed an appeal from 9 the ruling, the party may not amend his petition, even if the However, once a district 10 petitioner files a new petition before the appellate court rules. 11 Beaty v. Schriro, 554 F.3d 780, 782-783 & n.1 (9th Cir. 2009), 12 cert. den., Beaty v. Ryan, 130 S.Ct. 364 (2009). 13 Petitioner attempts to avoid the time bar by arguing that 14 his claims in the present petition relate back to claims set 15 forth in the previously dismissed petition. 16 relate back to the date of the original pleading when the claim 17 asserted in the amendment arises out of the conduct, transaction, 18 or occurrence set forth in the original pleading. 19 P. 15(c)(1)(B). 20 petition to add a new claim after the statute of limitations has 21 run only if the new claim shares a common core of operative facts 22 with the exhausted claims in the pending petition such that the 23 new claims depend upon events that are not separate in time and 24 type from the originally raised episodes; otherwise a new claim 25 will not “relate back” to the date the original petition was 26 filed. 27 Ryan, 564 F.3d 1133, 1142 (9th Cir. 2009). 28 Pleading amendments Fed. R. Civ. A petitioner may amend a pending habeas corpus Mayle v. Felix, 545 U.S. 644, 657-58 (2005); King v. Here, this Court dismissed Petitioner’s previous petition; 14 1 thus, no claims were pending in this Court at the time Petitioner 2 filed the present petition. 3 the district court dismisses the original habeas petition because 4 there is nothing to which a new petition could relate back. 5 Raspberry v. Garcia, 448 F.3d 1150, 1154-55 (9th Cir. 2006) (no 6 relation back where the original petition was dismissed without 7 prejudice for failure to exhaust state court remedies). 8 Petitioner’s present petition does not relate back to his 9 previous petition. Relation back is not available where Thus, 10 X. 11 Petitioner argues that he failed to receive notice of the Equitable Tolling 12 state court’s decision, and thus he was not allowed to file a 13 timely petition. 14 should equitably toll the running of the limitations period. 15 Petitioner contends that this failure of notice The one-year limitation period of § 2244 is subject to 16 equitable tolling where the petitioner shows that he or she has 17 been diligent, and extraordinary circumstances have prevented the 18 petitioner from filing a timely petition. 19 U.S. –, 130 S.Ct. 2549, 2560, 2562 (2010). 20 provide specific facts to demonstrate that equitable tolling is 21 warranted; conclusory allegations are generally inadequate. 22 Williams v. Dexter, 649 F.Supp.2d 1055, 1061-62 (C.D.Cal. 2009). 23 The petitioner must show that the extraordinary circumstances 24 were the cause of his untimeliness and that the extraordinary 25 circumstances made it impossible to file a petition on time. 26 Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). 27 prisoner fails to show any causal connection between the grounds 28 upon which he asserts a right to equitable tolling and his 15 Holland v. Florida, – Petitioner must Where a 1 inability to file timely a federal habeas application, the 2 equitable tolling claim will be denied. 3 F.3d 1030, 1034-35 (9th Cir. 2005). 4 failure to recognize that a state filing was unreasonably delayed 5 under California law is not the result of an “external force” 6 that rendered timeliness impossible, but rather is attributable 7 to the petitioner as the result of his own actions. 8 Kirkland, 639 F.3d 964, 969 (9th Cir. 2011). 9 Gaston v. Palmer, 417 A prisoner’s or counsel’s Velasquez v. The diligence required for equitable tolling is reasonable 10 diligence, not “maximum feasible diligence.” 11 130 S.Ct. at 2565. 12 equitable tolling [under AEDPA] is very high, lest the exceptions 13 swallow the rule.” 14 Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). Holland v. Florida, However, “the threshold necessary to trigger Spitsyn v. Moore, 345 F.3d 796, 799 (quoting 15 A prisoner’s lack of knowledge that the state courts have 16 reached a final resolution of his case can provide grounds for 17 equitable tolling if the prisoner has acted diligently in the 18 matter. 19 that a delay in receipt of notification of a ruling may serve 20 equitably to toll the running of the statute. 21 Ollison, 530 F.Supp.2d 1077, 1083-84 (C.D.Cal. 2007) (collecting 22 authorities); Lewis v. Mitchell, 173 F.Supp.2d 1057, 1061-62 23 (C.D.Cal. 2001); Lopez v. Scribner, 2008 WL 2441362, *7-*9 (No. 24 CV 07-6954-ODW (JTL), C.D.Cal. Apr. 11, 2008) (unpublished). 25 Ramirez v. Yates, 571 F.3d at 997. It has been held See, White v. Here, Petitioner has failed to inform the Court of which 26 particular decision Petitioner allegedly failed to receive, the 27 pertinent dates and the time period Petitioner seeks to have 28 equitably tolled, or any details concerning Petitioner’s ultimate 16 1 receipt of notice and the specific effect of the precise delay 2 suffered by Petitioner. 3 specific facts showing that extraordinary circumstances were the 4 cause of Petitioner’s untimeliness and that the extraordinary 5 circumstances made it impossible to file a petition on time. 6 Further, Petitioner has failed to provide the Court sufficient 7 data to demonstrate that Petitioner proceeded diligently. 8 the Court concludes that Petitioner has not shown that he is 9 entitled to equitable tolling based on failure to receive a 10 11 Petitioner has failed to provide Thus, decision. In summary, the undisputed state court record shows that the 12 petition in this proceeding was untimely filed. 13 will be recommended that Respondent’s motion to dismiss the 14 petition be granted. Accordingly, it 15 XI. 16 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 17 appealability, an appeal may not be taken to the Court of Appeals 18 from the final order in a habeas proceeding in which the 19 detention complained of arises out of process issued by a state 20 court. 21 U.S. 322, 336 (2003). 22 only if the applicant makes a substantial showing of the denial 23 of a constitutional right. 24 petitioner must show that reasonable jurists could debate whether 25 the petition should have been resolved in a different manner or 26 that the issues presented were adequate to deserve encouragement 27 to proceed further. 28 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 17 A 1 certificate should issue if the Petitioner shows that jurists of 2 reason would find it debatable whether the petition states a 3 valid claim of the denial of a constitutional right or that 4 jurists of reason would find it debatable whether the district 5 court was correct in any procedural ruling. 6 529 U.S. 473, 483-84 (2000). 7 Slack v. McDaniel, In determining this issue, a court conducts an overview of 8 the claims in the habeas petition, generally assesses their 9 merits, and determines whether the resolution was debatable among 10 jurists of reason or wrong. 11 applicant to show more than an absence of frivolity or the 12 existence of mere good faith; however, it is not necessary for an 13 applicant to show that the appeal will succeed. 14 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 15 A district court must issue or deny a certificate of 16 appealability when it enters a final order adverse to the 17 applicant. 18 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 19 debate whether the petition should have been resolved in a 20 different manner. 21 of the denial of a constitutional right. 22 23 Petitioner has not made a substantial showing Therefore, it will be recommended that the Court decline to issue a certificate of appealability. 24 XII. 25 Accordingly, it is RECOMMENDED that: 26 1) Respondent’s motion to dismiss the petition be GRANTED; 27 28 Recommendations and 2) The petition for writ of habeas corpus be DISMISSED as 18 1 untimely; and 2 3) Judgment be ENTERED for Respondent; and 3 4) The Court DECLINE to issue a certificate of 4 appealability. 5 These findings and recommendations are submitted to the 6 United States District Court Judge assigned to the case, pursuant 7 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 8 the Local Rules of Practice for the United States District Court, 9 Eastern District of California. Within thirty (30) days after 10 being served with a copy, any party may file written objections 11 with the Court and serve a copy on all parties. 12 should be captioned “Objections to Magistrate Judge’s Findings 13 and Recommendations.” 14 and filed within fourteen (14) days (plus three (3) days if 15 served by mail) after service of the objections. 16 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 17 § 636 (b)(1)(C). 18 objections within the specified time may waive the right to 19 appeal the District Court’s order. 20 1153 (9th Cir. 1991). 21 22 Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d IT IS SO ORDERED. Dated: 10c20k December 4, 2012 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 19
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