(HC) James v. Sandor, No. 2:2014cv00788 - Document 18 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/3/14 RECOMMENDING that Respondents May 29, 2014 motion to dismiss 1 be granted; This action be dismissed with prejudice as barred by the limitations period contained in 28 U.S.C. § 2244(d)(1)(A)-(D); and the Clerk be directed to close the case. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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(HC) James v. Sandor Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LOUIS JAMES, 12 No. 2:14-cv-788-GEB-EFB P Petitioner, 13 v. 14 DAVE DAVEY,1 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition as untimely. 19 ECF No. 11. Petitioner filed an opposition to respondent’s motion, ECF No. 14, and respondent 20 filed a reply to petitioner’s opposition, ECF No. 16.2 For the reasons that follow, respondent’s 21 motion to dismiss should be granted. 22 23 24 25 26 27 28 1 Petitioner named “Warden Sandor” as respondent. ECF No. 1. The court substitutes the correct respondent, the Warden of the California State Prison, Corcoran, where petitioner is presently incarcerated. See Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), Rules Governing Section 2254 Cases) (“A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition”); see also Smith v. Idaho, 392 F.3d 350, 355-56 (9th Cir. 2004). 2 After respondent filed the reply, petitioner filed an unauthorized “Statement.” ECF No. 17. The Local Rules provide only for a motion, an opposition, and a reply. E.D. Cal. Local Rule 230. Petitioner neither sought nor obtained court approval before filing his statement. Accordingly, the “Statement” is not considered in resolving respondent’s motion. 1 Dockets.Justia.com 1 I. 2 BACKGROUND On July 22, 2010, a jury convicted petitioner of murder and possession of marijuana for 3 sale. ECF No. 15, Notice of Lodging Document in Paper (“Lodg. Doc.”) 1 (Abstract of Judgment 4 from Nevada County Superior Court). Petitioner appealed to the California Court of Appeal, 5 Third Appellate District (“Court of Appeal”). On March 7, 2012, the Court of Appeal awarded 6 petitioner thirteen extra days of credit and affirmed the judgment as modified. Lodg. Doc. 2. The 7 California Supreme Court denied petitioner’s request for review on May 23, 2012. Lodg. Doc. 4. 8 Petitioner subsequently filed three state habeas corpus petitions. He filed the first in 9 Nevada County Superior Court on February 1, 2012.3 Lodg. Doc. 5. The Superior Court denied 10 that petition on April 9, 2012. Lodg. Doc. 6. Petitioner filed the second state habeas petition in 11 the Court of Appeal on July 29, 2012. Lodg. Doc. 7. The Court of Appeal denied that petition on 12 August 9, 2012. Lodg. Doc. 8. Petitioner filed his third state habeas petition in the California 13 Supreme Court on August 23, 2012. Lodg. Doc. 9. The California Supreme Court denied that 14 petition on October 31, 2012. Lodg. Doc. 10. 15 16 17 Petitioner filed the pending federal habeas petition on March 21, 2014. ECF No. 1. II. THE LIMITATIONS PERIOD Under the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), a one-year 18 limitations period for seeking federal habeas relief begins to run from the latest of: (1) the date 19 the judgment became final on direct review (or April 25, 1996, if the judgment became final prior 20 to AEDPA’s enactment), (2) the date on which a state-created impediment to filing is removed, 21 (3) the date the United States Supreme Court makes a new rule retroactively applicable to cases 22 on collateral review, or (4) the date on which the factual predicate of a claim could have been 23 discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D); Malcom v. 24 Payne, 281 F.3d 951, 955 (9th Cir. 2002). 25 26 27 28 3 The court deems the filing date for each of petitioner’s habeas petitions to be the date reflected on the certificate of service for the respective petitions. See Houston v. Lack, 487 U.S. 266, 276 (1988) (prisoner’s notice of appeal deemed timely filed on the date it was delivered to prison staff for delivery to the court); Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002) (applying mailbox rule to petitions filed in state court), overruled on other grounds by Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). 2 1 A. 2 No statute tolls the limitations period “from the time a final decision is issued on direct Statutory Tolling 3 state appeal [to] the time the first state collateral challenge is filed . . . .” Nino v. Galaza, 183 4 F.3d 1003, 1006 (9th Cir. 1999). However, if a petitioner properly files a state post-conviction 5 application prior to the expiration of the limitations period, the period is tolled and remains tolled 6 for the entire time that application is “pending.” 28 U.S.C. § 2244(d)(2). “[A]n application is 7 ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and 8 rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed 9 post-conviction application is “pending” during the intervals between a lower court decision and 10 the filing of a new petition in a higher court if the second petition was filed within a “reasonable 11 time” after the denial of the first. Carey v. Saffold, 536 U.S. 214, 221 (2002); Stancle v. Clay, 12 692 F.3d 948, 956 (9th Cir. 2012); see also Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 13 2011) (finding that delays of ninety-one days and eighty-one days are “far longer than the 14 Supreme Court’s thirty-to-sixty-day benchmark for California’s ‘reasonable time’ requirement,” 15 and are, without adequate explanation, unreasonable under California law). A federal habeas 16 application does not provide a basis for statutory tolling, Duncan v. Walker, 533 U.S. 167, 181-82 17 (2001), nor does a state petition filed after the federal limitations period has expired, Ferguson v. 18 Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). 19 B. 20 The limitations period may also be equitably tolled where a habeas petitioner establishes Equitable Tolling 21 two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary 22 circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 23 (2010). Petitioner has the burden of showing facts entitling him to equitable tolling. Smith v. 24 Duncan, 297 F.3d at 814; Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). The threshold 25 necessary to trigger equitable tolling is very high, “lest the exceptions swallow the rule.” 26 Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Equitable tolling may be 27 applied only where a petitioner shows that some external force caused the untimeliness. Id. 28 ///// 3 1 III. 2 ANALYSIS The California Supreme Court denied petitioner’s petition for review on May 23, 2012. 3 Lodg. Doc. 4. The conviction became “final” within the meaning of § 2244(d)(1)(A) ninety days 4 later (i.e., on August 21, 2012), when the time for filing a petition for a writ of certiorari from the 5 United States Supreme Court expired. Supreme Ct. R. 13; Bowen v. Roe, 188 F.3d 1157, 1158-59 6 (9th Cir. 1999). The one-year limitations period commenced the following day. Patterson v. 7 Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner therefore had until August 22, 2013 to 8 file his federal habeas petition. Because petitioner did not file his federal petition until March 21, 9 2014, it is barred under AEDPA’s one-year limitations period, absent tolling. 10 A. 11 Petitioner filed—and the reviewing courts denied—his first two state habeas petitions Statutory Tolling 12 before the limitations period even commenced. Lodg. Docs. 5-8. A collateral action filed prior to 13 the effective date of the limitations period, however, does not toll the limitations period. See 14 Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008) (explaining that although the filing of a state 15 habeas petition “would otherwise have tolled the running of the federal limitations period, since it 16 was denied before that period had started to run, it had no effect on the timeliness of the ultimate 17 federal filing”). Thus, neither of petitioner’s first two state habeas petitions tolled the limitations 18 period. 19 Petitioner properly filed his third state habeas petition with the California Supreme Court 20 on August 23, 2012. Lodg. Doc. 9.4 By filing that petition prior to the expiration of the 21 limitations period, petitioner tolled the limitations period for the entire time that the application 22 was “pending.” 28 U.S.C. § 2244(d)(2). Petitioner’s third state habeas petition was pending from 23 the day he filed it (August 23, 2012) to the day the California Supreme Court denied it (October 24 31, 2012). Lodg. Docs. 9, 10. Because petitioner tolled the limitations period under § 2244(d)(2) 25 for those seventy days, he had until October 30, 2013 to file his federal petition. As noted above, 26 petitioner did not file his federal petition until March 21, 2014. ECF No. 1. Thus, absent 27 28 4 Respondent does not argue that the third state petition was improperly filed. ECF No. 11 at 4. 4 1 equitable tolling, petitioner’s federal petition is barred under AEDPA’s one-year limitations 2 period. 3 B. 4 In his opposition to respondent’s motion to dismiss, petitioner argues that the court should Equitable Tolling 5 apply equitable tolling because (1) he has been diligent in seeking collateral relief, (2) he is 6 “proceeding in pro per, without any formal legal education,” (3) he was in administrative 7 segregation for a total of eleven months between October 20, 2011 and May 27, 2014, and (4) he 8 was transferred to five different penal institutions in the last four years. ECF No. 14 at 1-2. 9 10 1. Diligence Petitioner was undeniably diligent in filing his three state habeas petitions: he filed his 11 first two before the judgment even became “final,” and he filed his third just two weeks after the 12 Court of Appeal denied his second. Lodg. Docs. 5, 7-9. But the California Supreme Court 13 denied his third state habeas petition on October 31, 2012, and petitioner did not file his federal 14 habeas petition until March 21, 2014—more than a year and four months later. Lodg. Doc. 10; 15 ECF No. 1. While petitioner may have been diligent in seeking habeas relief in the state courts, 16 he was not diligent in filing his federal habeas petition. Cf. Zarvela v. Artuz, 254 F.3d 374, 381 17 (2d Cir. 2001) (explaining that a “brief interval” between state court exhaustion and federal filing 18 is “normally 30 days”), cited with approval in Rhines v. Weber, 544 U.S. 269, 277-78 (2005). 19 Because petitioner has not satisfied his burden of demonstrating that he has been pursuing his 20 rights diligently, equitable tolling is not warranted. 21 22 2. Formal Legal Education Petitioner suggests he is entitled to equitable tolling because he is “proceeding in pro per, 23 without any formal legal education.” ECF No. 14 at 2. Petitioner fails to appreciate that 24 prisoners do not have a right to counsel in habeas proceedings, Miranda v. Castro, 292 F.3d at 25 1067-68, and that “a pro se petitioner’s lack of legal sophistication is not, by itself, an 26 extraordinary circumstance warranting equitable tolling,” Raspberry v. Garcia, 448 F.3d 1150, 27 1154 (9th Cir. 2006). Thus, equitable tolling is not warranted on the grounds that petitioner did 28 not have any formal legal training or counsel assisting with his petitions. 5 1 3. Administrative Segregation 2 According to petitioner, he was in administrative segregation from October 20, 2011 to 3 September 11, 2012 and from December 11, 2013 to May 27, 2014. ECF No. 14 at 2. During 4 those periods, his “access to legal research and materials was extremely limited.” Id. Even if 5 true, petitioner’s claims do not warrant equitable tolling for the period he was in administrative 6 segregation. 7 First, the limitations period began on August 22, 2012, and, with statutory tolling, 8 petitioner had until October 30, 2013 to file his federal petition. Because petitioner’s second stint 9 in administrative segregation (i.e., from December 11, 2013 to May 27, 2014) commenced more 10 than a month after the limitations period concluded, it could not have affected the timeliness of 11 his federal habeas petition. Moreover, his first stint of administrative segregation ended twenty 12 days after the limitations period commenced. Even if equitable tolling were warranted for those 13 twenty days, petitioner’s federal habeas petition would still be untimely. 14 Second, as noted above, the United States Supreme Court has suggested that a petitioner 15 should be able to file a federal habeas petition within a brief interval, normally thirty days, after 16 completing state court exhaustion. Rhines, 544 U.S. at 277-78 (citing Zarvela, 254 F.3d at 381). 17 Here, petitioner completed state court exhaustion when the California Supreme Court denied his 18 third state habeas petition on October 31, 2012, and petitioner did not file his federal habeas 19 petition until March 21, 2014—more than a year and four months later. Lodg. Doc. 10; ECF No. 20 1. Even with “extremely limited” access to “legal research and materials,” petitioner could have 21 filed a basic form federal habeas petition to satisfy the AEDPA deadline. See Waldron-Ramsey, 22 556 F.3d at 1014 (“If diligent, he could have prepared a basic form habeas petition and filed it to 23 satisfy the AEDPA deadline . . . .”); see also Ford v. Pliler, 590 F.3d 782, 790 (9th Cir. 2009) 24 (finding that a petitioner “is not entitled to equitable tolling on the ground that he did not have his 25 legal files [when] the record shows that he was aware of the factual basis of his claims without 26 them.”). 27 Third, the Ninth Circuit has explicitly rejected petitioner’s suggestion that reduced access 28 to research materials while in administrative segregation warrants equitable tolling. See Ramirez 6 1 v. Yates, 571 F.3d 993, 998 (9th Cir. 2009); Soto v. Lopez, No. 12-55093, ___ F. App’x ___, ___, 2 2014 WL 2142215, at *1 (9th Cir. May 23, 2014). In Ramirez, a prisoner seeking federal habeas 3 relief argued that that he was entitled to equitable tolling for the four months he was in 4 administrative segregation because he had limited access to the law library and copy machine 5 during that time. Id. The Ninth Circuit explained that “ordinary prison limitations on [the 6 prisoner’s] access to the law library and copier (quite unlike the denial altogether of access to his 7 personal legal papers) were neither ‘extraordinary’ nor made it ‘impossible’ for him to file his 8 petition in a timely manner.” Id. Here, petitioner claims only that his “access to legal research 9 and materials was extremely limited” while in administrative segregation; he does not contend 10 that he was outright denied access to his personal legal papers during that time. ECF No. 14 at 2. 11 The court also notes that petitioner filed all three of his state habeas petitions during his first stint 12 in administrative segregation (i.e., between October 20, 2011 and September 11, 2012). Because 13 petitioner has not shown that his extremely limited access to legal research and materials was an 14 extraordinary prison limitation that made it impossible for him to file his federal habeas petition 15 in a timely manner, equitable tolling for the twenty days that he was in administrative segregation 16 during the limitations period is not warranted. 17 18 4. Transfers Between Prisons Petitioner also suggests that the court should grant equitable tolling because he was 19 transferred to five different penal institutions over the course of four years. ECF No. 14 at 1. 20 According to petitioner, “[e]ach location requires an ‘Orientation’ process which can last from 2 21 to 4 weeks and is often without personal property, including any legal paperwork, or access to the 22 law library or research materials.” Id. Petitioner does not provide any specific details such as 23 dates of transfers, what legal paperwork he was deprived of, or the duration of the deprivations, 24 other than: (1) he arrived at California State Prison, Corcoran on July 31, 2013 and was without 25 his property until August 26, 2013, (2) he was admitted to the hospital on November 22, 2013, 26 placed in administrative segregation on December 11, 2013, and was without his property until 27 January 24, 2014, (3) officials at Calipatria State Prison misplaced his trial discovery documents, 28 and (4) officials at California State Prison, Corcoran lost all of his trial transcripts. 7 1 Like placements in administrative segregation, transfers between prisons are ordinary 2 prison limitations. See, e.g., Soto, 2014 WL 2142215, at *1 (finding that petitioner, despite 3 claiming that he lacked access to the law library and his legal materials while in administrative 4 segregation and during a prison transfer, had not demonstrated “that these ordinary prisons 5 limitations amounted to an extraordinary circumstance beyond his control preventing him from 6 filing his federal habeas petition”); Ray v. Marshall, 376 F. App’x 670, 671 (9th Cir. 2010) 7 (rejecting argument that lack of access to legal files after a prison transfer justifies equitable 8 tolling). Petitioner has also failed to identify specific instances in which he needed documents 9 that he was deprived of as a result of his prison transfers. See Waldron–Ramsey, 556 F.3d at 10 1013-14 (denying equitable tolling based on lack of access to documents because the petitioner 11 “d[id] not point to specific instances where he needed a particular document, could not have kept 12 that document within his permitted three boxes had he been cooperative, and could not have 13 procured that particular document when needed.”). 14 IV. 15 CONCLUSION Petitioner has failed to establish both his diligence in seeking federal habeas relief and an 16 extraordinary circumstance that prevented the timely filing of his federal habeas petition. 17 Equitable tolling is therefore not warranted. With the seventy days that the limitations period was 18 tolled under § 2244(d)(2), petitioner had until October 30, 2013 to file his federal petition. 19 Because petitioner did not file his federal petition until March 21, 2014, it is untimely under 20 AEDPA. 21 For the reasons stated above, it is hereby RECOMMENDED that: 22 1. Respondent’s May 29, 2014 motion to dismiss (ECF No. 11) be granted; 23 2. This action be dismissed with prejudice as barred by the limitations period contained 24 in 28 U.S.C. § 2244(d)(1)(A)-(D); and 25 3. The Clerk be directed to close the case. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 28 after being served with these findings and recommendations, any party may file written 8 1 objections with the court and serve a copy on all parties. Such a document should be captioned 2 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 3 within the specified time may waive the right to appeal the District Court’s order. Turner v. 4 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 5 his objections petitioner may address whether a certificate of appealability should issue in the 6 event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 2254 7 Proceedings (the district court must issue or deny a certificate of appealability when it enters a 8 final order adverse to the applicant). 9 DATED: December 3, 2014. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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