Blach v. Dovey et al, No. 4:2005cv04446 - Document 63 (N.D. Cal. 2009)
Court Description: ORDER GRANTING RESPONDENT'S MOTION TO DISMISS by Judge Phyllis J. Hamilton denying 52 Motion ; denying 53 Motion for Extension of Time to File; granting 54 Motion to Dismiss; denying 55 Motion ; denying 61 Motion (Attachments: # 1 Certificate of Service) (nah, COURT STAFF) (Filed on 9/9/2009)
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Blach v. Dovey et al Doc. 63 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 RODNEY BLACH, No. C 05-4446 PJH (PR) Petitioner, 8 9 JOHN DOVEY, Director of Adult Institutions, CDCR, 11 For the Northern District of California United States District Court 10 ORDER GRANTING RESPONDENT'S MOTION TO DISMISS vs. Respondent. 12 / 13 14 This is a habeas case brought pro se by a state prisoner under 28 U.S.C. § 2254. 15 Respondent has filed a motion to dismiss on grounds that the petition is barred by the 16 statute of limitations. Petitioner has filed an opposition and respondent a reply. Petitioner 17 has filed several motions, none of which have sufficient merit to require deferring ruling on 18 the motion to dismiss. For the reasons set out below, the motion to dismiss is granted 19 20 DISCUSSION Respondent contends that this petition is barred by the statute of limitations. The 21 statute of limitations is codified at 28 U.S.C. § 2244(d). Petitions filed by prisoners 22 challenging non-capital state convictions or sentences must be filed within one year of the 23 latest of the date on which: (A) the judgment became final after the conclusion of direct 24 review or the time passed for seeking direct review; (B) an impediment to filing an 25 application created by unconstitutional state action was removed, if such action prevented 26 petitioner from filing; (C) the constitutional right asserted was recognized by the Supreme 27 Court, if the right was newly recognized by the Supreme Court and made retroactive to 28 cases on collateral review; or (D) the factual predicate of the claim could have been Dockets.Justia.com 1 discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during 2 which a properly filed application for state post-conviction or other collateral review is 3 pending is excluded from the one-year time limit. Id. § 2244(d)(2). For the Northern District of California United States District Court 4 The starting date for most state prisoner habeas petitions is the date direct review 5 concluded, and respondent contends that should be the starting date here. On September 6 16, 2003, the California Court of Appeal affirmed the judgment except as to an arson 7 enhancement, and remanded for resentencing. On December 17, 2003, the California 8 Supreme Court denied review. On January 22, 2004, petitioner was resentenced. He did 9 not appeal, so the latest his direct appeal could be deemed to have been completed was 10 upon the expiration of time to appeal from the resentencing, March 22, 2004. If the 11 limitations period began running upon completion of direct review, the deadline for 12 petitioner to file this petition thus was March 22, 2005. See Patterson v. Stewart, 251 F.3d 13 1243, 1246 (9th Cir. 2001) (adopting what is referred to as the “anniversary method” 14 because, absent any tolling, the expiration date of the limitation period will be the same 15 date as the triggering event but in the following year). It in fact was not filed until it was 16 placed in the mail on October 27, 2005, 219 days after the deadline. This petition thus is 17 untimely unless tolling applies or a different starting date is used. 18 In his opposition to the motion to dismiss, petitioner complains of difficulty in gaining 19 access to his legal papers. It is not clear whether he means this only as an argument for 20 equitable tolling, or also intends to assert a different starting date for the limitations period, 21 namely that set out in section 2244(d)(1)(B), the date an impediment to filing an application 22 created by unconstitutional state action was removed. Because it is understandable that 23 the distinction might be confusing to a layperson; the court will overlook his failure to clarify 24 the point and will treat his opposition as raising both arguments. 25 The contention that the starting date should be determined under section 26 2244(d)(1)(B) is plainly without merit. In the recent case of Ramirez v. Yates, 571 F.3d 993 27 (9th Cir. 2009), the Ninth Circuit held that a section 2244(d)(1)(B) claim must meet “a far 28 higher bar than that for equitable tolling.” Id. at 1000-01. When the constitutional right 2 For the Northern District of California United States District Court 1 alleged to have been violated is that of access to the courts, as it is here, the delayed start 2 of the limitations period is available only if the impediment prevented the prisoner from filing 3 his claims in “any form in any court.” See id. at 1000-01 (emphasis in original) (refusing to 4 allow delayed commencement under 28 U.S.C. § 2244(d)(1)(B) when prisoner filed three 5 state petitions, a state discovery motion, and a federal motion during the relevant time). 6 Here petitioner managed to file with this court a request for an extension of time to file his 7 habeas petition; it was filed on December 14, 2004, after completion of direct review but 8 before expiration of the limitations period, that is, it shows he was not completely prevented 9 from filing by the problems with access to his voluminous legal papers. See Blach v. 10 Campbell, No. C 04-5284 PJH (PR). Thus it is clear that he was not prevented from filing 11 “in any form in any court,” the prerequisite under Ramirez for application of section 12 2244(d)(1)(B).1 See Ramirez, 571 F.3d at 1000-01. Petitioner’s contention that the starting 13 date should be a date other than completion of direct review is rejected. 14 Petitioner also contends he is entitled to equitable tolling. “To receive equitable 15 tolling, ‘”[t]he petitioner must establish two elements: (1) that he has been pursuing his 16 rights diligently, and (2) that some extraordinary circumstances stood in his way.”’ Bryant 17 v. Arizona Atty. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007) (quoting Rasberry v. Garcia, 448 18 F.3d 1150, 1153 (9th Cir.2006)). The petitioner must additionally show that ‘”the 19 extraordinary circumstances were the cause of his untimeliness,”’ id. (quoting Spitsyn v. 20 21 22 23 24 25 26 27 28 1 The court notes that although the court in Ramirez was absolute – only a complete inability to file anything in any court triggers the alternative starting date – in this case petitioner could not meet even a more lenient standard. He has filed no state habeas petitions aside from the lengthy one he filed with his direct appeal and which was decided with it, so he has not exhausted any issues other than those that were raised on direct appeal or in the accompanying habeas petition, and only those issues could properly be included in a federal petition. Although not much clearly emerges from his allegations regarding access to his legal papers at the relevant time, one thing that is clear is that he was not completely prevented from having any access at all, and that his real complaint is that access was not sufficient to allow him to make the sort of complex and lengthy arguments he prefers. He also alleges that he had considerable help from outside the prison. Even with only minimal access to his papers he could have used his appellate brief and habeas petition to compose the federal petition, or he could have asked his outside helpers to send him those two items. Thus, even under a less demanding standard, the facts he alleges would not have prevented him from filing his petition. 3 1 Moore, 345 F.3d 796, 799 (9th Cir.2003)), and that the ‘”extraordinary circumstances 2 ma[de] it impossible to file a petition on time,”’ Roy, 465 F.3d at 969 (quoting Calderon v. 3 United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir.1997)).” Ramirez v. Yates, 4 571 F.3d 993, 997 (9th Cir. 2009). For the Northern District of California United States District Court 5 Petitioner fails to say which papers were seized when, and although he says that 6 allegations relevant to his equitable tolling argument are contained in the exhibits attached 7 to the opposition, he does not say where in the voluminous attachments they might be, or 8 what they might say. This is sufficient in itself to reject the equitable tolling argument. See 9 Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (summary judgment case; holding that 10 it is not the task of the district court to scour the record in search of a genuine issue of 11 triable fact when litigant has failed to point out where such evidence might be found). 12 Petitioner’s arguments also have other defects. Petitioner asserts that the loss of his 13 papers requires tolling of “ENTIRE period (23 Mar 05 thru 27 Oct 05) that state retained 14 seized legal papers.” Pet’r P. & A. at 15. Because the limitations period expired on March 15 22, 2005, this allegation provides no basis for equitable tolling. On the other hand, 16 elsewhere in his opposition brief he contends that the “duration of impediment” was 17 “15Jul03 - 26Oct05,” id. at 12, which is the relevant period, but provides no clear indication 18 of what papers were stored – it seems from some of his allegations that his point is that not 19 all of his papers were permitted to be in his cell at one time – and does not say how long 20 they were stored. He alleges, as part of the same discussion, that he was “cyclically” 21 deprived of papers, and that this had a “chilling” effect. Id. Aside from being conclusory 22 and fact-free, even if these allegations were true they would not show that the periodic 23 deprivation of access to his papers, or some of them, made it “impossible” for petitioner to 24 file his petition on time, nor would they show that he was diligent in trying to file it. 25 Petitioner has not carried his burden to show that equitable tolling applies. See 26 Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002) (petitioner claiming equitable tolling 27 bears burden of demonstrating limitation period was sufficiently tolled). 28 Because petitioner has failed to establish any basis for avoiding the statute of 4 1 limitations, the motion to dismiss will be granted. 2 CONCLUSION 3 Respondent’s motion to dismiss (document number 54 on the docket) is GRANTED. 4 The petition is DISMISSED. Petitioner’s pending motions (documents number 52, 53, 55 & 5 61) are DENIED as moot. The clerk shall close the file. 6 IT IS SO ORDERED. 7 Dated: September 8, 2009. PHYLLIS J. HAMILTON United States District Judge 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 1 2 G:\PRO-SE\PJH\HC.05\BLACH446.DSMSS-SL.wpd 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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