Jorge Niebla v. G J Janda

Filing 27

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Christina A. Snyder. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment be entered denying and dismissing the Petition with prejudice. (Attachments: # 1 R&R) (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JORGE NIEBLA,

) NO. CV 12-4263-CAS(E)
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Petitioner,
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v.
) REPORT AND RECOMMENDATION OF
)
G.J. JANDA, WARDEN (A),
) UNITED STATES MAGISTRATE JUDGE
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Respondent.
)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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Christina A. Snyder, United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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On May 16, 2012, Petitioner filed a “Petition for Writ of Habeas

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Corpus By a Person in State Custody,” bearing a signature and service

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date of May 10, 2012.

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asserting that the Petition is untimely.

Respondent filed an Answer on November 6, 2012,
Petitioner filed a Reply on

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January 28, 2013.

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BACKGROUND

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On March 17, 2004, in the Los Angeles County Superior Court, a

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jury found Petitioner guilty of one count of kidnapping, two counts of

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infliction of corporal injury on a former cohabitant, one count of

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residential burglary, two counts of dissuading a witness by force or

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threat, one count of aggravated assault, one count of making a

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criminal threat, one count of sexual penetration with a foreign

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object, one count of forcible oral copulation, three counts of

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forcible rape, two counts of battery inflicting injury upon a peace

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officer, and one count of resisting an officer by force or violence

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(Respondent’s Lodgment 1; see People v. Niebla, 2008 WL 5395113, at *1

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(Cal. App. Dec. 23, 2008)).

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the misdemeanor offenses of assault and committing a lewd act in the

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presence of a minor (see People v. Niebla, 2008 WL 5395113, at *1).

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The jury found true the allegations that the rapes, oral copulation,

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and sexual penetration with a foreign object were committed during a

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burglary (see People v. Niebla, 2008 WL 5395113, at *1).

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sentenced Petitioner to a term of thirty-nine years and eight months

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plus five consecutive terms of fifteen years to life (Respondent’s

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Lodgment 1; People v. Niebla, 2008 WL 5395113, at *1).

The jury also found Petitioner guilty of

The court

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On August 20, 2007, the California Court of Appeal affirmed the

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conviction but remanded the case to the Superior Court for

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resentencing (Respondent’s Lodgment 5).

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California Supreme Court denied Petitioner’s petition for review
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On October 24, 2007, the

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summarily (Respondent’s Lodgment 7).

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On January 2, 2008, the Superior Court resentenced Petitioner

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(Respondent’s Lodgment 8).1

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again remanded for resentencing but otherwise affirmed the judgment

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(Petition, Ex. C; Respondent’s Lodgment 12; see People v. Niebla, 2008

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WL 5395113 (Cal. App. Dec. 23, 2008)).

On December 23, 2008, the Court of Appeal

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On June 24, 2009, the Superior Court resentenced Petitioner to a

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term of 39 years and 8 months plus 15 years to life (Petitioner, Ex.

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B; Respondent’s Lodgments 13, 14, 15).

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the judgment on February 26, 2010 (Petition, Ex. E; Respondent’s

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Lodgment 17; see People v. Niebla, 2010 WL 670539, at *1 (Cal. App.

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Feb. 26, 2010)).

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petition for review summarily on May 12, 2010 (Petition, Ex. F;

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Respondent’s Lodgment 19).

The Court of Appeal affirmed

The California Supreme Court denied Petitioner’s

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Petitioner filed a pro se habeas corpus petition in the Superior

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Court, bearing a service date of July 18, 2010 (Respondent’s Lodgment

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20).2

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directing the clerk to give notice (Respondent’s Lodgment 21).

On August 5, 2010, the Superior Court denied the petition,

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On or after December 19, 2010, Petitioner sent a letter to the
Superior Court, stating that he had not received any verification that

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Although the abstract of judgment bears the date of
January 1, 2010, a court holiday, the document bears a signature
date of January 2, 2010 (see Respondent’s Lodgment 8, p. 3).
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The copy of this document lodged by Respondent does not
bear a file stamp showing the date of filing.
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the court had filed his petition, and requesting proof of filing

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(Respondent’s Lodgment 22).

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letter bears a prison postmark of December 21, 2010 (Respondent’s

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Lodgment 22).

A copy of the envelope attached to this

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On March 9, 2011, Petitioner filed a habeas corpus petition in

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the Court of Appeal, bearing a signature and service date of March 4,

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2011 (Respondent’s Lodgment 23).

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challenged his conviction and sentence, and also alleged, inter alia,

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that he had not been “served” with the Superior Court’s August 5, 2010

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order until January 6, 2011 (Respondent’s Lodgment 23, “Addendum to

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Instant Petition for Writ of Habeas Corpus,” p. iii).

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attached to the Court of Appeal petition a copy of a Superior Court

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nunc pro tunc minute order, dated August 5, 2010, denying the Superior

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Court petition (Respondent’s Lodgment 23, Ex. G thereto).

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order bore a print date of January 3, 2011 (id.).

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the Court of Appeal petition was a copy of an envelope addressed to

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Petitioner, bearing the Superior Court’s return address and a postmark

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of January 4, 2011 (id.).

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Petitioner received mail from the Superior Court on January 7, 2011

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(Respondent’s Lodgment 30, p. “4 of 5”).

In that Petition, Petitioner

Petitioner

The minute

Also attached to

Petitioner’s prison mail log shows

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On April 21, 2011, the Court of Appeal issued an order:

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(1) requiring the Director of the California Department of Corrections

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and Rehabilitation to show cause in the Superior Court why the

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abstract of judgment should not be corrected; and (2) otherwise

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denying the petition (Respondent’s Lodgment 24).

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///
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On June 21, 2011, the Superior Court issued a minute order

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appointing counsel for Petitioner “pursuant to defendant’s request”

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and correcting the abstract of judgment to reflect a sentence of

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thirty-three years and eight months plus an additional term of 15

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years to life (Respondent’s Lodgment 28, Ex. J).3

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Superior Court deputy clerk issued an amended abstract of judgment

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reflecting Petitioner’s correct sentence (Respondent’s Lodgment 25).

On June 29, 2011, a

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On July 27, 2011, Petitioner filed a petition for writ of mandate

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in the Court of Appeal, bearing a signature and service date of

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July 24, 2011 (Respondent’s Lodgment 26).

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Superior Court had failed to conduct proceedings regarding the Court

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of Appeal’s April 21, 2011 order to show cause and had failed to

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respond to Petitioner’s motions (Respondent’s Lodgment 26, pp. 2-3).

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On August 28, 2011, the Court of Appeal denied the petition on the

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ground that the relief sought had been granted by the Superior Court’s

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June 21, 2011 minute order, and directed the clerk to serve a copy of

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that minute order on Petitioner (Respondent’s Lodgment 27).

Petitioner alleged that the

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On November 23, 2011, Petitioner filed a habeas corpus petition

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in the California Supreme Court, bearing a signature date of

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November 17, 2011 (Respondent’s Lodgment 28).

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Court denied the petition summarily on April 18, 2012 (Respondent’s

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Lodgment 29).

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///

The California Supreme

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Although Respondent did not lodge this document, a copy
of the document is attached to Petitioner’s subsequent California
Supreme Court habeas petition (Respondent’s Lodgment 28, Ex. J).
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PETITIONER’S CONTENTIONS

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Petitioner contends:

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Petitioner’s trial counsel allegedly rendered ineffective

assistance, by assertedly:

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a.

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speedy trial;

advising Petitioner not to waive his right to a

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b.

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filing no pretrial motions and conducting no

defense investigation;

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c.

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failing to seek allegedly essential jury

instructions; and

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telling the jury that Petitioner was guilty.

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2.

Petitioner allegedly received an unconstitutional sentence;

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Petitioner’s appellate counsel assertedly rendered

and

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ineffective assistance by assertedly:

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a.

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failing to discover and challenge the alleged

sentencing errors mentioned in Ground Two;

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///

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///
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b.

failing to challenge trial counsel’s alleged

ineffectiveness; and

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c.

failing to have the abstract of judgment corrected.

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DISCUSSION

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The “Antiterrorism and Effective Death Penalty Act of 1996"

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(“AEDPA”), signed into law April 24, 1996, amended 28 U.S.C. section

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2244 to provide a one-year statute of limitations governing habeas

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petitions filed by state prisoners:

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(d)(1) A 1-year period of limitation shall apply to an

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application for a writ of habeas corpus by a person in

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custody pursuant to the judgment of a State court.

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limitation period shall run from the latest of –

The

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(A) the date on which the judgment became final by the

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conclusion of direct review or the expiration of the time

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for seeking such review;

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(B) the date on which the impediment to filing an

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application created by State action in violation of the

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Constitution or laws of the United States is removed, if the

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applicant was prevented from filing by such State action;

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(C) the date on which the constitutional right asserted was

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initially recognized by the Supreme Court, if the right has
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been newly recognized by the Supreme Court and made

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retroactively applicable to cases on collateral review; or

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(D) the date on which the factual predicate of the claim or

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claims presented could have been discovered through the

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exercise of due diligence.

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(2) The time during which a properly filed application for

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State post-conviction or other collateral review with

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respect to the pertinent judgment or claim is pending shall

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not be counted toward any period of limitation under this

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subsection.

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“AEDPA’s one-year statute of limitations in § 2244(d)(1) applies to

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each claim in a habeas application on an individual basis.”

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v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).

Mardesich

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Petitioner’s conviction became final on August 10, 2010, upon the

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expiration of 90 days from the California Supreme Court’s May 12, 2010

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denial of Petitioner’s second petition for review.

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Quarterman, 555 U.S. 113, 119 (2009) (“direct review cannot conclude

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for purposes of § 2244(d)(1)(A) until the availability of direct

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appeal to the state courts, [citation], and to this Court, [citation]

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has been exhausted”); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.

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1999) (period of “direct review” after which state conviction becomes

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final for purposes of section 2244(d)(1) includes the 90-day period

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for filing a petition for certiorari in the United States Supreme

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Court); see also Burton v. Stewart, 549 U.S. 147, 156-57 (2007)
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See Jimenez v.

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(AEDPA’s limitations period begins to run after entry of an amended

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judgment following resentencing).

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began running on August 11, 2010, unless subsections B, C, or D of 28

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U.S.C. section 2244(d)(1) furnish a later accrual date.

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v. Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978

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(2001); see also Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010)

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(AEDPA statute of limitations is not tolled between the conviction’s

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finality and the filing of the first state collateral challenge).

Hence, the statute of limitations

See Patterson

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Subsection B of section 2244(d)(1) is inapplicable.

Petitioner

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does not allege, and the record does not show, that any illegal

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conduct by the state or those acting for the state “made it impossible

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for him to file a timely § 2254 petition in federal court.”

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Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009).4

See

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Subsection C of section 2244(d)(1) is also inapplicable.

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Petitioner does not assert any claim based on a constitutional right

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“newly recognized by the Supreme Court and made retroactively

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applicable to cases on collateral review.”

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545 U.S. 353, 360 (2005) (construing identical language in section

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2255 as expressing “clear” congressional intent that delayed accrual

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inapplicable unless the United States Supreme Court itself has made

See Dodd v. United States,

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As discussed below, Petitioner argues that the Superior
Court’s failure to notify Petitioner of its August 5, 2010 denial
order warrants equitable tolling. Petitioner does not argue, and
the record does not show, that any alleged failure by the
Superior Court to provide notice was the result of any illegal
conduct by the State or its representatives. Moreover, as
discussed below, Petitioner has not shown that the Superior
Court’s alleged failure to give timely notice made it
“impossible” for Petitioner to file a timely federal petition.
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the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001)

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(for purposes of second or successive motions under 28 U.S.C. section

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2255, a new rule is made retroactive to cases on collateral review

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only if the Supreme Court itself holds the new rule to be

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retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002),

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cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity

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principles of Teague v. Lane, 489 U.S. 288 (1989), to analysis of

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delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)).

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Section 2244(d)(1)(D) does not furnish an accrual date later than

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August 11, 2010, for Petitioner’s claims.

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2244(d)(1)(D), the “‘due diligence’ clock starts ticking when a person

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knows or through diligence could discover the vital facts, regardless

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of when their legal significance is actually discovered.”

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Gonzalez, 683 F.3d 1230, 1235 (9th Cir.), cert. denied, 133 S. Ct. 769

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(2012); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001); see

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also United States v. Pollard, 416 F.3d 48, 55 (D.D.C. 2005), cert.

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denied, 547 U.S. 1021 (2006) (habeas petitioner’s alleged “ignorance

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of the law until an illuminating conversation with an attorney or

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fellow prisoner” does not satisfy the requirements of section

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2244(d)(1)(D)).

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during trial, the “vital facts” underlying his claims of alleged

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ineffective assistance of trial counsel (all of which concern

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counsel’s alleged errors before and during trial).

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should have known, no later than the conclusion of sentencing, the

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“vital facts” underlying his claim of alleged sentencing error.

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Petitioner knew or should have known, by the conclusion of his appeal

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in the Court of Appeal, the “vital facts” underlying his claim of

Under section

Ford v.

Petitioner knew or should have known, prior to or

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Petitioner knew or

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ineffective assistance of appellate counsel.

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Accordingly, the one-year statute of limitations began running on

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August 11, 2010.

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on May 10, 2012.5

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untimely.

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below, there does not exist sufficient tolling to render the present

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Petition timely.

Petitioner constructively filed the present Petition
Absent sufficient tolling, the Petition is

See Patterson v. Stewart, 251 F.3d at 1246.

As discussed

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Section 2244(d)(2) tolls the statute of limitations during the

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pendency of “a properly filed application for State post-conviction or

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other collateral review.”

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Petitioner constructively filed his Court of Appeal habeas petition on

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March 4, 2011.

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1999), cert. denied, 529 U.S. 1104 (2000) (AEDPA statute of

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limitations is not tolled between the conviction’s finality and the

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filing of the first state collateral challenge).6

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entitled to statutory tolling for the time during which his Court of

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Appeal habeas petition was pending, from March 4, 2011, through

The statute ran for 205 days until

See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.

Petitioner is

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The Court assumes arguendo that Petitioner filed the
present Petition on its signature and service date of May 10,
2012. See Porter v. Ollison, 620 F.3d at 958 (prison mailbox
rule applies to federal habeas petitions).
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Petitioner’s first state habeas corpus petition in the
Superior Court was filed on July 18, 2010, and denied on
August 5, 2010, prior to the date his conviction became final on
August 10, 2010. Therefore, this petition cannot support
statutory tolling. See Thomas v. Salazar, 559 F. Supp. 2d 1063,
1067 (C.D. Cal. 2008) (where Superior Court denied habeas
petition before petitioner’s conviction became final, “this
habeas petition did not toll the statute of limitations, which
had not yet begun to run”) (citations omitted).
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April 21, 2011.7

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limitations period.

As of April 21, 2011, 160 days remained in the

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Petitioner is not entitled to statutory tolling during the period

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from the Court of Appeal’s April 21, 2011 order through the Superior

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Court’s June 21, 2011 order amending the abstract of judgment.

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Wall v. Kholi, 131 S. Ct. 1278, 1282 (2011), the Supreme Court held

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that statutory tolling applied during the pendency of a post-

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conviction motion for reduction of sentence.

In

The Court reasoned that

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“collateral review” in section 2244(d)(2) meant “judicial review of a

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judgment in a proceeding that is not part of direct review,” and that

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“review” meant “an act of inspecting or examining,” or a “judicial

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reexamination.”

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occurs when a reviewing court reconsiders the work of the original

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court to correct any error or infelicity committed by that original

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court - or rather, submits that original court’s work to examination

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for potential revision.”

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Cir.), cert. denied, 133 S. Ct. 149 (2012).

Id. at 1284-85.

Under Wall v. Kholi, “‘review’

Collins v. Ercole, 667 F.3d 247, 251 (2d

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In the present case, the Court of Appeal’s April 21, 2011

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decision denied the petition on the merits, but also issued an order

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to show cause to the Director of the California Department of

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Corrections and Rehabilitation regarding clerical errors in the

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abstract of judgment, returnable in the Superior Court.

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Court of Appeal had completed its review of the merits and directed

Because the

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The Court assumes arguendo Petitioner filed this state
petition on its signature date. See Porter v. Ollison, 620 F.3d
at 958 (prison mailbox rule applies to federal habeas petitions).
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further proceedings only because of clerical errors in the abstract of

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judgment, during the period from April 21, 2011, to June 21, 2011,

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there existed no “application for State post-conviction or other

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collateral review with respect to the relevant judgment or claim”

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within the meaning of section 2244(d)(2).

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Fed. App’x 336, 338-39 (5th Cir.), cert. denied, 131 S. Ct. 824 (2010)

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(proceedings seeking entry of nunc pro tunc judgment following date

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conviction became final did not warrant statutory tolling, where such

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proceedings were limited to correction of clerical errors in the

See Harrelson v. Swan, 381

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judgment); cf. Brumfield v. Cate, 2010 WL 2267504, at *2 (N.D. Cal.

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June 4, 2010) (rejecting argument that judgment became final when

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Superior Court amended abstract of judgment to correct clerical error;

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“the correction was not and could not have been used to change the

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effect of the original judgment”); cf. also Speller v. Johnson, 2012

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WL 1038624, at *9 n.21 (E.D. Va. Mar. 27, 2012) (“the courts have

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uniformly held that when a court corrects a clerical error in a

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criminal judgment, the AEDPA’s one-year limitations period does not

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begin anew when the court corrects the clerical error”) (citations and

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internal quotations omitted); Hamlin v. Swarthout, 2010 WL 5348754, at

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*3 n.6 (C.D. Cal. Sept. 8, 2010), adopted, 2010 WL 5367554 (C.D. Cal.

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Dec. 18, 2010) (rejecting argument that conviction became final when

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Superior Court filed an amended abstract of judgment); Martin v.

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Province, 2010 WL 5093403, at *2 n.1 (N.D. Okla. Dec. 8, 2010)

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(amendment of judgment to correct clerical error did not restart

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limitations period).

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Petitioner also is not entitled to statutory tolling during the
pendency of Petitioner’s subsequent petition for writ of mandate in
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the Court of Appeal.

See Meadows v. Jacquez, 242 Fed. App’x 453, 455

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(9th Cir. 2007), cert. denied, 552 U.S. 1192 (2008) (mandamus

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petitions to compel discovery did not warrant statutory tolling

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because “they were not applications for State post-conviction or other

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collateral review within the meaning of AEDPA”) (original emphasis);

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Westin v. Harris, 2012 WL 2860511, at *4 (C.D. Cal. July 3, 2012),

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adopted, 2012 WL 2849394 (C.D. Cal. July 11, 2012) (“petitioner’s

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various petitions for writ of mandamus relating to the restitution

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orders, his supposed inability to file pleadings in the superior

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court, and the conditions of probation did not statutorily toll the

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limitations period”) (citations omitted); Thomas v. Salazar, 559 F.

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Supp. 2d at 1067-68 (petitions for mandamus, including petition

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seeking order requiring superior court to rule on petitioner’s habeas

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petition, did not qualify for statutory tolling); see also Moore v.

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Cain, 298 F.3d 361, 366-67 (5th Cir. 2002), cert. denied, 537 U.S.

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1236 (2003) (mandamus application seeking to compel trial court to

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perform its duty did not seek review of the judgment, and hence did

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not qualify for statutory tolling).

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Petitioner next constructively filed his California Supreme Court

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petition on November 17, 2011.

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petitioner may be entitled to “gap tolling” between the denial of a

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state habeas petition and the filing of a “properly filed” habeas

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petition in a higher state court.

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219-221 (2002).

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“properly filed” petition for purposes of statutory tolling under

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section 2244(d)(2).

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Carey v. Saffold, 536 U.S. at 225 (California state habeas petition

In certain circumstances, a habeas

See Carey v. Saffold, 536 U.S. 214,

However, an untimely state habeas petition is not a

Pace v. DiGuglielmo, 544 U.S. 408, 412-13 (2005);

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filed after unreasonable delay not “pending” for purposes of section

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2244(d)(2)); see also Evans v. Chavis, 546 U.S. 189, 191 (2006) (“The

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time that an application for state postconviction review is ‘pending’

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includes the period between (1) a lower court’s adverse determination,

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and (2) the prisoner’s filing of a notice of appeal, provided that the

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filing of the notice of appeal is timely under state law”) (citation

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omitted).

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The California Supreme Court denied Petitioner’s petition

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summarily.

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without a “clear indication” that the petition was timely or untimely,

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a federal habeas court “must itself examine the delay in each case and

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determine what the state courts would have held in respect to

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timeliness.”

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Ayers, 614 F.3d 964, 969 (9th Cir. 2010), cert. denied, 131 S. Ct.

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3023 (2011) (“We cannot infer from a decision on the merits, or a

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decision without explanation, that the California court concluded that

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the petition was timely.”) (citation omitted).

Where, as here, a state court denies a habeas petition

Evans v. Chavis, 546 U.S. at 198; see also Banjo v.

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In California, a petition is timely if filed within a “reasonable

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time” after the petitioner learns of the grounds for relief.

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Saffold, 536 U.S. at 235 (citations omitted).

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petitioner delayed over three years before filing his state court

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habeas petition, and failed to provide justification for six months of

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the delay.

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deemed the petition untimely, finding “no authority suggesting, . . .

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[or] any convincing reason to believe, that California would consider

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an unjustified or unexplained 6-month filing delay ‘reasonable.’”

In Evans v. Chavis, the

Evans v. Chavis, 546 U.S. at 192, 201.

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Carey v.

The Supreme Court

Id.

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at 201.

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following the Court of Appeal’s denial of Petitioner’s habeas petition

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on April 21, 2011, before constructively filing his California Supreme

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Court petition on November 17, 2011.

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unreasonable gaps much shorter than the gap in the present case.

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Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir.), cert. denied, 132

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S. Ct. 554 (2011) (unjustified gaps of 91 and 81 days unreasonable);

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Banjo v. Ayers, 614 F.3d at 970 (unexplained gap of 146 days

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unreasonable); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010)

In the present case, Petitioner delayed almost seven months

The Ninth Circuit has held to be
See

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(unjustified gaps of 115 and 101 days unreasonable).

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with these authorities, Petitioner is not entitled to gap tolling

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between the Court of Appeal’s denial of Petitioner’s habeas petition

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on April 21, 2011, and the constructive filing of his California

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Supreme Court petition on November 17, 2011.

In accordance

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Therefore, the statute of limitations resumed running on

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April 22, 2011, and expired 160 days later on September 28, 2011.

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Petitioner’s subsequently-filed California Supreme Court petition

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cannot revive the expired statute.

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F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) (“section

21

2244(d) does not permit the reinitiation of the limitations period

22

that has ended before the state petition was filed”); Jiminez v. Rice,

23

276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003)

24

(filing of state habeas petition “well after the AEDPA statute of

25

limitations ended” does not affect the limitations bar); Webster v.

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Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991

27

(2000) (“[a] state-court petition . . . that is filed following the

28

expiration of the limitations period cannot toll that period because

See Ferguson v. Palmateer, 321

16

1

there is no period remaining to be tolled”); see also Nino v. Galaza,

2

183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104

3

(2000) (AEDPA statute of limitations is not tolled between the

4

conviction’s finality and the filing of the first state collateral

5

challenge).

6

Supreme Court habeas petition was not “properly filed” and thus would

7

fail to trigger statutory tolling in any event.

8

equitable tolling, the present Petition is untimely.

Moreover, due to Petitioner’s unreasonable delay, the

Therefore, absent

9
10

AEDPA’s statute of limitations is subject to equitable tolling

11

“in appropriate cases.”

12

(2010) (citations omitted).

13

‘equitable tolling’ only if he shows ‘(1) that he has been pursuing

14

his claims diligently, and (2) that some extraordinary circumstance

15

stood in his way’ and prevented timely filing.”

16

Pace v. DiGuglielmo, 544 U.S. at 418); see also Lawrence v. Florida,

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549 U.S. 327, 336 (2007).

18

equitable tolling “is very high, lest the exceptions swallow the

19

rule.”

20

cert. denied, 130 S. Ct. 244 (2009) (citations and internal quotations

21

omitted).

22

equitable tolling.

23

Cir. 2009).

24

circumstances” were the “cause of [the] untimeliness.”

25

Lampert, 465 F.3d 964, 969 (9th Cir. 2006), cert. denied, 549 U.S.

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1317 (2007) (brackets in original; quoting Spitsyn v. Moore, 345 F.3d

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796, 799 (9th Cir. 2003)).

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force” caused the untimeliness, rather than “oversight, miscalculation

Holland v. Florida, 130 S. Ct. 2549, 2560
“[A] ‘petitioner’ is entitled to

Id. at 2562 (quoting

The threshold necessary to trigger

Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.),

Petitioner bears the burden of proving entitlement to
See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th

Petitioner must prove that the alleged “extraordinary
Roy v.

Petitioner must prove that an “external

17

1

or negligence.”

Waldron-Ramsey v. Pacholke, 556 F.3d at 1011

2

(citation and internal quotations omitted).

3
4

Petitioner argues that the Superior Court’s asserted failure to

5

inform Petitioner of the Superior Court’s August 5, 2010 denial

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justifies equitable tolling through January 7, 2011, the date

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Petitioner assertedly learned that the Superior Court had denied

8

Petitioner’s habeas petition (Reply, pp. 2-4).

9

recognized that “a prisoner’s lack of knowledge that the state courts

The Ninth Circuit has

10

have reached a final resolution of his case can provide grounds for

11

equitable tolling if the prisoner has acted diligently in the matter.”

12

Ramirez v. Yates, 571 F.3d 993, 997 (2009) (citations and internal

13

quotations omitted).

14

argument, the Court must determine:

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notice; (2) whether Petitioner acted diligently to obtain notice; and

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(3) whether the alleged delay of notice “caused the untimeliness of

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his filing and made a timely filing impossible.”

To evaluate Petitioner’s equitable tolling
(1) the date Petitioner received

Id. at 997-98.

18
19

Respondent does not dispute that Petitioner was unaware of the

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Superior Court’s August 5, 2010 order until he received the order in

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January of 2011.8

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shows Petitioner received mail from the Superior Court on January 7,

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2011 (Respondent’s Lodgment 30, p. “4 of 5").

As indicated above, Petitioner’s prison mail log

Therefore, it appears

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25
26
27
28

8

Respondent contends that Petitioner “may argue” that he
did not receive notice of the Superior Court’s denial order until
“January 6, 2012 [sic],” but references a footnote acknowledging
that Petitioner’s prison mail log shows the only mail from the
Superior Court in the relevant period “was received on January 7,
2011" (Answer, p. 12 & n.7). It thus appears that the first
quoted date may be a typographical error.
18

1

from the present record that Petitioner became aware of the Superior

2

Court’s order by January 7, 2011, at the latest.

3
4

Respondent contends that Petitioner did not act diligently

5

because Petitioner apparently did not make any inquiry to the Superior

6

Court concerning the fate of his petition until December 19, 2010,

7

some five months after he had filed the petition.

8

not, and does not decide this issue, because Petitioner has failed to

9

demonstrate that the alleged delay of notice caused the untimeliness

This Court need

10

of the present Petition and made a timely filing “impossible.”

11

Ramirez v. Yates, 571 F.3d at 997.

12

received notice of the Superior Court’s August 5, 2010 order on

13

January 7, 2011, approximately seven months remained in the

14

limitations period.

15

Petitioner’s March 4, 2011 Court of Appeal petition on April 21, 2011,

16

Petitioner still had over five months to file a timely federal

17

petition.

18

remaining time in the pursuance of a petition for writ of mandate

19

that did not toll the AEDPA statute of limitations.9

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even after the Court of Appeal denied the petition for mandate on

21

August 28, 2011, Petitioner delayed three more months before filing

See

When Petitioner assertedly

Even after the Court of Appeal denied

Petitioner failed to do so, instead squandering some of his

Furthermore,

22
23
24
25
26
27
28

9

Any alleged ignorance of the law, lack of legal
sophistication or lack of legal assistance in this regard cannot
justify equitable tolling. See Waldron-Ramsey v. Pacholke, 556
F.3d at 1013 n.4 (“we have held that a pro se petitioner’s
confusion or ignorance of the law is not, itself, a circumstance
warranting equitable tolling”) (citation omitted); Raspberry v.
Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“we now join our
sister circuits and hold that a pro se petitioner’s lack of legal
sophistication is not, by itself, an extraordinary circumstance
warranting equitable tolling”).
19

1

his California Supreme Court petition.

2

this time.

3

Court’s August 4, 2010 order cannot have been “the cause of

4

[Petitioner’s] untimeliness.”

5

Ramirez v. Yates, 2010 WL 3325610, at *4 (N.D. Cal. Aug. 23, 2010) (on

6

remand from Ninth Circuit, petitioner failed to show an entitlement to

7

equitable tolling where, “[r]ather than filing a federal habeas

8

petition as soon as possible [after he received notice of state court

9

ruling], petitioner filed various other motions in state and federal

10

court”).

The statute expired during

Therefore, any alleged lack of notice of the Superior

See Spitsyn v. Moore, 345 F.3d at 799;

The Petition is untimely.

11
RECOMMENDATION

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13
14

For the reasons discussed above, IT IS RECOMMENDED that the Court

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issue an order:

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Recommendation; (2) directing that Judgment be entered denying and

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dismissing the Petition with prejudice.

(1) approving and accepting this Report and

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20

DATED:

February 20, 2013.

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______________/S/__________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

4

objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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If the District Judge enters judgment adverse to Petitioner, the

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District Judge will, at the same time, issue or deny a certificate of

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appealability.

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and Recommendation, the parties may file written arguments regarding

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whether a certificate of appealability should issue.

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Within twenty (20) days of the filing of this Report