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