Value Rental Car Inc. v. Kennard J. Shiloh

Filing 10

ORDER (1) Accepting Report and Recommendation of United States Magistrate Jduge and (2) Denying Habeas Petition, Certificate of Appealability and Evidentiary Hearing by Judge John F. Walter: Accordingly, IT IS ORDERED THAT: The Report and Recommendation is approved and accepted; Judgment be entered denying the Petition and dismissing this action with prejudice; and The Clerk serve copies of this Order on the parties. See document for further information. (lwag)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MANUEL HEIM,
Petitioner,

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v.

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T. PEREZ, Warden, et al.,
Respondents.

Case No. LA CV 15-2059 JFW (JCG)
ORDER (1) ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE AND
(2) DENYING HABEAS PETITION,
CERTIFICATE OF APPEALABILITY,
AND EVIDENTIARY HEARING

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate
Judge’s Report and Recommendation (“R&R”), Petitioner’s Objections to the R&R,
and the remaining record, and has made a de novo determination.
In his Objections, Petitioner opposes the R&R’s conclusion that the Petition is
untimely under the Antiterrorism and Effective Death Penalty Act (“AEDPA”).
(Objections at 1-8.) Petitioner raises three arguments, all of which must fail.
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Statutory Tolling

First, Petitioner argues that his Petition is rendered timely by statutory tolling.
(Objections at 2-4, 8.) Specifically, Petitioner argues that he is entitled to statutory

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tolling “from the date of his first state [h]abeas petition . . . until the denial of his last
state habeas petition.” (Objections at 2.)
As a matter of law, Petitioner is incorrect. See Callender v. Knipp, 2014 WL

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435971, at *3 (C.D. Cal. Jan. 30, 2014) (AEDPA’s limitation period is tolled “during
the pendency of one full round of state collateral review, which includes the intervals
between a lower court decision and the filing of a petition in a higher court, so long as
the petitioner does not unreasonably delay between filings”) (emphasis added); Banjo
v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010) (“[P]eriods between different rounds of
collateral attack are not tolled.”).1
Thus, the Court finds that no additional statutory tolling – beyond that already

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calculated by the Magistrate Judge – is warranted here. (See R&R at 3-4.)
2.

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Second, Petitioner argues that his Petition is rendered timely by equitable

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tolling. (Objections at 2-3, 5.) In particular, Petitioner argues that he is entitled to
equitable tolling because: (1) due to a facility transfer, he belatedly learned of the
California Supreme Court’s decision regarding his petition for review, (2) he is “a
layman at law,” unfamiliar with the court’s procedures, and (3) “[h]e waited nearly one
year[,] th[e]n spoke to a fellow inmate who is also not a lawyer.” (Objections at 2-3.)
As a rule, AEDPA’s limitation period is subject to equitable tolling only if

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Petitioner can show that (1) he pursued his rights diligently and (2) an “extraordinary
circumstance prevented timely filing.” Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir.

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Equitable Tolling

Petitioner also seeks additional statutory tolling for a petition for mandate that he supposedly

sent to the California Supreme Court on June 2, 2014 – the exact date of the AEDPA limitation
period’s expiration, as determined by the Magistrate Judge – but argues that apparently never reached
the court either because it was “lost” in the mail or because “one of the CDC staff was playing games
with [Petitioner].” (Objections at 3, 36-37.) Notably, a review of the prison’s database revealed no
outgoing legal mail for Petitioner in June 2014. (Id. at 20-21.) In any case, however, statutory
tolling is available only for “properly filed” applications for collateral review, and thus would not
apply here. See 28 U.S.C. § 2244(d)(2); Artuz v. Bennett, 531 U.S. 4, 8 (2000) (“[A]n application is
‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and
rules governing filings.”) (emphasis in original).

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2014). Generally, “the threshold necessary to trigger equitable tolling [under AEDPA]
is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063,
1066 (9th Cir. 2002).
Here, most of the experiences alleged are not “extraordinary circumstances” for

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the purposes of equitable tolling analysis. See Johnson v. United States, 544 U.S. 295,
311 (2005) (“[W]e have never accepted pro se representation alone or procedural
ignorance as an excuse for prolonged inattention when a statute’s clear policy calls for
promptness[.]”); Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (no tolling
for delay caused by “reliance on [inmate] helpers”); Corrigan v. Barbery, 371
F. Supp. 2d 325, 330 (W.D.N.Y. 2005) (“In general, the difficulties attendant on prison
life, such as transfers between facilities . . . do not by themselves qualify as
extraordinary circumstances.”). However, “a prisoner’s lack of knowledge that the
state courts have reached a final resolution of his case” can constitute extraordinary
circumstances, and thus “provide grounds for equitable tolling if the prisoner has acted
diligently in the matter.” Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (citation
omitted) (emphasis added). Significantly, in the Ninth Circuit, a petitioner must “show
diligence through the time of filing [his federal petition], even after the extraordinary
circumstances have ended.” Luna v. Kernan, 784 F.3d 640, 651 (9th Cir. 2015).
The Court finds no such diligence here. While Petitioner’s notice regarding the
Supreme Court’s decision may have been delayed,2 Petitioner waited more than a year
after the petition’s filing to follow up with either his attorney or the court. (See
Objections at 3, 13-15, 29, 32); see also Ramirez, 571 F.3d at 997 (noting relevance of
whether petitioner “acted diligently to obtain notice”). Moreover, Petitioner was made
aware of his state case’s completion at least as early as October 2014. (See Objections

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The Court notes that Petitioner’s appellate attorney told Petitioner to “keep [him] informed as

to any change in [his] mailing address[,]” but does not know if Petitioner complied with that
instruction. (Objections at 12.)

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at 28, 48-49.) Yet Petitioner still waited until October 2015 – nearly a year later – to
file his federal habeas petition. (See Pet. at 1, 38.)
Thus, in light of these self-inflicted and unexplained delays, the Court cannot
find that Petitioner exercised such diligence as might justify equitable tolling. See
Ramirez, 571 F.3d at 997; Majano v. Long, 2015 WL 1612016, at *7-10 (C.D. Cal.
Apr. 8, 2015) (finding a lack of diligence where Petitioner allowed an “inexplicable
four-month delay” between belatedly learning that his conviction was final and filing
his federal petition).
3.

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Actual Innocence

Third, Petitioner argues that he is “actually innocent of the crime charged” and
thus entitled to the “gateway” benefit of Schlup v. Delo, 513 U.S. 298 (1995).
(Objections at 5-7.) For the reasons already set forth by the Magistrate Judge, the
Court is unpersuaded. (See R&R at 4-6.)
Thus, in sum, the Court finds that tolling is unwarranted, the Schlup gateway is
unavailable, and the Petition is untimely.
Accordingly, IT IS ORDERED THAT:
1.

The Report and Recommendation is approved and accepted;

2.

Judgment be entered denying the Petition and dismissing this action with

prejudice; and
3.

The Clerk serve copies of this Order on the parties.

Additionally, for the reasons stated in the Report and Recommendation and
above, the Court finds that Petitioner has not shown that “jurists of reason would find
it debatable whether”: (1) “the petition states a valid claim of the denial of a
constitutional right”; and (2) “the district court was correct in its procedural ruling.”
See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, the Court declines to issue a
certificate of appealability.
Nor is Petitioner entitled to an evidentiary hearing. See Cullen v. Pinholster,
131 S. Ct. 1388, 1398 (2011) (AEDPA “requires an examination of the state court4

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decision at the time it was made. It follows that the record under review is limited to
the record in existence at that same time i.e., the record before the state court.”).

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DATED:

December 3, 2015

_______________
HON. JOHN F. WALTER
UNITED STATES DISTRICT JUDGE

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