Donta C Green v. J. Soto

Filing 13

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Valerie Baker Fairbank. 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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DONTA C. GREEN,

) NO. CV 15-5775-VBF(E)
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Petitioner,
)
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v.
) REPORT AND RECOMMENDATION OF
)
J. SOTO,
) 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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Valerie Baker Fairbank, United States District Judge, pursuant to the

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provisions of 28 U.S.C. section 636 and General Order 05-07 of the

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United States District Court for the Central District of California.

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PROCEEDINGS

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Petitioner filed a “Petition for Writ of Habeas Corpus By a

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Person in State Custody” on July 30, 2015.

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the sufficiency of the evidence to support Petitioner’s January 14,

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2011 prison disciplinary conviction for possession of a controlled

The Petition challenges

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substance for sales and distribution.

Narcotics and other related

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items were found in Petitioner’s shared cell.

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contends that, under In re Rothwell, 164 Cal. App. 4th 160, 78 Cal.

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Rptr. 3d 723 (2008) (“Rothwell”), contraband in the possession of

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another can be deemed to be within the constructive possession of the

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defendant only where the defendant maintains control or the right to

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control the contraband (see Petition, ECF Dkt. No. 1, p. 6).1

Petitioner essentially

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Respondent filed a Motion to Dismiss on August 28, 2015,

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asserting that the Petition is untimely and procedurally defaulted.

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Petitioner filed an Opposition to the Motion to Dismiss on

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September 21, 2015.

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BACKGROUND

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On November 17, 2010, the Investigative Services Unit at the

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California Substance Abuse Center and State Prison conducted targeted

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canine cell searches of suspected drug dealers (Respondent’s Ex. 1;

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Petition, Exhibits, ECF Dkt. 1, p. 34).

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of an odor of contraband in the upper bunk area in cell 212, a cell

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occupied by Petitioner and Petitioner’s cellmate Lopez (Respondent’s

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Ex. 1; Petition, Exhibits, ECF Dkt. 1, p. 34).

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revealed two large bindles lying under a blanket on the mattress of

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the top bunk (Respondent’s Ex. 1; Petition, Exhibits, ECF Dkt. 1, p.

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34).

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Ex. 1; Petition, Exhibits, ECF Dkt. 1, p. 36).

A dog alerted to the presence

A search of the cell

The combined weight of the bindles was 62.6 grams (Respondent’s
The two large bindles

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Because the Petition and attachments do not bear
consecutive page numbers, the Court cites to the ECF pagination.
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contained 45 smaller bindles, which tested positive for

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methamphetamine and heroin (Respondent’s Lodgment 1; Petition,

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Exhibits, ECF Dkt. 1, p. 34).

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A subsequent search revealed three additional bindles hidden

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inside the upper bunk mattress (Petition, Exhibits, ECF Dkt. 1, pp.

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35-36).

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jar containing a cell phone and cell phone charger (id., pp. 36, 41).

A shelf on a shelving unit in the cell held a peanut butter

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Petitioner declined to make a statement to the investigative

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employee, but provided a written list of questions “for persons

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involved in his defense” (id., p. 43).

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investigative employee that the narcotics were found on Lopez’ bunk

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but denied prior knowledge that the narcotics were in the cell (id.).

Inmate Lopez admitted to the

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At the hearing on January 14, 2011, Petitioner pled not guilty

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and stated: “I had no knowledge that it was in the cell.

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mine.” (id., p. 46).

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he had no knowledge of it or that I had it.

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2010.

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it away the next day, but they came in.” (id.).

It wasn’t

Inmate Lopez then stated: “The stuff was mine,
I received it on 11-06-

I bagged it up while he was in the dayroom.

I was going to put

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The hearing officer found Petitioner guilty, based on, among

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other things, the reporting employee’s Rules Violation Report, a Crime

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Incident Report, toxicology reports, photographic evidence, the amount

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of the heroin and methamphetamine found, and Petitioner’s failure to

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submit evidence to refute or mitigate the charge (id., pp. 48-50).

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Petitioner was assessed a 180-day credit loss (id., p. 50).
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Petitioner submitted an administrative appeal of his conviction

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(see Respondent’s Ex. 2).

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the final, director’s level of review (id.).

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tit. 15, § 3084.7 (describing levels of administrative review in state

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prisons).

On August 2, 2011, the appeal was denied at
See Cal. Code of Regs.,

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On October 14, 2011, Petitioner filed a habeas corpus petition in

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the Kings County Superior Court, which that court denied on

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December 15, 2011, on the ground that “some evidence” existed to

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support Petitioner’s disciplinary conviction under the standard set

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forth in Superintendent, Massachusetts Correctional, Inst. v. Hill,

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472 U.S. 445, 457 (1985) (Respondent’s Ex. 3; Petition, Exhibits, ECF

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Dkt 1, p. 32).

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petition in the California Court of Appeal, which that court denied on

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May 23, 2013, likewise finding “some evidence” to support the

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conviction (Respondent’s Ex. 4; Petition, Exhibits, ECF Dkt. 1, p.

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31).

On April 18, 2013, Petitioner filed a habeas corpus

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On September 16, 2014, Petitioner filed a second habeas corpus

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petition in the Kings County Superior Court (Petition, Exhibits, ECF

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Dkt. 1, pp. 16-17).2

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November 24, 2014, as repetitive and untimely (id.).

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noted that Rothwell was not “new law” sufficient to require

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reconsideration of the court’s prior denial of Petitioner’s request

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for habeas relief (id.).

The Superior Court denied the petition on
The court also

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On December 16, 2014, Petitioner filed a second habeas corpus

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petition in the California Court of Appeal, which that court denied on

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February 27, 2015 (Petition, Exhibits, ECF Dkt. 1, p. 19).

The Court

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of Appeal observed that Rothwell did not present new law and did not

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demonstrate that the disciplinary conviction was unsupported by “some

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evidence” (id.).

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On March 23, 2015, Petitioner filed a habeas corpus petition in

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the California Supreme Court, which that court denied on July 8, 2015,

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with citations to In re Robbins, 18 Cal. 4th 770, 77 Cal. Rptr. 2d

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153, 959 P.2d 311 (1998), and In re Dexter, 25 Cal. 3d 921, 160 Cal.

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Rptr. 118, 120, 603 P.2d 35 (1979) (“Dexter”) (Respondent’s Ex. 5;

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Petition, Exhibits, ECF Dkt 1, p. 20).

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signified that the Supreme Court deemed the petition to be untimely.

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See Walker v. Martin, 562 U.S. 307, 310 (2011); Lee v. Jacquez, 788

The citation to In re Robbins

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With one exception, the record does not contain copies
of any of Petitioner’s state habeas corpus petitions. Petitioner
attaches to the Petition a copy of a habeas petition directed to
the Kings County Superior Court, but this petition does not bear
a file stamp, a case number, a signature or a signature date (see
Petition, Exhibits, ECF Dkt. 1, pp. 21-30). However, this
petition mentions the denials of Petitioner’s 2011 Kings County
Superior Court petition and his first Court of Appeal petition,
so possibly it is a copy of Petitioner’s second Superior Court
petition.
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F.3d 1124, 1129 (9th Cir. 2015); Gaston v. Palmer, 417 F.3d 1030,

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1036-37 (9th Cir. 2005), modified, 447 F.3d 1165 (9th Cir. 2006),

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cert. denied, 549 U.S. 1134 (2007); Bennett v. Mueller, 322 F.3d 573,

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578-79 (9th Cir.), cert. denied, 540 U.S. 938 (2003).

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that, as a general rule, a litigant may not obtain judicial relief

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unless the litigant has exhausted available state administrative

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remedies.

Dexter holds

Dexter, 25 Cal. 3d at 925.

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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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Section 2244(d)(1)(D), not section 2244(d)(1)(A), generally

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governs the accrual of claims challenging a prison disciplinary

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decision.

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2004).

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disciplinary decision typically accrues no later than the conclusion

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of the administrative appeal.

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at *2 (E.D. Cal. Mar. 6, 2013).

See Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir.

Under section 2244(d)(1)(D), a claim challenging a prison

Id.; Tidwell v. Martel, 2013 WL 856734,

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Petitioner asserts, however, that the limitations period did not

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commence until Petitioner learned of the Rothwell decision, (although

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Petitioner fails to allege when he assertedly acquired that

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knowledge).

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ticking when a person knows or through diligence could discover the

Under subsection D, the “‘due diligence’ clock starts

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vital facts, regardless of when their legal significance is actually

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discovered.”

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denied, 133 S. Ct. 769 (2012); Hasan v. Galaza, 254 F.3d 1150, 1154

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n.3 (9th Cir. 2001); see also United States v. Pollard, 416 F.3d 48,

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55 (D.D.C. 2005), cert. denied, 547 U.S. 1021 (2006) (habeas

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petitioner’s alleged “ignorance of the law until an illuminating

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conversation with an attorney or fellow prisoner” does not satisfy the

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requirements of section 2244(d)(1)(D)).

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have known the “vital facts” supporting his challenge to his

Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir.), cert.

Petitioner knew or should

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disciplinary conviction no later than the date of the final

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administrative denial, August 2, 2011.

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limitations does not await the issuance of judicial decisions that

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might help would-be petitioners recognize the legal significance of

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particular predicate facts.

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1089 (9th Cir. 2005), cert. denied, 546 U.S. 1171 (2006) (intervening

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state court decision establishing abstract proposition of law arguably

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helpful to petitioner does not constitute a “factual predicate” under

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section 2244(d)(1)(D)).3

The running of the statute of

See Shannon v. Newland, 410 F.3d 1083,

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Accordingly, the limitations period in the present case commenced

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running no later than August 3, 2011 (the day after the conclusion of

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Petitioner’s administrative appeal), unless subsection B or C of 28

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Furthermore, as Rothwell itself indicates, the
“constructive possession” rule upon which Petitioner purports to
rely was well established in California at the time the Rothwell
Court issued its decision in 2008. See Rothwell, 164 Cal. App.
4th at 170-71 (citing cases). In denying Petitioner habeas
relief, both the Superior Court and the Court of Appeal stated
that Rothwell did not establish any new rule of law in
California.
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U.S.C. section 2244(d)(1) furnishes a later accrual date.

See

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Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied,

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534 U.S. 978 (2001).

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Petitioner asserts an entitlement to deferred accrual pursuant to

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subsection B, arguing that state-created impediments purportedly

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prevented Petitioner from filing a federal habeas petition.

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Petitioner contends that the prison at which he is incarcerated does

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not assist inmates, and that the law library has only six computers

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and can hold only six people, with room for another twelve people in

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“overflow” (Opposition, pp. 1-2).

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the Superior Court for failing to advise Petitioner of the existence

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of the Rothwell case (id.).

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received help from another inmate, and again contends that the

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limitations period purportedly did not begin to run until Petitioner

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assertedly became aware of the Rothwell case (id.).

Petitioner also appears to fault

Petitioner contends that he eventually

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To warrant delayed accrual on account of a “state impediment,”

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Petitioner must show that conduct by the state or those acting for the

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state “made it impossible for him to file a timely § 2254 petition in

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federal court.”

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2009).

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unlawful impediment and his or her failure to file a timely petition.

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Bryant v. Arizona Atty. General, 499 F.3d 1056, 1059-60 (9th Cir.

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2007) (citations omitted).

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than that for equitable tolling.”

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A petitioner is entitled to delayed accrual only if the impediment

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“altogether prevented him from presenting his claims in any form, to

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

Petitioner also must show a causal connection between the

Petitioner “must satisfy a far higher bar
Ramirez v. Yates, 571 F.3d at 1000.

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any court.”

Id. at 1001 (emphasis original; citation omitted).

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Subsection B conceivably might apply if a prison law library were

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so inadequate as not even to include the code section containing the

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statute of limitations itself.

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1146, 1148 (9th Cir. 2002).

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the alleged limited research conditions in the law library or alleged

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lack of legal assistance prevented Petitioner from filing a timely

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federal petition.

See Whalem/Hunt v. Early, 233 F.3d

However, Petitioner has not shown that

To the contrary, Petitioner was able to prepare and

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file his first Superior Court petition within approximately two and a

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half months of the final administrative denial.

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does not contain that Superior Court petition, it is evident from the

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Superior Court’s order denying that petition that Petitioner

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challenged the sufficiency of the evidence to support his disciplinary

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conviction.

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resources or assistance plainly do not show an impediment which

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“altogether prevented him from presenting his claims in any form, to

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any court.”

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Rothwell California case law on the issue of “constructive possession”

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constitute an “impediment” which Rothwell allegedly removed.

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Shannon v. Newland, 410 F.3d at 1087 (under section 2244(d)(1)(B),

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state courts’ previous interpretations of state law adverse to

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petitioner did not constitute “impediment” removed by later, more

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favorable decision).

Although the record

Here, Petitioner’s allegations of inadequate library

See Ramirez v. Yates, 571 F.3d at 1001.

Nor did any pre-

See

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Subsection C of section 2244(d)(1) also does not furnish a later

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accrual date.

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constitutional right “newly recognized by the Supreme Court and made

Petitioner does not assert any claim based on a

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retroactively applicable to cases on collateral review.”

See Dodd v.

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United States, 545 U.S. 353, 360 (2005) (construing identical language

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in section 2255 as expressing “clear” congressional intent that

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delayed accrual inapplicable unless the United States Supreme Court

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itself has made the new rule retroactive); Tyler v. Cain, 533 U.S.

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656, 664-68 (2001) (for purposes of second or successive motions under

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28 U.S.C. section 2255, a new rule is made retroactive to cases on

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collateral review only if the Supreme Court itself holds the new rule

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

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2002), 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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Accordingly, the statute of limitations began running on

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August 3, 2011.

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Petitioner constructively filed the present Petition nearly four years

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later, on July 29, 2015.4

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exception, the Petition is untimely.

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

Absent sufficient tolling or an equitable

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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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between the conviction’s finality and the filing of Petitioner’s first

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state habeas petition.

The statute of limitations is not tolled

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

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The Petition does not bear a signature date or a proof
of service. The Court assumes arguendo that Petitioner
constructively filed the Petition on the date he lodged it with
this Court, July 29, 2015.
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Cir. 1999), cert. denied, 529 U.S. 1104 (2000).

Here, the limitations

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period ran until October 14, 2011, when Petitioner filed his first

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Superior Court petition, and was tolled from that date until

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December 15, 2011, when the Superior Court denied that petition.

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that time, less than 300 days remained in the limitations period.

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Petitioner did not file his next state habeas petition until April 18,

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2013, approximately a year and four months later.

At

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In certain circumstances, a habeas petitioner may be entitled to

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“gap tolling” between the denial of a state habeas petition and the

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filing of a “properly filed” habeas petition in a higher state court.

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See Carey v. Saffold, 536 U.S. 214, 219-221 (2002).

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untimely state habeas petition is not a “properly filed” petition for

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purposes of statutory tolling under section 2244(d)(2).

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DiGuglielmo, 544 U.S. 408, 412-13 (2005); Carey v. Saffold, 536 U.S.

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at 225 (California state habeas petition filed after unreasonable

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delay not “pending” for purposes of section 2244(d)(2)); see also

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Evans v. Chavis, 546 U.S. 189, 191 (2006) (“The time that an

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application for state postconviction review is ‘pending’ includes the

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period between (1) a lower court’s adverse determination, and (2) the

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prisoner’s filing of a notice of appeal, provided that the filing of

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

However, an

Pace v.

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Here, the Court of Appeal denied Petitioner’s first habeas

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petition filed in that court without indicating whether the petition

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was untimely.

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without a “clear indication” that the application was timely or

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untimely, a federal habeas court “must itself examine the delay in

Where a state court denies a collateral application

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each case and determine what the state courts would have held in

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respect to timeliness.”

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

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

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a decision without explanation, that the California court concluded

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

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

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In California, a habeas petition is timely if filed within a
“reasonable time” after the petitioner learns of the grounds for

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relief.

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Evans v. Chavis, the petitioner delayed over three years before filing

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his California Supreme Court habeas petition, and failed to provide

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justification for six months of the delay.

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at 192, 201.

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untimely, finding “no authority suggesting, . . . [or] any convincing

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reason to believe, that California would consider an unjustified or

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unexplained 6-month filing delay ‘reasonable.’”

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California courts have given “scant guidance” on the issue, courts in

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this circuit apply a “thirty-to-sixty day benchmark” to determine the

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reasonableness of a delay in filing a subsequent state petition.

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Stewart v. Cate, 757 F.3d 929, 935 (9th Cir.), cert. denied, 135 S.

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Ct. 341 (2014) (citation, internal quotations and footnote omitted).

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

In

Evans v. Chavis, 546 U.S.

The United States Supreme Court deemed the petition

Id. at 201.

Because

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In the present case, Petitioner waited approximately one year and

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four months following the Superior Court’s denial before filing a

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petition in the California Court of Appeal.

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unjustified delay well exceeds those gaps the Ninth Circuit has held

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to have been unreasonable.

The length of this

See, e.g., Stewart v. Cate, 757 F.3d at
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935-36 (no gap tolling for 100 day delay; benchmark for reasonableness

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of such delays remains 30-60 days); Stancle v. Clay, 692 F.3d 948, 956

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(9th Cir. 2012), cert. denied, 133 S. Ct. 1465 (2013) (82 days);

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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) (81 days); Chaffer v. Prosper, 592 F.3d 1046, 1048

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(9th Cir. 2010) (101 days).

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authorities, Petitioner is not entitled to gap tolling between the

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Superior Court’s December 15, 2011 denial and the April 18, 2013

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filing of Petitioner’s first habeas corpus petition in the California

In accordance with these controlling

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Court of Appeal.

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April 18, 2013 Court of Appeal petition, the limitations period

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already had expired.

Accordingly, by the time Petitioner filed his

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Petitioner’s state court habeas petitions belatedly filed after

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the expiration of the limitations period cannot revive or otherwise

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toll the statute.

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Cir.), cert. denied, 540 U.S. 924 (2003) (“section 2244(d) does not

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permit the reinitiation of the limitations period that has ended

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before the state petition was filed”); Jiminez v. Rice, 276 F.3d 478,

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482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of

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state habeas petition “well after the AEDPA statute of limitations

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ended” does not affect the limitations bar); Webster v. Moore, 199

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F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) (“[a]

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state-court petition . . . that is filed following the expiration of

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the limitations period cannot toll that period because there is no

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period remaining to be tolled”).

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an equitable exception to the statute of limitations, the present

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Petition is untimely.

See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th

Hence, absent equitable tolling or

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The statute of limitations is subject to equitable tolling “in

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appropriate cases.”

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“[A] ‘petitioner’ is entitled to ‘equitable tolling’ only if he shows

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‘(1) that he has been pursuing his claims diligently, and (2) that

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some extraordinary circumstance stood in his way’ and prevented timely

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filing.”

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see also Lawrence v. Florida, 549 U.S. 327, 336 (2007).

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necessary to trigger equitable tolling “is very high, lest the

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exceptions swallow the rule.”

Holland v. Florida, 560 U.S. 631, 645 (2010).

Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. at 418);
The threshold

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

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1008, 1011 (9th Cir.), cert. denied, 558 U.S. 897 (2009) (citations

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and internal quotations omitted).

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equitable tolling.

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Cir. 2009).

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

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

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miscalculation or negligence.”

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at 1011 (citation and internal quotations omitted).

Petitioner bears the burden to show

See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th

Petitioner must show that the alleged “extraordinary
Roy v.

Petitioner also must show that an

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

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Petitioner’s alleged lack of legal sophistication, his alleged

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ignorance of the law and his alleged need to rely on assistance from a

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fellow inmate do not constitute “extraordinary circumstances” meriting

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equitable tolling.

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on jailhouse helpers “who were transferred or too busy to attend to

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[petitioner’s] petitions” did not justify equitable tolling); Waldron-

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Ramsey v. Pacholke, 556 F.3d at 1013 n.4 (“we have held that a pro se

See Chaffer v. Prosper, 592 F.3d at 1049 (reliance

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petitioner’s confusion or ignorance of the law is not, itself, a

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circumstance warranting equitable tolling”) (citation omitted);

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Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“we now join

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our sister circuits and hold that a pro se petitioner’s lack of legal

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sophistication is not, by itself, an extraordinary circumstance

6

warranting equitable tolling”); Turner v. Johnson, 177 F.3d 390, 392

7

(5th Cir.), cert. denied, 528 U.S. 1007 (1999) (“[N]either a

8

plaintiff’s unfamiliarity with the legal process nor his lack of

9

representation during the applicable filing period merits equitable

10

tolling. . . .

11

illiteracy or any other reason”); Jimenez v. Hartley, 2010 WL 5598521,

12

at *5 (C.D. Cal. Dec. 6, 2010), adopted, 2011 WL 164536 (C.D. Cal.

13

Jan. 13, 2011) (allegations that petitioner was uneducated, illiterate

14

and indigent insufficient); Oetting v. Henry, 2005 WL 1555941, at *3

15

(E.D. Cal. June 24, 2005), adopted, 2005 WL 2000977 (E.D. Cal.

16

Aug. 18, 2005) (“Neither an inmate’s ignorance of the law nor pro se

17

status are the sort of extraordinary events upon which a finding of

18

equitable tolling may be based”; see also Loza v. Soto, 2014 WL

19

1271204, at *6 (C.D. Cal. Mar. 26, 2014) (“To allow equitable tolling

20

based on the fact that most prisoners do not have legal knowledge or

21

training would create a loophole that would negate the intent and

22

effect of the AEDPA limitation period.”); cf. Hughes v. Idaho State

23

Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy and

24

pro se status insufficient cause to avoid procedural default).

It is irrelevant whether the unfamiliarity is due to

25
26

Nor do the allegedly limited library resources or Petitioner’s

27

alleged confinement in administrative segregation for an unspecified

28

period of time show any entitlement to equitable tolling.
16

See, e.g.,

1

United States v. Lemusu, 575 Fed. App’x 805, 806 (9th Cir. 2014)

2

(placement in administrative segregation is not an “extraordinary

3

circumstance” warranting equitable tolling) (citing Pace v.

4

DiGuglielmo, 544 U.S. at 418); Soto v. Lopez, 575 Fed. App’x 740 (9th

5

Cir.), cert. denied, 135 S. Ct. 376 (2014) (no entitlement to

6

equitable tolling where prisoner alleged he lacked law library access

7

and his legal materials while he was in administrative segregation and

8

during a prison transfer; petitioner had not shown that such “ordinary

9

prison limitations” were “extraordinary circumstance[s] beyond his

10

control preventing him from timely filing a federal habeas petition”)

11

(citation omitted); Rhodes v. Kramer, 451 Fed. App’x 697, 698 (9th

12

Cir. 2011) (limited library access and lockdowns did not merit

13

equitable tolling); Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir.

14

2009) (ordinary prison limitations on library access due to

15

confinement in administrative segregation insufficient to show

16

“extraordinary circumstances”).

17
18

Petitioner also contends he purportedly is a “mental health

19

patient” who began participating in the “Mental Health Program” before

20

he filed his “second state writ” (Opposition, pp. 1-2).

21

Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010), the Ninth Circuit

22

held that proof of a severe mental impairment can qualify for

23

equitable tolling where the petitioner meets a two-part test:

In Bills v.

24
25

(1) First, a petitioner must show his [or her] mental

26

impairment was an “extraordinary circumstance” beyond his

27

[or her] control [citation], by demonstrating the impairment

28

was so severe that either
17

1

(a) petitioner was unable rationally or factually to

2

personally understand the need to timely file, or

3
4

(b) petitioner’s mental state rendered him [or her] unable

5

personally to prepare a habeas petition and effectuate its

6

filing.

7
8

(2) Second, the petitioner must show diligence in pursuing the

9

claims to the extent he [or she] could understand them, but that

10

the mental impairment made it impossible to meet the filing

11

deadline under the totality of the circumstances, including

12

reasonably available access to assistance. [citation].

13
14

In the present case, Petitioner has not demonstrated the

15

existence of any severe mental impairment which rendered it impossible

16

for him to file a timely federal petition.

17

statement that he is a “mental health patient” falls far short of

18

establishing the requirements for tolling on the ground of mental

19

disability set forth in Bills v. Clark.

20

supports the conclusion that Petitioner suffered from any mental

21

impairment rendering it impossible for him to file a timely federal

22

petition.

23

Report, Petitioner was “NOT a participant in the Mental Health

24

Services Delivery System at any level of care, and he did not display

25

any bizarre, unusual, or uncharacteristic behavior at the time of the

26

rules violation” (Petition, Exhibits, ECF Dkt. 1, p. 41) (original

27

emphasis).

28

///

Petitioner’s conclusory

Nothing in the record

The Rules Violation Report stated that, at the time of the

The Rules Violation Report stated Petitioner’s TABE score

18

1

was 10.5 (id.).5

2

Petitioner was “not currently a participant in the Mental Health

3

Program at any level of care, nor did he exhibit any bizarre behavior

4

at the time of the Rules Violation Report, and therefore, a Mental

5

Health Assessment request was not completed” (id., p. 45).

6

hearing officer assertedly determined that Petitioner was capable of

7

understanding the proceedings (id.).

8

Petitioner’s state habeas petitions remotely suggests that Petitioner

9

was suffering from any mental impairment so severe that Petitioner was

The report of the disciplinary hearing stated that

The

Furthermore, nothing in any of

10

“unable rationally or factually to personally understand the need to

11

timely file” or that his mental state “rendered him unable personally

12

to prepare a habeas petition and effectuate its filing.”

13

Clark, 628 F.3d at 1099-1100; see also Alva v. Busby, 588 Fed. App’x

14

621, 622 (9th Cir. 2014) (equitable tolling based on Bills v. Clark

15

unavailable where the petitioner “does not claim that he did not

16

understand the need to file timely, or that his mental condition made

17

it impossible for him to prepare the petition personally. . . .

18

does not claim that he personally was unable to prepare the petition

19

in a timely manner for any reason aside from his lack of understanding

20

of the law”); Davis v. Mule Creek Prison, 2015 WL 4342854, at *1 (C.D.

21

Cal. July 10, 2015) (“petitioner’s conclusory statement that he

22

suffers from mental illness and receives mental health care while

23

incarcerated is insufficient to demonstrate that petitioner is

24

entitled to equitable tolling”).

See Bills v.

25
26
5

27
28

“The TABE (Tests of Adult Basic Education) scores
reflect an inmate’s educational achievement level and are
expressed in numbers reflecting grade level.” In re Roderick,
154 Cal. App. 4th 242, 253 n.10, 65 Cal. Rptr. 3d 16 (2007).
19

He

1

Although it is unclear whether Petitioner argues that his

2

purported actual innocence excuses his failure to file a timely

3

federal petition, in the Petition itself Petitioner does assert a

4

freestanding claim of alleged actual innocence (see Petition, ECF Dkt.

5

1, at p. 5).

6

through which a petitioner may pass whether the impediment is a

7

procedural bar . . . [or] expiration of the statute of limitations.”

8

McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013); see also Lee v.

9

Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en banc).

“[A]ctual innocence, if proved, serves as a gateway

However,

10

“tenable actual-innocence gateway pleas are rare.”

11

Perkins, 133 S. Ct. at 1928.

12

gateway actual innocence claims set forth in Schlup v. Delo, 513 U.S.

13

298 (1995) (“Schlup”).

14

“[A] petitioner does not meet the threshold requirement unless he

15

persuades the district court that, in light of the new evidence, no

16

juror, acting reasonably, would have voted to find him guilty beyond a

17

reasonable doubt.”

McQuiggin v.

The Court must apply the standards for

See McQuiggin v. Perkins, 133 S. Ct. at 1928.

Id. (quoting Schlup, 513 U.S. at 329).

18
19

In order to make a credible claim of actual innocence, a

20

petitioner must “support his allegations of constitutional error with

21

new reliable evidence - whether it be exculpatory scientific evidence,

22

trustworthy eyewitness accounts, or critical physical evidence - that

23

was not presented at trial.”

24

Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003), cert. denied,

25

541 U.S. 998 (2004) (holding that “habeas petitioners may pass

26

Schlup’s test by offering ‘newly presented’ evidence of actual

27

innocence”); Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (“[A]

28

claim of actual innocence must be based on reliable evidence not

Schlup, 513 U.S. at 324; see also

20

1

presented at trial.”).

2
3

Petitioner offers no new reliable evidence showing his purported

4

actual innocence.

Therefore, Petitioner has not satisfied the

5

exacting Schlup standard.

6
7

In sum, Petitioner is not entitled to equitable tolling or to the

8

application of the “actual innocence” exception to the habeas statute

9

of limitations.

The Petition is untimely.

10
RECOMMENDATION

11
12
13

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

14

issue an order: (1) accepting and adopting this Report and

15

Recommendation; and (2) denying and dismissing the Petition with

16

prejudice.

17
18

DATED:

October 6, 2015.

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20
21
22

/S/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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21

1
2

NOTICE
Reports and Recommendations are not appealable to the Court of

3

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

5

Magistrate Judges and review by the District Judge whose initials

6

appear in the docket number.

7

Federal Rules of Appellate Procedure should be filed until entry of

8

the judgment of the District Court.

No notice of appeal pursuant to the

9

If the District Judge enters judgment adverse to Petitioner, the

10

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

11

appealability.

12

and Recommendation, the parties may file written arguments regarding

13

whether a certificate of appealability should issue.

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