Jacob D. Wolf v. Rosemary Ndoh

Filing 34

MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS AND DISMISSING ACTION WITH PREJUDICE by Magistrate Judge Jean P. Rosenbluth. The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c)(1). IT THEREFORE IS ORDERED that Judgment be entered granting Respondent's motion to dismiss and dismissing the Petition with prejudice.15 19 , (bem)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

JACOB D. WOLF,

12

Petitioner,

13
14

v.
ROSEMARY NDOH, Warden,

15

Respondent.

16

)
)
)
)
)
)
)
)
)
)

Case No. CV 17-0726-JPR
MEMORANDUM DECISION AND ORDER
GRANTING MOTION TO DISMISS AND
DISMISSING ACTION WITH PREJUDICE

PROCEEDINGS

17
18

On January 25, 2017, Petitioner constructively filed a

19

Petition for Writ of Habeas Corpus by a Person in State Custody.1

20

On May 3, Respondent moved to dismiss the Petition, arguing that

21

it is time barred.

22

Respondent filed a reply on June 9.

23

a request to amend his opposition, which the Court has read and

On May 17, Petitioner filed opposition.
On June 15, Petitioner filed

24
1

25
26
27
28

Under the “mailbox rule,” a pro se prisoner’s habeas
petition is constructively filed when he gives it to prison
authorities for mailing to a court. Hernandez v. Spearman, 764
F.3d 1071, 1074 (9th Cir. 2014); see also Houston v. Lack, 487
U.S. 266, 276 (1988). Here, Petitioner gave the Petition to
prison officials on January 25, 2017. (See Lodged Doc. 18 at 23.)
1

1
2

considered.
The parties consented to the jurisdiction of the undersigned

3

U.S. Magistrate Judge under 28 U.S.C. § 636(c)(1).

4

Consent to Proceed Before U.S. Magis. Judge at 1, Feb. 13, 2017;

5

Resp’t’s Consent to Proceed Before U.S. Magis. Judge at 1, May 3,

6

2017.)

7
8

For the reasons discussed below, the Court denies the
Petition as untimely and dismisses this action with prejudice.

9
10

(See Pet’r’s

BACKGROUND
Petitioner pleaded no contest in Los Angeles County Superior

11

Court on December 12, 2014, to making criminal threats and

12

stalking.

13

years and four months in state prison.

14

at 1.)

15

the superior court on December 22, 2014 (Lodged Doc. 5; Lodged

16

Doc. 6 at 2-3), which was denied on January 7, 2015 (Lodged Doc.

17

6 at 1).

18

30, 2014.

19

29, 2015, because Petitioner had not obtained a certificate of

20

probable cause, as required by Rule 8.304(b) of the California

21

Rules of Court and Penal Code section 1237.5.

22

(order to show cause)); Cal. App. Cts. Case Info., http://

23

appellatecases.courtinfo.ca.gov/search/case/

24

dockets.cfm?dist=2&doc_id=2098497&doc_no=B261515 (last visited

25

Nov. 13, 2017) (showing dismissal order filed).

(Pet. at 2; Lodged Doc. 1.)2

He was sentenced to 12
(Pet. at 2; Lodged Doc. 1

He filed a motion for a certificate of probable cause in

Before that, he filed a notice of appeal on December
(Lodged Doc. 3.)

The appeal was dismissed on April

(See Lodged Doc. 4

26
27
2

28

Throughout, the Court uses the pagination provided by its
Case Management/Electronic Case Filing system.
2

1

On January 29, 2015, an attorney with the California

2

Appellate Project, unaware of Petitioner’s incomplete December 30

3

notice of appeal, filed a notice of appeal in the superior court

4

on Petitioner’s behalf.

5

rejected as a “duplicate” on February 4, 2015.

6

36.)

7

and request for certificate of probable cause in the superior

8

court.

9

on June 2, 2015 (id. at 5, 11), and his notice of appeal was “not

10

filed” on June 8 because it was “received after the expiration of

11

the sixty (60) day period prescribed for filing a notice” (id. at

12

11).

13

stating that he “need[ed] to withdraw [his] plea and get back

14

into court.”

15

construed the letter as a petition for writ of mandate and

16

request for rehearing, denying both on July 1, 2015, for failure

17

“to state facts sufficient to warrant relief” or “provide a

18

record adequate for review.”

19

filed a motion for relief from default for filing a late notice

20

(id. at 1-2), which the court of appeal construed as a “petition

21

for writ of late notice of appeal” and denied on August 31

22

(Lodged Doc. 8).

23

writ of mandate, which the court of appeal denied on September

24

28.

(See Lodged Doc. 9 at 28.)

It was

(See id. at 35-

On May 21, 2015, Petitioner filed another notice of appeal

(Lodged Doc. 7 at 4-11.)

That court denied his request

On May 22, 2015, he filed a letter in the superior court

(Req. to Amend at 12-13.)

The court of appeal

(Id. at 14.)

On June 8, 2015, he

On August 28, 2015, he filed a petition for a

(Lodged Doc. 13.)3

On September 4, 2015, he filed through

25
26
27
28

3

Though the court of appeal’s denial of
lodged with the Court (see Lodged Doc. 13), a
petition itself was not. But as explained in
apparently was not a collateral attack on his
3

this petition was
copy of the
Section II.B.2, it
conviction.

1

counsel a motion for reconsideration of his application for

2

relief from default (Lodged Doc. 9), which the appellate court

3

denied on September 8 (Lodged Doc. 10).

4

Petitioner constructively filed a habeas petition in the

5

state superior court on January 5, 2016, raising a single claim,

6

ineffective assistance of trial counsel.4

7

21.)

8

counsel failed to check certain boxes on his felony advisement of

9

rights, waiver, and plea form, and thus “[t]here is nothing . . .

(Lodged Doc. 11 at 3,

He argued that his counsel was ineffective in two respects:

10

that shows [he] waived any of his constitutional rights” (id. at

11

3-5); and counsel failed to “advise[ him] to accept [an] original

12

plea offer of 4 years or at least to finish his trial so as to

13

leave intact all of his appeal rights” (id. at 24).

14

On February 18, 2016, the superior court denied the petition

15

for “fail[ure] to state [a] claim upon which relief can be

16

granted.”

17

a habeas petition in the court of appeal on April 5, 2016,

18

raising the same claim (Lodged Doc. 14; see Lodged Doc. 18 at 8);

19

the court summarily denied it on April 18 (Lodged Doc. 15).

20

October 11, 2016, now represented by counsel, Petitioner filed a

21

habeas petition in the supreme court, adding more detail but

22

still basing his ineffective-assistance claim on the same

23

arguments and not raising any other claims.

24

16.)

(Pet., pt. 3 at 28.)

Petitioner constructively filed

On

(See Lodged Doc.

The state supreme court summarily denied the petition on

25
26
27
28

4

Though the petition was file-stamped on January 7,
Petitioner gave it to prison officials on January 5. (See Lodged
Doc. 18 at 7.) The mailbox rule applies to state habeas
petitions. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th
Cir. 2003).
4

1

December 14, 2016.

2
3

Petitioner’s federal Petition raises the same claim he
raised in his state petitions.

4

PETITIONER’S CLAIM

5
6

Petitioner was deprived of the effective assistance of
counsel during the plea process.

7
8

(Lodged Doc. 17.)

(Pet. at 4, 15-17.)

DISCUSSION
I.

Applicable Law

9

The Antiterrorism and Effective Death Penalty Act sets forth

10

a one-year limitation period for filing a federal habeas petition

11

and specifies that the period runs from the latest of the

12

following dates:

13

(A)

the date on which the judgment became final by the

14

conclusion of direct review or the expiration of the time

15

for seeking such review;

16

(B)

17

application created by State action in violation of the

18

Constitution or laws of the United States is removed, if

19

the applicant was prevented from filing by such State

20

action;

21

(C)

22

was initially recognized by the Supreme Court, if the

23

right has been newly recognized by the Supreme Court and

24

made retroactively applicable to cases on collateral

25

review; or

26

(D)

27

or claims presented could have been discovered through

28

the exercise of due diligence.

the date on which the impediment to filing an

the date on which the constitutional right asserted

the date on which the factual predicate of the claim

5

1
2

28 U.S.C. § 2244(d)(1).
AEDPA includes a statutory tolling provision that suspends

3

the limitation period for the time during which a properly filed

4

application for postconviction or other collateral review is

5

pending in state court.

6

F.3d 729, 734 (9th Cir. 2008).

7

it has achieved final resolution through the state’s

8

postconviction procedures.

9

(2002).

§ 2244(d)(2); see Waldrip v. Hall, 548
An application is “pending” until

Carey v. Saffold, 536 U.S. 214, 220

In California, a state habeas petition remains pending

10

between a lower court’s denial of it and the filing of a habeas

11

petition in a higher state court as long as that period is

12

“reasonable.”

13

Periods of up to 60 days are generally presumptively reasonable.

14

Cf. id. at 201 (holding unexplained six-month delay unreasonable

15

compared to “short[er] periods of time,” such as 30 to 60 days,

16

“that most States provide for filing an appeal to the state

17

supreme court” (citation and alteration omitted)).

18

limitation period is not tolled between the time a decision

19

becomes final on direct appeal and when a state collateral

20

challenge is filed because no case is “pending” during that

21

interval.

22

Likewise, the limitation period is not tolled between the time

23

the last state habeas petition is denied and a federal habeas

24

action is initiated.

25

Evans v. Chavis, 546 U.S. 189, 191-92 (2006).

Finally, the

Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. 2007).

See id.

In addition to statutory tolling, federal habeas petitions

26

are subject to equitable tolling of the one-year limitation

27

period in appropriate cases.

28

645 (2010).

Holland v. Florida, 560 U.S. 631,

Determining whether equitable tolling is warranted
6

1

is a fact-specific inquiry.

2

(9th Cir. 2001) (as amended).

3

has been pursuing his rights diligently and some extraordinary

4

circumstance stood in his way and prevented timely filing.

5

Holland, 560 U.S. at 649.

6

“reasonable diligence” is required for equitable tolling, not

7

“maximum feasible diligence.”

The petitioner must show that he

The Supreme Court has clarified that

Id. at 653 (citation omitted).

As to the second prong of the inquiry, courts have

8
9

Frye v. Hickman, 273 F.3d 1144, 1146

recognized several potentially extraordinary circumstances

10

justifying equitable tolling.

11

attorney might constitute an extraordinary circumstance.

12

Maples v. Thomas, 565 U.S. 266, 282-83 (2012).

13

lack of access to legal files may warrant equitable tolling.

14

Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009).

15

petitioner must show that the extraordinary circumstances were

16

the cause of his untimeliness.”

17

959 (9th Cir. 2010) (as amended) (citation omitted).

18

For instance, abandonment by an
See

And a complete

“The

Porter v. Ollison, 620 F.3d 952,

As to both statutory and equitable tolling, a petitioner

19

bears the burden of demonstrating that AEDPA’s limitation period

20

was sufficiently tolled.

21

(2005) (equitable tolling); Smith v. Duncan, 297 F.3d 809, 814

22

(9th Cir. 2002) (as amended) (statutory tolling), abrogation on

23

other grounds recognized by United States v. Davis, 508 F. App’x

24

606, 610 (9th Cir. 2013).

25

II.

Pace v. DiGuglielmo, 544 U.S. 408, 418

The Limitation Period

26

A.

27

Petitioner was sentenced on December 12, 2014.

28

Doc. 1.)

Date Petitioner’s Convictions Became Final
(See Lodged

Because his attempts to withdraw or appeal his plea
7

1

failed, his conviction and sentence became final 60 days later,

2

on February 10, 2015, when the time to appeal expired.

3

§ 2244(d)(1)(A) (judgment becomes final “by the conclusion of

4

direct review or the expiration of the time for seeking such

5

review”); Cal. R. Ct. 8.308(a) (notice of appeal must be filed

6

within 60 days of judgment); see also Gonzalez v. Thaler, 565

7

U.S. 134, 137 (2012) (“[F]or a state prisoner who does not seek

8

review in a State’s highest court, the judgment becomes ‘final’

9

on the date that the time for seeking such review expires.”);

10

Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006) (noting

11

that petitioner pleaded no contest, “did not appeal[, and]

12

therefore, his conviction became final . . . 60 days after the

13

judgment of conviction”).5

14

See

The one-year limitation period therefore began to run on

15

February 11, 2015.

See Patterson v. Stewart, 251 F.3d 1243,

16

1245-46 (9th Cir. 2001) (holding that limitation period begins to

17
18
19
20
21
22
23
24
25
26
27
28

5

Respondent contends that Petitioner’s conviction became
final on January 7, 2015, when the superior court denied his
motion for a certificate of probable cause. (Mot. Dismiss at 3.)
In support, she cites Covarrubias v. Grounds, No. CV 12-2562-CAS
(SH), 2012 WL 6811790, at *3 (C.D. Cal. Oct. 31, 2012), accepted
by 2013 WL 100158 (C.D. Cal. Jan. 3, 2013), and Goodo v.
Ambroselli, No. CV 12-0314-MLG, 2012 WL 1377049, at *1 (C.D. Cal.
Apr. 17, 2012). The facts of Goodo are distinguishable, however.
There, the petitioner’s request for a certificate of probable
cause was not denied until after the 60-day period had expired,
and the court used that later date when calculating when his
conviction became final. See 2012 WL 1377049, at *1.
Covarrubias relied on Goodo to hold that the petitioner’s
conviction became final when the certificate of probable cause
was denied, before the 60-day period had expired, see 2012 WL
6811790, at *3, but this Court assumes that a petitioner is
entitled to at least the 60-day period.
8

1

run on day following triggering event).6

2

some kind, Petitioner had until February 10, 2016, to file his

3

federal petition.

4

on January 25, 2017, it was ostensibly more than 11 months late.

5

B.

6
7

Thus, absent tolling of

Because the Petition was constructively filed

Statutory Tolling
1.

State habeas petitions

Petitioner’s first state habeas petition was pending in the

8

superior court from January 5 (Lodged Doc. 11) to February 18,

9

2016 (Pet., pt. 3 at 28), and his second was pending in the state

10

court of appeal from April 5 (Lodged Doc. 14) to April 18, 2016

11

(Lodged Doc. 15).

12

for the time those state habeas petitions were pending, 59 days,

13

and “gap tolling” for the 46 days between the denial of the first

14

petition and the filing of the second, for a total of 105 days.

15

See Evans, 546 U.S. at 191-92; see also Patterson, 251 F.3d at

16

1247 (limitation period resumes running day after state court

17

denies habeas petition).

18

the AEDPA deadline was extended to May 25, 2016.

Petitioner is entitled to statutory tolling

Accounting for those days of tolling,

19

Petitioner is not entitled to gap tolling for the time

20

between the denial of his second state habeas petition, on April

21

18, 2016 (Lodged Doc. 15), and his filing of a third petition, on

22

October 11, 2016, in the state supreme court (Lodged Doc. 16).

23

First, the delay was substantial.

24

exceeds the 30 to 60 days the U.S. Supreme Court has identified

25

as “reasonable” for gap tolling.

That 175-day period greatly

See Evans, 546 U.S. at 201

26
27
28

6

Petitioner does not contend that he is entitled to a later
trigger date under § 2244(d)(1)(B), (C), or (D), and the record
discloses no basis for applying any of those provisions.
9

1

(refusing to toll unexplained six-month gap); see also Velasquez

2

v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011) (91- and 81-day

3

unexplained gaps unreasonable); Chaffer v. Prosper, 592 F.3d

4

1046, 1048 (9th Cir. 2010) (per curiam) (115- and 101-day

5

unexplained gaps unreasonable).

6

Petitioner offers for the delay are inadequate.

7

extensive efforts to obtain representation and multiple delays in

8

withdrawing funds from his prison trust account to pay retained

9

counsel.

(See Opp’n at 6-7.)

Second, the justifications
He describes

There is no right to counsel,

10

however, when filing a habeas petition in a noncapital case.

11

Byrnes v. Kramer, 435 F. App’x 621, 622 (9th Cir. 2011) (citing

12

Miranda v. Castro, 292 F.3d 1063, 1067-68 (9th Cir. 2002)).

13

Thus, delay stemming from his attempts to retain counsel for

14

postconviction proceedings does not justify his late filing in

15

the state supreme court.

16

inability to access typewriter inadequate justification for

17

statutory gap tolling), with Lima v. Kramer, 327 F. App’x 716,

18

718 (9th Cir. 2009) (three and a half months of gap delay

19

justified by lack of access to legal files while in

20

administrative segregation), and Richardson v. Cate, No. C 09-

21

02227 WHA, 2010 WL 1486476, at *2-3 (N.D. Cal. Apr. 13, 2010)

22

(135-day gap delay justified partly because petitioner became

23

suicidal and was placed in mental-health ward and administrative

24

segregation); cf. also Haskins v. Schriro, No. CV 05-2352-PHX-MHM

25

(JM), 2009 WL 3241836, at *5 (D. Ariz. Sept. 30, 2009)

26

(attempting to retain counsel not extraordinary circumstance

27

warranting equitable tolling).

28

See

Compare id. (pro se status and

Third, Petitioner is not entitled to statutory tolling for
10

1

the time it took his counsel, once retained, to prepare his

2

supreme-court petition.

3

same single claim and arguments as and was only marginally longer

4

than his pro se petitions in the court of appeal and superior

5

court.

6

Thus, the revised petition does not justify statutory gap

7

tolling.

8

2010) (time it took to go through voluminous records from new

9

evidentiary hearing, conduct significant legal research, and

His supreme-court petition presented the

(Compare Lodged Docs. 11 and 14, with Lodged Doc. 16.)

Compare Maxwell v. Roe, 628 F.3d 486, 496-97 (9th Cir.

10

rewrite petition, resulting in 160 pages, justified tolling), and

11

Richardson, 2010 WL 1486476, at *2 (tolling justified partly

12

because petition addressed new evidence and was almost three

13

times as long as prior petition), with Velasquez, 639 F.3d at 968

14

(delay not excused when “each of [petitioner’s] habeas petitions

15

[was] nearly identical to the petition that came before it”); see

16

also Hodge v. Lewis, No. CV 11-03237 CJC (SS), 2012 WL 7187679,

17

at *7 (C.D. Cal. Dec. 20, 2012) (no gap tolling when subsequent

18

petition was “largely identical” and did not present new

19

arguments, and petitioner “did not need to conduct new and

20

extensive research or investigate additional evidence to raise

21

his . . . claim”), accepted by 2013 WL 655240 (C.D. Cal. Feb. 21,

22

2013).7

23
24
25
26
27
28

7

Because the limitation period had already expired by the
time Petitioner filed his supreme-court habeas petition, on
October 11, 2016, he is not entitled to statutory tolling for the
65 days it was pending. See Ferguson v. Palmateer, 321 F.3d 820,
823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the
reinitiation of the limitations period that has ended before the
state petition was filed.” (citing Tinker v. Moore, 255 F.3d
1331, 1333 (11th Cir. 2001))).
11

1

Finally, Petitioner complains of construction work lasting

2

from April through October 2016 that allegedly limited his access

3

to the law library.

4

Section II.C, limited law-library access, absent a showing of how

5

that allegedly inadequate access prevented timely filing, does

6

not warrant tolling.

7

(AGR), 2008 WL 5099640, at *2-3 (C.D. Cal. Dec. 2, 2008) (noting

8

that petitioner’s requests for access to law library did “not

9

establish that denial of access to the library prevented him from

(See Opp’n at 6.)

As further discussed in

See Bretado v. Woodford, No. CV 07-4612-CAS

10

filing a timely petition” (emphasis in original)).

11

has not made such a showing: he apparently retained counsel

12

during that period of alleged lack of access, and thus he

13

presumably was not actively preparing his own supreme-court

14

petition during much of that time.

15

that he retained first habeas counsel on May 26, 2016).)

16

Moreover, Petitioner does not allege (much less offer evidence)

17

that the library was actually unavailable to him during that

18

period.

19

curtailed.

20

Fuschak v. Swarthout, 588 F. App’x 556, 556-57 (9th Cir. 2014)

21

(limited access to prison law library of two hours per week did

22

not justify delay between filing of petitions).

23
24

Petitioner

(See Opp’n at 6-7 (stating

Rather, he contends simply that its hours were
That is not sufficient to justify gap tolling.

2.

See

Other collateral review

Petitioner contends in his request for leave to amend his

25

opposition that various filings he made in state court before his

26

habeas petitions entitle him to statutory tolling.

27

Req. to Amend at 1-3.)

28

(See, e.g.,

As explained below, they do not.

AEDPA’s statutory-tolling provision suspends the limitation
12

1

period for the time during which a properly filed application for

2

“other collateral review,” not just a habeas petition, is pending

3

in state court.

4

judgment or claim means a judicial reexamination of a judgment or

5

claim in a proceeding outside of the direct review process.”

6

Wall v. Kholi, 562 U.S. 545, 553 (2011).

7

application must be “properly filed,” which occurs “when its

8

delivery and acceptance are in compliance with the applicable

9

laws and rules governing filings.”

10
11

§ 2244(d)(2).

“‘[C]ollateral review’ of a

To warrant tolling, the

Artuz v. Bennett, 531 U.S. 4,

8 (2000) (emphasis omitted).
Between February 10, 2015, when his conviction became final,

12

and January 5, 2016, when he filed his first habeas petition,

13

Petitioner filed a notice of appeal (see Lodged Doc. 7 at 3-11);

14

an application for relief from default, which was construed as a

15

“petition for writ of late notice of appeal” (see Lodged Doc. 7

16

at 1-2; Lodged Doc. 8); a motion for reconsideration of his

17

application for relief from default (see Lodged Docs. 9, 10); and

18

two petitions for writs of mandate (see Lodged Doc. 13; Req. to

19

Amend at 12-14).

20

conviction became final.

21

9 at 28.)

22

because they were not properly filed,8 nor were they applications

He also filed two notices of appeal before his
(See Lodged Doc. 3 at 1-4; Lodged Doc.

None of Petitioner’s notices of appeal warrant tolling

23
24
25
26
27
28

8

Petitioner’s December 30, 2014 notice of appeal was not
properly filed because, without a certificate of probable cause,
it did not comply with Rule 8.304(b) of the California Rules of
Court and Penal Code section 1237.5. See Artuz, 531 U.S. at 8-9
(noting that noncompliance with filing requirements such as those
“conditioning the taking of an appeal on the issuance of a
‘certificate of appealability’” cause an application to not be
properly filed). Though the superior court “mistakenly accepted”
13

1

for collateral review.9

2

appeal” and motion for reconsideration do not warrant tolling

3

because they sought to “reinstate the appeal” and thus are not

4

“outside of the direct review process.”

5

553.

6

His “petition for writ of late notice of

See Wall, 562 U.S. at

Petitioner’s second petition for writ of mandate also does

7

not statutorily toll the limitation period.

Though a copy has

8

not been lodged, a handwritten notation — presumably by

9

Petitioner — beside the petition’s appellate-court docket entry

10

attached to his request to amend states that the filing “was for

11

transcripts of Dec. 2, 2014 Dept I [Judge] Stuarts 4 year offer.”

12

(Req. to Amend at 17.)

13

“an application for State post-conviction or other collateral

14

review with respect to the pertinent judgment or claim.”

15

§ 2244(d)(2); see Nelson v. Sisto, No. C-11-0313 EMC (pr), 2012

16

WL 465443, at *5-6 (N.D. Cal. Feb. 13, 2012) (holding that

17

petitioner’s writ of mandate trying to obtain files from

This request, then, was apparently not

18
19
20
21
22
23
24
25
26
27
28

this “incomplete notice of appeal” for filing (See Lodged Doc. 9
at 10), the appeal was taken from a nonappealable judgment and
its erroneous acceptance does not indicate proper filing. See
Artuz, 531 U.S. at 9 (when “an application is erroneously
accepted by the clerk of a court lacking jurisdiction . . . it
will be pending, but not properly filed” (emphasis in original)).
The notice of appeal counsel filed for Petitioner was rejected as
a duplicate, and Petitioner’s May 21, 2015 notice of appeal was
received after the expiration of the applicable 60-day period and
thus was not filed. (See Lodged Doc. 7 at 11.) Hence, none of
Petitioner’s notices of appeal were properly filed.
9

Furthermore, two of the notices of appeal were filed
before his conviction became final and thus do not warrant
tolling for that reason as well. See Torlucci v. Evans, 364 F.
App’x 338, 339 (9th Cir. 2010).
14

1

attorneys did not warrant statutory tolling (citing Wall, 562

2

U.S. at 553)); see also Ramirez, 571 F.3d at 999-1000 (no

3

statutory tolling for discovery motions because they did not

4

challenge conviction and instead sought material petitioner

5

claimed might be of help in later state proceedings).10

6

Petitioner’s first petition for writ of mandate, however,

7

seems to have sought collateral review of his plea process.

(See

8

Req. to Amend at 12-13 (letter to court seeking in part to

9

“withdraw [his] plea” based on alleged ineffective assistance of

10

counsel, among other things).)

11

called for “judicial reexamination” of his trial proceedings and

12

was “not part of the direct review process,” it likely qualifies

13

as an “application for ‘collateral review’ that triggers AEDPA’s

14

[statutory] tolling provision.”

15

§ 2244(d)(2).

16

entitled to tolling for the 41 days it was pending in the court

17

of appeal, from May 22 to July 1, 2015.

18

Because the petition apparently

Wall, 562 U.S. at 555-56; see

Therefore, the Court assumes that Petitioner is

Accounting for all applicable statutory tolling, the AEDPA

19

deadline was extended by 146 days, to July 5, 2016.

20

equitable tolling, the Petition is untimely because it was not

21

constructively filed until January 25, 2017, 204 days after the

22

limitation period had expired.

Absent

23
24
25
26
27
28

10

Even if Petitioner did raise collateral-review claims in
his second petition for writ of mandate, the 32 days of
additional tolling it would warrant him would not make his
Petition timely.
15

1

C.

Equitable Tolling

2

Petitioner argues that he is entitled to equitable tolling

3

based on his lack of legal counsel and limited law-library

4

access.

5

the Court cannot find that any extraordinary circumstances

6

prevented his timely filing.

(Opp’n at 1-7.)

Even if Petitioner acted diligently,

As to his lack of counsel, he states that he was “abandoned

7
8

by [his trial counsel] and left on his own to file his own

9

appeal.”

(Id. at 3.)

That occurred, however, before his

10

conviction became final and the limitation period began to run

11

and thus cannot support tolling.

12

App’x 338, 339 (9th Cir. 2010) (statute of limitations incapable

13

of being tolled before petitioner’s conviction was final).

14

Petitioner was notified on June 1, 2015, that an attorney had

15

been appointed to assist him with his efforts to reverse his

16

guilty plea, only to learn on July 7 that the lawyer was

17

“informed by the court that he was not to act as petitioner’s

18

attorney.”

19

over 19 attorneys and several lawyer referral services seeking

20

representation” and experienced delays in withdrawing funds to

21

pay the attorneys he ultimately retained to prepare his state

22

supreme-court habeas petition.

(Opp’n at 4.)

See Torlucci v. Evans, 364 F.

Petitioner states that he “contacted

(Id. at 5-7.)

Petitioner is entitled to equitable tolling for the 37 days

23
24

during which he believed he was represented by court-appointed

25

counsel, as he cannot have been expected to work on his own

26

petition while under the impression he had counsel to do that for

27

him.

28

Petitioner was an “external force” contributing to his

The court’s appointing and withdrawing of counsel for

16

1

untimeliness.

See Waldron-Ramsey v. Pacholke, 556 F.3d 1008,

2

1011 (9th Cir. 2009) (“[A]n external force must cause the

3

untimeliness, rather than . . . merely oversight, miscalculation

4

or negligence on [the petitioner’s] part.” (second alteration in

5

original) (citation omitted)); cf. Maples, 565 U.S. at 281-82

6

(attorney abandonment sufficient to establish extraordinary

7

circumstances beyond petitioner’s control).

8

has already granted statutory tolling from May 22, 2015, when he

9

filed his first petition for writ of mandate, to July 1, when

Because the Court

10

that petition was denied, however, equitable tolling is available

11

only for when those two periods did not overlap — from July 2 to

12

7, 2015.

13

2015 WL 7971087, at *9 n.8 (C.D. Cal. Nov. 20, 2015) (noting that

14

court cannot apply both types of tolling to same time period),

15

accepted by 2015 WL 8022548 (C.D. Cal. Dec. 4, 2015), vacated on

16

other grounds, 692 F. App’x 409 (9th Cir. 2017); Ammons v.

17

Walker, No. CV 07-08136-AHM (JC), 2011 WL 844965, at *1 (C.D.

18

Cal. Mar. 3, 2011) (refusing to “double count” requested period

19

of equitable tolling because the court afforded statutory tolling

20

for the period).

21

equitable tolling, extending the deadline for him to file a

22

federal petition to July 11, 2016.

23

See Valenzuela v. Small, No. CV 10-02428-DSF (DFM),

Petitioner is thus entitled to six days of

His general attempts to obtain counsel do not entitle him to

24

equitable tolling.

A petitioner’s pro se status or unsuccessful

25

search for counsel does not excuse the filing of an untimely

26

petition.

27

2006) (“[A] pro se petitioner’s lack of legal sophistication is

28

not, by itself, an extraordinary circumstance warranting

Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.

17

1

equitable tolling.”); see also Naff v. Kramer, No. CV 07-4417-PSG

2

(PLA), 2008 WL 821538, at *5 (C.D. Cal. Mar. 26, 2008)

3

(collecting cases).11

4

Petitioner had already filed two petitions on his own before he

5

retained counsel, and his lawyer’s petition was not much

6

different from the ones he had written.

7

not need counsel to make his claims.

8

3241836, at *5.

9

applies to almost all prisoners.

This is particularly so here, when

Clearly, Petitioner did

See Haskins, 2009 WL

Nor is lack of funds “extraordinary,” as it
See, e.g., Pozo v. Hedgpeth,

10

No. CV 10–7847–PA (AGR), 2011 WL 3420437, at *4 (C.D. Cal. Mar.

11

10, 2011) (“Petitioner’s contention that he could not afford to

12

hire a private investigator to find a witness . . . which relates

13

to his insufficiency of the evidence claim and his ineffective

14

assistance claim, does not entitle him to equitable tolling.”),

15

accepted by 2011 WL 3418241 (C.D. Cal. Aug. 1, 2011).

16

Petitioner also claims that he is entitled to equitable

17

tolling because he lacked sufficient access to the prison law

18

library.

19

January 26, 2015 and August 6, 2015 [he] was granted access to

20

[the] law library 2 times for 45 minutes each time.”

(See Opp’n at 4, 6-7.)

He alleges that “[b]etween

(Id. at

21
22
23
24
25
26
27
28

11

Furthermore, the prison’s alleged refusal to timely
release funds to him to retain counsel (see Opp’n at 6-7) does
not constitute an extraordinary circumstance entitling him to
equitable tolling. Although delays caused by the prison trust
office have been recognized as extraordinary when the funds were
“required in order to file a federal habeas petition,” see Grant
v. Swarthout, 862 F.3d 914, 917, 925-26 (9th Cir. 2017) (delay in
processing petitioner’s request for prison account certificate,
which was necessary to file federal habeas petition in forma
pauperis, entitled him to equitable tolling), here Petitioner
requested his funds to pay counsel, which was not required for
filing.
18

1

4.)12

2

remodeling work in the prison caused the law library to be

3

“closed for 1-2 weeks at a time giving Petitioner little access.”

4

(Id. at 6.)

5

typewriters,” had “outdated legal material,” was “short

6

librarians,” and was “open 1-2 days per week at most and some

7

weeks not open at all.”

8

He also claims that from April through October 2016,

He further states that the law library had “no

(Id.)

Nothing indicates that these were extraordinary

9

circumstances preventing him from submitting a timely petition.

10

See Frye, 273 F.3d at 1146 (lack of access to library materials

11

does not automatically qualify as basis for equitable tolling,

12

and court must conduct fact-specific inquiry); Chaffer, 592 F.3d

13

at 1049 (rejecting petitioner’s claim to equitable tolling based

14

on “his pro se status, a prison library that was missing a

15

handful of reporter volumes, and reliance on helpers who were

16

transferred or too busy to attend to his petitions” because

17

“these circumstances are hardly extraordinary given the

18

vicissitudes of prison life”); Byrnes, 435 F. App’x at 622

19

(holding that “an inmate has no right to use of a typewriter” and

20

inability to access one not extraordinary circumstance).

21

initial matter, and as previously discussed, Petitioner is not

22

entitled to tolling of the 2016 period during which the law

As an

23
24
25
26
27
28

12

One of the requests to use the law library that
Petitioner attached to his opposition indicates that he was given
a form to fill out and submit to gain access to the library, “but
it ha[d] not been returned” nine days later. (Opp’n at 44.)
Another document indicates that Petitioner “was ducated to the
library on March 23, 2015 and refused to attend.” (Id. at 48.)
Someone — apparently Petitioner — handwrote next to that, “called
to medical that day” (id.), but no evidence exists of that.
19

1

library allegedly had limited hours because he was represented by

2

counsel during most of that period.

3

been granted tolling for some of the challenged period in 2015.

4

As to the rest of the time in 2015, though he alleges instances

5

of limited access to the library, he does not allege complete

6

lack of access.

7

access . . . are not considered ‘extraordinary’ for purposes of

8

establishing equitable tolling.”

9

No. 15-17400, 2017 WL 3722837, at *1 (9th Cir. Aug. 29, 2017)

10
11

Similarly, he has already

“[N]ormal delays or restrictions on law library

Thao v. Ducart, __ F. App’x __,

(quoting Ramirez, 571 F.3d at 998).
Moreover, all of his “inmate requests to use law library”

12

attached to his opposition are from 2015, when he was still

13

attempting to withdraw his plea or challenge it on direct appeal.

14

(See Opp’n at 39-52.)

15

the law library other than one May 25, 2016 complaint about the

16

allegedly limited materials available (id. at 68), calling into

17

question how the law library’s curtailed availability could have

18

prevented his timely federal habeas filing.

19

415 F. App’x 821, 822 (9th Cir. 2011) (no equitable tolling based

20

on limited library access absent showing that it caused untimely

21

filing of federal petition); Brown v. McDonald, No. CIV S-10-1720

22

LKK DAD P, 2012 WL 1574799, at *6 (E.D. Cal. May 3, 2012)

23

(equitable tolling based on allegedly inadequate law library

24

unwarranted when petitioner “failed to explain how the alleged

25

[inadequacy] prevented him from filing a timely federal habeas

26

petition” and collecting cases), accepted by No. CIV S-10-1720

The record shows no 2016 requests to use

27
28
20

See Scott v. Carey,

1

LKK DAD P (E.D. Cal. July 9, 2012).13

2

Finally, even if the Court tolled the period in 2015 when he

3

complains of limited library access — omitting the times before

4

his convictions became final and for which he has already

5

received tolling — his Petition would still have been more than

6

two months late.14
Thus, Petitioner’s remaining arguments do not satisfy his

7
8

“heavy burden” for equitable tolling.

9

1048.

See Chaffer, 592 F.3d at

Accounting for all applicable equitable tolling, the AEDPA

10

deadline was extended by six days, to July 11, 2016.

11

III. Conclusion

12

For all these reasons, Petitioner has not demonstrated that

13

he is entitled to tolling of the limitation period sufficient to

14

render his January 25, 2017 Petition timely.

In fact, it was

15
16
17
18
19
20
21
22
23
24
25
26
27
28

13

Petitioner also complains that the “first time [he] had a
chance to look at his case file was on August 25, 2015.” (Opp’n
at 5.) Although a petitioner’s complete lack of access to his
legal files can support equitable tolling, see Ramirez, 571 F.3d
at 998, Petitioner did not request a copy of his case file from
his trial counsel until August 4, 2015 (Opp’n at 5, 17-18), six
months after his conviction became final. He received it on
August 21 (id. at 5, 19), only three weeks later and with nearly
a year left until his AEDPA limitation period expired. Even with
equitable tolling for that three-week period, the Petition would
still be six months late.
14

Accounting for this additional tolling, the AEDPA
deadline would be extended by 130 days, to November 18, 2016.
The Court calculated this period by subtracting the 47 days of
tolling Petitioner has already received in 2015 (representing 41
days of statutory tolling while his first writ of mandate was
pending and six days of equitable tolling when he thought he was
represented by appointed counsel) from the 177 days between
February 10, 2015, when his conviction became final, and August
6, when he claims the alleged period of lack of access to the
prison law library ended (see Opp’n at 4).
21

1

more than six months late.

2
3

ORDER
IT THEREFORE IS ORDERED that Judgment be entered granting

4

Respondent’s motion to dismiss and dismissing the Petition with

5

prejudice.15

6
7

DATED: November 15, 2017
JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
15

28

With this Order, Petitioner’s Request for Expedited
Treatment filed September 28, 2017, is moot.
22