LaTasha Diane Williams v. Dobson Davis

Filing 28

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Josephine Staton Tucker. 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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 LATASHA DIANE WILLIAMS, ) ) Petitioner, ) ) v. ) ) DOBSON-DAVIS, Warden, ) ) Respondent. ) ______________________________) NO. ED CV 12-135-JST(E) REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 16 17 18 This Report and Recommendation is submitted to the Honorable 19 Josephine Staton Tucker, United States District Judge, pursuant to 20 28 U.S.C. section 636 and General Order 05-07 of the United States 21 District Court for the Central District of California. 22 PROCEEDINGS 23 24 25 Petitioner filed a “Petition for Writ of Habeas Corpus By a 26 Person in State Custody” on January 27, 2012, bearing a signature date 27 of January 17, 2012. 28 operative pleading, on March 9, 2012 (“the Petition”). Petitioner filed a First Amended Petition, the Respondent 1 filed a Motion to Dismiss on June 22, 2012, asserting that the 2 Petition is untimely. 3 Opposition to the Motion of Petition for Writ of Habeas Corpus” on 4 August 6, 2012. Petitioner filed a “Motion to Respond 5 BACKGROUND 6 7 8 A jury found Petitioner guilty of: (1) three counts of attempted 9 voluntary manslaughter in violation of California Penal Code sections 10 192(a) and 664(a); (2) three counts of assault with a firearm within 11 the meaning of California Penal Code section 245(a)(2); and (3) three 12 counts of discharging a firearm at another person from a motor vehicle 13 in violation of California Penal Code section 12034(c) (see 14 Respondent’s Lodgment 1, p. 10; Respondent’s Lodgment 3, pp. 1-2; see 15 People v. Williams, 2006 WL 2280187, at *5 (Cal. App. Aug. 9, 2006)). 16 The jury also found true the allegations that: (1) on all counts, 17 Petitioner personally used a firearm within the meaning of California 18 Penal Code sections 12022.5(a)(1) and 12022.53(b); (2) on the 19 attempted manslaughter counts, Petitioner personally and intentionally 20 discharged a firearm within the meaning of California Penal Code 21 section 12022.53(c); (3) on two of the attempted manslaughter counts 22 and two of the assault counts, Petitioner personally inflicted great 23 bodily injury within the meaning of California Penal Code section 24 12022.7(a); and (4) on two of the discharging counts, Petitioner 25 personally and intentionally discharged a firearm causing great bodily 26 injury within the meaning of California Penal Code section 12022.53(d) 27 (see Respondent’s Lodgment 1, p. 11; see People v. Williams, 2006 WL 28 2280187, at *5). Petitioner received a sentence of 61 years and 8 2 1 months to life (see Respondent’s Lodgment 1, p. 11; Respondent’s 2 Lodgment 3, pp. 9-12; see People v. Williams, 2006 WL 2280187, at *6). 3 4 On August 9, 2006, the Court of Appeal issued an opinion striking 5 all enhancements imposed pursuant to California Penal Code sections 6 12053(b), (c) and/or (e)1 and vacating the stay on the section 7 12022.5(a)(1) enhancement on Count 9, but otherwise affirming the 8 judgment (see Respondent’s Lodgment 1; see People v. Williams, 2006 WL 9 2280187 (Cal. App. Aug. 9, 2006)). The Court of Appeal ordered the 10 Superior Court to prepare an amended and corrected abstract of 11 judgment (see Respondent’s Lodgment 1, at pp. 1, 24; see People v. 12 Williams, 2006 WL 2280187, at *1, 12). 13 Superior Court corrected Petitioner’s sentence on remand (Respondent’s 14 Lodgment 3, pp. 4-5). On August 18, 2006, the 15 16 Petitioner filed a petition for review in the California Supreme 17 Court on September 12, 2006 (Respondent’s Lodgment 2). 18 Supreme Court denied this petition on October 18, 2006, without 19 prejudice to any relief to which Petitioner might be entitled after 20 the United States Supreme Court decided the then-pending case of 21 Cunningham v. California (Respondent’s Lodgment 2).2 22 /// 23 /// The California 24 25 26 27 28 1 Although the sentencing court did not impose any subsection (e) enhancements, the original abstract of judgment erroneously reflected such enhancements. 2 On January 22, 2007, the United States Supreme Court issued its decision in Cunningham v. California, 549 U.S. 270 (2007) (“Cunningham”). 3 1 In 2007 and 2008, Petitioner sent various documents to the 2 Superior Court. 3 sentence in the Superior Court on June 28, 2007 (First Amended 4 Petition, Ground Three attachment; Respondent’s Lodgment 3, p. 4). 5 Petitioner sent the Superior Court a letter dated October 11, 2007, 6 inquiring whether the court had received the June 28, 2007 motion 7 (First Amended Petition, Ground Three attachment; Respondent’s 8 Lodgment 3, p. 4). 9 October 15, 2007 (id.). Petitioner filed a motion for modification of The Superior Court received this letter on On December 10, 2007, Petitioner sent the 10 Superior Court a letter or motion purportedly seeking relief under 11 Cunningham, which the court received on December 13, 2007 (First 12 Amended Complaint, Ground Three attachment; Respondent’s Lodgment 3, 13 p. 4). 14 Petitioner’s December 2007 letter to the “Conflict Panel & DA for 15 handling” (id.). 16 letter from Plaintiff, dated January 21, 2008, regarding Petitioner’s 17 “Cunningham motion” (Respondent’s Lodgment 3, pp. 3-4). 18 February 1, 2008, the Superior Court sent Petitioner a letter stating 19 that the judge had ordered Petitioner’s December 13, 2007 “Motion” to 20 be “forwarded to the Conflict Panel and District Attorney for 21 handling” (Respondent’s Lodgment 4). 22 Court forwarded to the Conflict Panel another letter from Petitioner, 23 dated July 22, 2008 (Respondent’s Lodgment 3, p. 3). On January 2, 2008, the Superior Court sent a copy of On February 1, 2008, the Superior Court received a On On July 30, 2008, the Superior 24 25 Almost two years later, on May 11, 2010, Petitioner filed her 26 first habeas corpus petition in the Superior Court, bearing a 27 signature date of April 29, 2010 (Respondent’s Lodgments 5, 6). 28 May 25, 2010, the Superior Court denied the petition as untimely and 4 On 1 as lacking factual support (Respondent’s Lodgment 6). 2 filed a second habeas corpus petition in the Superior Court on 3 July 29, 2010, which the court denied on August 3, 2010 as a “serial 4 petition” alleging no new facts (Respondent’s Lodgment 7).3 5 Petitioner filed a document in the Superior Court on August 30, 2010, 6 which court construed as a motion for reconsideration, denying such 7 motion on September 3, 2010 (Respondent’s Lodgment 7). 8 filed a third habeas corpus petition in the Superior Court on 9 October 5, 2010, which the court denied on October 7, 2010 as a serial Petitioner Petitioner 10 petition alleging no new facts (Respondent’s Lodgment 7). 11 filed a document in the Superior Court on December 9, 2010, which the 12 court construed as a subsequent serial petition and denied 13 (Respondent’s Lodgment 7). 14 Superior Court on February 25, 2011, which the court denied on 15 March 2, 2011 as a serial petition alleging no new facts (Respondent’s 16 Lodgment 7). 17 on March 10, 2011, which the court denied on March 15, 2011 as a 18 serial petition alleging no new facts (Respondent’s Lodgment 7). 19 Petitioner filed another habeas petition in the Superior Court on 20 April 25, 2011, which the court denied on April 26, 2011 as a serial 21 petition alleging no new facts (Respondent’s Lodgment 7). Petitioner Petitioner filed another petition in the Petitioner filed another petition in the Superior Court 22 23 In the meantime, Petitioner filed a habeas corpus petition in the 24 California Court of Appeal on March 18, 2011, which that court denied 25 summarily on May 9, 2011 (Respondent’s Lodgments 8, 10). 26 filed a second habeas corpus petition in the Court of Appeal on Petitioner 27 3 28 Respondent’s Lodgment 7 consists of several different documents. 5 1 May 18, 2011, which that court denied summarily on May 24, 2011 2 (Respondent’s Lodgment 11; see docket in In re Latasha Williams, 3 California Court of Appeal case number E053588).4 4 5 Petitioner filed a habeas corpus petition in the California 6 Supreme Court on July 14, 2011, which that court denied on 7 November 22, 2011 with a citation to In re Robbins 8 77 Cal. Rptr. 2d 153, 959 P.2d 311 (1998), signifying that the court 9 deemed the petition to be untimely (Respondent’s Lodgment 12).5 18 Cal. 4th 770, 10 PETITIONER’S CONTENTIONS 11 12 13 Petitioner contends: 14 15 Ground One 16 17 The trial court allegedly denied Petitioner the right to a fair 18 and impartial jury, assertedly by refusing to question and dismiss a 19 juror whom Petitioner allegedly knew; the prosecutor allegedly 20 committed misconduct, purportedly by begging the court to sentence 21 Petitioner to life. 22 23 24 25 4 The Court takes judicial notice of Latasha Williams, California Court of Appeal E053588). See Mir v. Little Company of Mary 649 (9th Cir. 1988) (court may take judicial records). the docket in In re case number Hosp., 844 F.2d 646, notice of court 26 5 27 28 See Walker v. Martin, 131 S. Ct. 1120, 1124 (2011); Gaston v. Palmer, 447 F.3d 1165 (9th Cir. 2006), cert. denied, 549 U.S. 1134 (2007); Bennett v. Mueller, 322 F.3d 573, 578-79 (9th Cir., cert. denied, 540 U.S. 938 (2003). 6 1 Ground Two 2 3 The court reporter allegedly gave jurors an exhibit, Exhibit No. 4 103, which the court purportedly had ruled inadmissible; the court 5 allegedly erred in denying a motion for a new trial based on the 6 jury’s asserted consideration of this exhibit. 7 8 Ground Three 9 10 Petitioner allegedly “has been diligent in seeking relief.” 11 12 Ground Four 13 14 Petitioner “was not given proper amended abstract in order to 15 properly present her case, which created an extraordinary 16 circumstance”; Petitioner allegedly never received notice of the trial 17 court’s asserted order requiring the clerk to prepare an amended 18 abstract of judgment, or of the amended abstract of judgment, until 19 May 24, 2010, when Petitioner’s mother purported obtained a “case 20 print” from the Internet. 21 22 Ground Five 23 24 The trial court allegedly refused to excuse Juror No. 9 for cause 25 after Petitioner said Petitioner knew Juror No. 9 and had personal 26 information concerning that juror; Juror No. 9 allegedly told 27 Petitioner’s counsel, purportedly within the hearing of the 28 prosecutor, that the jury had based its verdict on Exhibit 103. 7 Ground Six 1 2 3 Petitioner’s sentence assertedly was unlawful because: (1) the 4 court allegedly sentenced Petitioner on Count 9, which the court 5 assertedly had stricken; (2) the sentences on Counts 7, 8 and 9 6 allegedly were improper because Petitioner purportedly could only be 7 punished for one offense; (3) the evidence allegedly did not support 8 the finding of great bodily injury; (4) the conclusion that Petitioner 9 fired a gun supposedly was “inconclusive” because Petitioner 10 assertedly was never given a gunshot residue test; and (5) the section 11 12022.53 enhancement allegedly did not apply to Petitioner. 12 Ground Seven 13 14 15 The sentencing court allegedly violated the Eighth Amendment, 16 purportedly by sentencing Petitioner to double punishment on all 17 counts. 18 Ground Eight 19 20 21 Petitioner’s trial counsel allegedly rendered ineffective 22 assistance, assertedly by: (1) not meeting counsel’s burden of proof 23 at the preliminary hearing; (2) not exercising available peremptory 24 challenges; (3) failing to have Petitioner take a gunshot residue 25 test; and (4) failing to investigate evidence that allegedly would 26 have shown that Petitioner assertedly did not possess a gun and 27 allegedly was not the shooter. 28 /// 8 1 Ground Nine 2 3 4 The court allegedly coerced the verdict following the jury’s declaration of deadlock. 5 6 Ground Ten 7 8 9 The evidence allegedly was insufficient to support the firearm enhancements. 10 11 Ground Eleven 12 13 Police allegedly questioned Petitioner although she assertedly 14 was a juvenile who purportedly could not give consent to interrogation 15 unless an adult or guardian was present; the interrogating officers 16 allegedly would not allow Petitioner to call her parents and would not 17 allow her to leave unless she “gave them a story.” 18 19 DISCUSSION 20 21 The “Antiterrorism and Effective Death Penalty Act of 1996" 22 (“AEDPA”), signed into law April 24, 1996, amended 28 U.S.C. section 23 2244 to provide a one-year statute of limitations governing habeas 24 petitions filed by state prisoners: 25 26 (d)(1) A 1-year period of limitation shall apply to an 27 application for a writ of habeas corpus by a person in 28 custody pursuant to the judgment of a State court. 9 The 1 limitation period shall run from the latest of – 2 3 (A) the date on which the judgment became final by the 4 conclusion of direct review or the expiration of the time 5 for seeking such review; 6 7 (B) the date on which the impediment to filing an 8 application created by State action in violation of the 9 Constitution or laws of the United States is removed, if the 10 applicant was prevented from filing by such State action; 11 12 (C) the date on which the constitutional right asserted was 13 initially recognized by the Supreme Court, if the right has 14 been newly recognized by the Supreme Court and made 15 retroactively applicable to cases on collateral review; or 16 17 (D) the date on which the factual predicate of the claim or 18 claims presented could have been discovered through the 19 exercise of due diligence. 20 21 (2) The time during which a properly filed application for 22 State post-conviction or other collateral review with 23 respect to the pertinent judgment or claim is pending shall 24 not be counted toward any period of limitation under this 25 subsection. 26 27 28 “AEDPA’s one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis.” 10 1 Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012). 2 3 Petitioner’s conviction became final on January 16, 2007, upon 4 the expiration of 90 days from the California Supreme Court’s denial 5 of Petitioner’s petition for review. 6 S. Ct. 681, 686 (2009) (“direct review cannot conclude for purposes of 7 § 2244(d)(1)(A) until the availability of direct appeal to the state 8 courts, [citation], and to this Court, [citation] has been 9 exhausted”); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (period See Jimenez v. Quarterman, 129 10 of “direct review” after which state conviction becomes final for 11 purposes of section 2244(d)(1) includes the 90-day period for filing a 12 petition for certiorari in the United States Supreme Court). 13 Therefore, the statute of limitations commenced running on January 17, 14 2007, unless subsections B, C, or D of 28 U.S.C. section 2244(d)(1) 15 furnish a later accrual date than January 16, 2007. 16 Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978 17 (2001); see also Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) 18 (AEDPA statute of limitations is not tolled between the conviction’s 19 finality and the filing of the first state collateral challenge). See Patterson v. 20 21 Subsection B of section 2244(d)(1) is inapplicable. Petitioner 22 does not allege, and the record does not show, that any illegal 23 conduct by the state or those acting for the state “made it impossible 24 for [her] to file a timely § 2254 petition in federal court.” 25 Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009). See 26 27 28 Subsection C of section 2244(d)(1) is also inapplicable. Petitioner does not assert any claim based on a constitutional right 11 1 “newly recognized by the Supreme Court and made retroactively 2 applicable to cases on collateral review.” 3 545 U.S. 353, 360 (2005) (construing identical language in section 4 2255 as expressing “clear” congressional intent that delayed accrual 5 inapplicable unless the United States Supreme Court itself has made 6 the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) 7 (for purposes of second or successive motions under 28 U.S.C. section 8 2255, a new rule is made retroactive to cases on collateral review 9 only if the Supreme Court itself holds the new rule to be See Dodd v. United States, 10 retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), 11 cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity 12 principles of Teague v. Lane, 489 U.S. 288 (1989), to analysis of 13 delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)).6 14 15 Section 2244(d)(1)(D) does not furnish an accrual date later than 16 January 16, 2007 for Petitioner’s claims. 17 2244(d)(1)(D), “[t]ime begins when the prisoner knows (or through 18 diligence could discover) the important facts, not when the prisoner 19 recognizes their legal significance.” 20 1154 n.3 (9th Cir. 2001) (citation and internal quotations omitted). 21 “Due diligence does not require ‘the maximum feasible diligence,’ but 22 it does require reasonable diligence in the circumstances.” Under section Hasan v. Galaza, 254 F.3d 1150, Ford v. 23 24 25 26 27 28 6 In reference to Ground Eleven, Petitioner invokes United States Supreme Court’s decision in J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011) (“J.D.B.”). The Supreme Court has not made the rule of J.D.B. retroactive to cases on collateral review. Thus, the rule of J.D.B. can neither delay accrual of the statute of limitations nor support the merits of Ground Eleven. See, e.g., Gray v. Dormire, 2011 WL 6115812, at *1 (E.D. Mo. Dec. 8, 2011). 12 1 Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (quoting Schlueter v. 2 Varner, 384 F.3d 69, 74 (3d Cir. 2004), cert. denied, 544 U.S. 1037 3 (2005)). 4 have been known by the date the appellate process ended.” 5 (citations and internal quotations omitted). 6 clock starts ticking when a person knows or through diligence could 7 discover the vital facts, regardless of when their legal significance 8 is actually discovered.” 9 2244(d)(1)(D)’s due diligence requirement is an objective standard, a Section 2244(d)(1)(D) applies “only if vital facts could not Id. at 1235 “The ‘due diligence’ Id. (citations omitted). “Although section 10 court also considers the petitioner’s particular circumstances.” 11 (citations omitted). Id. 12 13 Petitioner plainly knew or should have known, by January 16, 14 2007, the “vital facts” which form the bases for the claims raised in 15 Grounds One, Two, Five, Six, Seven, Eight, Nine, Ten and Eleven. 16 claim raised in Ground Three is not a claim for federal habeas relief, 17 but rather appears to be an argument for statutory or equitable 18 tolling of the habeas statute of limitations. The 19 20 It is unclear whether the claim raised in Ground Four is simply 21 an argument for equitable tolling based on alleged “extraordinary 22 circumstances” or a claim for federal habeas relief. 23 that Ground Four asserts a claim for federal habeas relief based on 24 Petitioner’s allegedly delayed knowledge of an amended abstract of 25 judgment, Petitioner knew or should have known at least by January 16, 26 2007, in the exercise of due diligence, that the trial court had 27 issued an amended abstract of judgment. 28 opinion, issued on August 9, 2006, the Court of Appeal directed the 13 To the extent In the Court of Appeal’s 1 trial court to prepare an amended and corrected abstract of judgment 2 (see Respondent’s Lodgment 1, pp. 1, 24; People v. Williams, 2010 WL 3 2280187, at *1, 12). 4 August 18, 2006, the Superior Court resentenced Petitioner on remand 5 and directed the court clerk to prepare an amended abstract of 6 judgment (Respondent’s Lodgment 3, pp. 4-5). 7 apparently did not inquire concerning any such amended abstract of 8 judgment until well over three years later, when Petitioner’s mother 9 allegedly obtained a “case print” over the Internet on May 25, 2010. 10 Even if Petitioner did not have access to the Internet in prison, she 11 has failed to prove she could not have asked someone, such as her 12 mother, to attempt to obtain the amended abstract of judgment much 13 earlier. 14 Ground Four.7 The Superior Court’s docket shows that, on Yet, Petitioner In sum, Petitioner is not entitled to delayed accrual on 15 16 As previously indicated, time begins under section 2244(d)(1)(D) 17 “when the prisoner knows (or through diligence could discover) the 18 important facts. . . .” 19 running of the statute of limitations does not await the issuance of 20 judicial decisions that might help would-be petitioners recognize the Hasan v. Galaza, 254 F.3d at 1154 n.3. 21 22 23 24 25 26 27 28 7 Even assuming arguendo that Petitioner could not have known, by January 16, 2007, that the Superior Court had issued an amended abstract of judgment, the Superior Court’s docket shows that, on May 19, 2008, the Superior Court sent a “case print” to Petitioner (Respondent’s Lodgment 3, p. 3). That case print would have included the Superior Court’s August 18, 2006 order directing the clerk to prepare an amended abstract of judgment. Thus, Petitioner knew or should have known, within a few days after May 19, 2008, that the Superior Court had issued an amended abstract of judgment. Even assuming arguendo that Ground Four accrued at the end of May 2008, for the reasons discussed below, this claim is still untimely. 14 The 1 legal significance of particular predicate facts. 2 of Corrections, 2010 WL 1444479, at *3 (C.D. Cal. March 4, 2010), 3 adopted, 2010 WL 1444475 (C.D. Cal. April 2, 2010) (Cunningham 4 decision did not provide “the factual predicate” for the petitioner’s 5 challenge to his sentence); Sharp v. Martel, 2009 WL 789645, at *3-4 6 (S.D. Cal. March 17, 2009) (same); see also Shannon v. Newland, 410 7 F.3d 1083, 1089 (9th Cir. 2005), cert. denied, 546 U.S. 1171 (2006) 8 (intervening state court decision establishing abstract proposition of 9 law arguably helpful to the petitioner does not constitute a “factual Singer v. Director 10 predicate” under section 2244(d)(1)(D)). 11 decision here applied (and it does not), accrual of the statute of 12 limitations would not date from the J.D.B. decision. Thus, even if the J.D.B. 13 14 Therefore, the statute of limitations began running on 15 January 17, 2007 and expired on January 16, 2008. 16 Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978 17 (2001). 18 January 17, 2012, four years after the expiration of the limitations 19 period.8 See Patterson v. Petitioner constructively filed the present Petition on Absent tolling, the Petition is untimely. 20 21 Section 2244(d)(2) tolls the statute of limitations during the 22 pendency of “a properly filed application for State post-conviction or 23 other collateral review.” 24 2007 and continuing to July of 2008, Petitioner submitted a series of 25 motions or letters to the Superior Court, at least some of which 26 appear to have asserted a Cunningham claim. As indicated above, commencing in June of The Superior Court did 27 8 28 The Court assumes arguendo Petitioner “filed” her first federal petition on its signature date of January 17, 2012. 15 1 not rule on any of the motions or letters, but sent at least some of 2 them to the Conflict Panel and District Attorney. 3 motions or letters appear to have been a “properly filed” “application 4 for State post-conviction or other collateral review.” 5 Bennett, 531 U.S. 4, 8 (2000) (an application is “properly filed” 6 within the meaning of section 2244(d)(2) when “it is delivered to, and 7 accepted by, the appropriate court officer for placement in the 8 official record” in accordance with “the applicable laws and rules 9 governing filings.”); Zepeda v. Walker, 581 F.3d 1013, 1016-19 (9th None of these See Artuz v. 10 Cir. 2009) (petition stamped “received” by court clerk, but which was 11 not filed in the court records due to lack of verification, was not 12 “properly filed” under section 2244(d)(2)). 13 14 Moreover, even assuming arguendo that Petitioner is entitled to 15 statutory tolling during the period from January 28, 2007 (when 16 Petitioner submitted her first “motion”) through July 30, 2008 (when 17 the Superior Court forwarded Petitioner’s last letter to the Conflict 18 Panel and District Attorney), any such tolling ended no later than 19 July 30, 2008. 20 one year of that date. Petitioner did not file the present Petition within 21 22 Petitioner is not entitled to statutory tolling between July 30, 23 2008 and the May 11, 2010 filing of Petitioner’s first habeas corpus 24 petition in Superior Court. 25 any “gap tolling.” 26 (2006) (finding “no authority suggesting, . . . [or] any convincing 27 reason to believe, that California would consider an unjustified or 28 unexplained 6-month filing delay ‘reasonable.’”); Gaston v. Palmer, This delay of nearly two years precludes See, e.g., Evans v. Chavis, 546 U.S. 189, 201 16 1 447 F.3d 1165, 1167 (9th Cir. 2006), cert. denied, 549 U.S. 1134 2 (2007) (California petitioner not entitled to gap tolling for 3 unexplained delays of 10, 15, and 18 months). 4 Petitioner’s first habeas corpus petition, which the Superior Court 5 denied as untimely, could not support statutory tolling. 6 DiGuglielmo, 544 U.S. 408, 413 (2005) (where the state court rules a 7 petition untimely, that is the “end of the matter” - the petition was 8 not “properly filed” and tolling is unavailable). In any event, See Pace v. 9 10 Petitioner filed subsequent habeas corpus petitions in state 11 court in 2010 and 2011. 12 after the statute of limitations expired, did not revive the statute 13 or otherwise justify statutory tolling. 14 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) 15 (“section 2244(d) does not permit the reinitiation of the limitations 16 period that has ended before the state petition was filed”); Jiminez 17 v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 18 (2003) (filing of state habeas petition “well after the AEDPA statute 19 of limitations ended” does not affect the limitations bar); Webster v. 20 Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 21 (2000) (“[a] state-court petition . . . that is filed following the 22 expiration of the limitations period cannot toll that period because 23 there is no period remaining to be tolled”); see also Nino v. Galaza, 24 183 F.3d at 1006 (statute of limitations is not tolled between 25 conviction’s finality and the filing of the first state collateral 26 challenge). 27 also cannot support statutory tolling for the additional reason that 28 the Supreme Court denied the petition as untimely. These petitions, all of which were filed long See Ferguson v. Palmateer, The 2011 petition filed with the California Supreme Court 17 See Allen v. 1 Siebert, 552 U.S. 3, 7 (2007) (citations and quotations omitted); 2 Carey v. Saffold, 536 U.S. 214, 226 (2002); Lakey v. Hickman, 633 F.3d 3 782, 785-86 at *4 (9th Cir.), cert. denied, 131 S. Ct. 3039 (2011); 4 White v. Martel, 601 F.3d 882, 883 (9th Cir.), cert. denied, 131 S. 5 Ct. 332 (2010). 6 7 AEDPA’s statute of limitations is subject to equitable tolling 8 “in appropriate cases.” 9 (2010) (citations omitted). Holland v. Florida, 130 S. Ct. 2549, 2560 “[A] ‘petitioner’ is entitled to 10 ‘equitable tolling’ only if he shows ‘(1) that he has been pursuing 11 his claims diligently, and (2) that some extraordinary circumstance 12 stood in his way’ and prevented timely filing.” 13 Pace v. DiGuglielmo, 544 U.S. at 418); see also Lawrence v. Florida, 14 549 U.S. 327, 336 (2007). 15 equitable tolling “is very high, lest the exceptions swallow the 16 rule.” 17 cert. denied, 130 S. Ct. 244 (2009) (citations and internal quotations 18 omitted). 19 Zepeda v. Walker, 581 F.3d at 1019. 20 alleged “extraordinary circumstances” were the “cause of [the] 21 untimeliness.” 22 cert. denied, 549 U.S. 1317 (2007) (brackets in original; quoting 23 Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)). 24 show that an “external force” caused the untimeliness, rather than 25 “oversight, miscalculation or negligence.” 26 Pacholke, 556 F.3d at 1011 (citation and internal quotations omitted). 27 /// 28 /// Id. at 2562 (quoting The threshold necessary to trigger Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), Petitioner bears the burden to show equitable tolling. See Petitioner must show that the Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006), 18 Petitioner must Waldron-Ramsey v. 1 Petitioner contends that she has been “diligent” in pursuing her 2 claims, asserting that she did not know about the amended abstract of 3 judgment until her mother obtained a case print in May of 2010 (First 4 Amended Petition, Ground Three and Ground Four attachments). 5 discussed above, however, Petitioner has failed to show diligence in 6 regard to the amended abstract of judgment. 7 2009 WL 2525133, at *6 (C.D. Cal. Aug. 10, 2009) (delay in obtaining 8 copy of abstract of judgment did not warrant equitable tolling where 9 plaintiff failed to establish diligence). As See Tolliver v. McDonald, Furthermore, Petitioner has 10 not shown how the alleged absence of an amended abstract of judgment 11 was “the cause of [her] untimeliness.” 12 at 969; see also Wise v. Dexter, 2010 WL 5347557, at *7 (C.D. Cal. 13 Oct. 12, 2010), adopted, 2010 WL 5350357 (C.D. Cal. Dec. 21, 2010) 14 (alleged failure contemporaneously to receive transcripts and amended 15 abstract of judgment did not proximately cause failure to pursue 16 habeas claim in federal court in a timely fashion). See Roy v. Lampert, 465 F.3d 17 18 Petitioner references letters she or her mother wrote to Senator 19 Boxer, members of the California legislature, the ACLU, the Governor’s 20 office, the San Bernardino County Grand Jury and others. 21 fruitless and largely misdirected correspondence does not establish 22 Petitioner’s diligence or entitle Petitioner to equitable tolling. 23 See, e.g., Martin v. Franklin, 2009 WL 5067514, at *4 (N.D. Okla. 24 Dec. 16, 2009) (“letter-writing and telephone campaign” by 25 petitioner’s mother did not establish diligence for purposes of 26 equitable tolling); Morse v. Quarterman, 2009 WL 585895, at *4 (N.D. 27 Tex. March 6, 2009) (“a letter-writing campaign, no matter how 28 aggressive, will not ordinarily support an argument for equitable 19 This 1 tolling”). 2 3 Petitioner makes vague and conclusory references to lockdowns and 4 restrictions on law library access. 5 demonstrate that any alleged lockdowns or restrictions on law library 6 access prevented the filing of a timely federal petition. 7 v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (ordinary prison 8 limitations on library access due to confinement in administrative 9 segregation insufficient to justify equitable tolling); Roy v. Petitioner has failed to See Ramirez 10 Lampert, 465 F.3d at 969 (to warrant equitable tolling, petitioner 11 must show that alleged “extraordinary circumstances” were the “cause 12 of the untimeliness”); Taylor v. Yates, 2007 WL 1125696, *2 (E.D. Cal. 13 Apr. 16, 2007) (“petitioner has not made any attempt to link lockdowns 14 and limited law library hours to his inability timely to file his 15 petition”); Rodriguez v. Evans, 2007 WL 951820, *6 (N.D. Cal. Mar. 28, 16 2007) (“even during lockdown, prisoners are not prohibited from 17 working on legal matters or from keeping any legal materials in their 18 cells. 19 lockdown or other situation curtails inmate movement for more than ten 20 days”); Corrigan v. Barbery, 371 F. Supp. 2d 325, 330 (W.D.N.Y. 2005) 21 (lockdowns do not by themselves qualify as extraordinary circumstances 22 warranting equitable tolling). Emergency library services are provided via paging if a 23 24 Petitioner alleges confusion regarding the status of the 25 enhancement on Count 9. 26 irrelevant to most of Petitioner’s claims. 27 claim targeting Count 9, Petitioner long knew the vital facts that 28 would be the basis for any such sentencing claim (through attendance Any alleged confusion is completely 20 Even as to any sentencing 1 at the original sentencing hearing and knowledge of the Court of 2 Appeal’s opinion modifying sentence). 3 4 Petitioner alleges she was denied copies of police reports and 5 transcripts of the sentencing. 6 documents did not prevent timely filing of any of Petitioner’s federal 7 claims. 8 does not convey a right to an extended delay while a habeas petitioner 9 gathers every possible scrap of evidence that might support his Again, the alleged lack of these Cf. Jurado v. Burt, 337 F.3d 638, 644 (6th Cir. 2003) (“AEDPA 10 claim”); Wise v. Dexter, 2010 WL 5347557, at *5, 7 (C.D. Cal. Oct. 12, 11 2010), adopted, 2010 WL 5350357 (C.D. Cal. Dec. 21, 2010) (lack of 12 sentencing transcripts neither delays accrual of claim nor justifies 13 equitable tolling). 14 15 Petitioner alleges that her attorney was disbarred and so could 16 not help her. 17 of legal sophistication are not extraordinary circumstances warranting 18 equitable tolling. 19 Cir. 2006); Oetting v. Henry, 2005 WL 1555941, at *____ (E.D. Cal. 20 June 24, 2005), adopted, 2005 WL 2000977 (E.D. Cal. Aug. 18, 2005); 21 see also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (there 22 exists no constitutional right to counsel in collateral review 23 proceedings). Petitioner’s alleged lack of legal assistance and lack See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th 24 25 Petitioner complains that the Superior Court eventually told her 26 to stop filing documents with that court. 27 directive did not prevent Petitioner from filing whatever she wished 28 to file in the California appellate courts or in this federal court. 21 Even if improper, this 1 Petitioner also appears to complain that the Superior Court 2 delayed providing records to counsel for Respondent during the present 3 federal litigation. 4 Petitioner’s failure timely to institute this litigation. Any such delay obviously had nothing to do with 5 RECOMMENDATION 6 7 8 For the reasons discussed above,9 IT IS RECOMMENDED that the 9 Court issue an order: (1) accepting and adopting this Report and 10 Recommendation; and (2) denying and dismissing the Petition with 11 prejudice. 12 13 14 DATED: August 22, 2012. 15 16 17 18 _____________/S/___________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 9 27 28 The Court has considered and rejected all arguments Petitioner has made in attempted avoidance of the bar of limitations. The Court has discussed Petitioner’s principal arguments herein. 22 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. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Within twenty (20) days of the filing of this Report

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