Vasilis Fotiou Sakellaridis v. Warden

Filing 9

ORDER DISMISSING HABEAS PETITION AS TIME-BARRED by Judge Otis D Wright, II, re Petition for Writ of Habeas Corpus (2254) 1 : (See document for details.) Court finds the F AP is time-barred. Further, by way of the OSC, the Court finds Petitioner has received notice and an adequate opportunity to show cause why the F AP should not be dismissed as time-barred. ACCORDINGLY, IT IS HEREBY ORDERED THAT the reference to the magistrate judge is vacated and the F AP is dismissed with prejudice. The clerk is directed to enter judgment dismissing this action with prejudice and notifying Petitioner of said judgment. Any and all pending motions are terminated. (rla)

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1 2 FILED - SOUTHERN DIVISION CLERK, U.S. DISTRICT COURT 3 4 , JUN 22 2012 5 CENTRAL DISTRICT OF CALIFORNIA BY DEPUTY 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 VASILIS FOTIOU SAKELLARIDIS, 13 14 15 16 Petitioner, Case No. EDCV 12-00464 ODW (AN) ORDER DISMISSING HABEAS PETITION AS TIME-BARRED v. WARDEN, Corcoran State Prison, Respondent. 17 18 Before the Court is a first amended petition for writ of habeas corpus ("FAP") 19 brought by Vasilis F otiou Sakellaridis ("Petitioner"), a state prisoner proceeding pro 20 se. For the reasons discussed below, the FAP is dismissed with prejudice because the 21 Court finds it is time-barred. 22 I. BACKGROUND 23 The pending FAP raises three claims directed at Petitioner's July 19, 2005 24 conviction in the California Superior Court for San Bernardino County (case no. 25 FSB038966) of first degree residential robbery with a firearm enhancement, for which 26 he was sentenced to 14 years in state prison. 27 Pursuant to the Court's duty to screen habeas petitions before service, the 28 Magistrate Judge found it plainly appeared from the face of the FAP and relevant state 1 court records that this action was barred by the one-year statute of limitations of the 2 Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. 3 §2244(d)( 1)(A). Accordingly, on May 16, 2012, the magistrate judge issued an Order 4 to Show Cause [7] ("OSC") notifying Petitioner the action appeared to be time-barred 5 absent some basis for tolling or an alternative start to AEDPA's one-year limitations 6 period under 28 U.S.C. § 2244(d)( 1)(B)-(D). The OSC discussed the various bases for 7 tolling and directed Petitioner to show cause why the action should not be dismissed 8 as time-barred by filing a written response no later than June 5, 2012. (OSC at 4-9.) 9 Petitioner has filed his Response to the OSC ("Response"), and the matter now stands 10 submitted. 11 12 II. DISCUSSION A. Standard of Review 13 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 14 Courts, 28 U.S.C. foll. § 2254, requires a judge to "promptly examine" a habeas 15 petition and "[i]f it plainly appears from the petition and any attached exhibits that the 16 petitioner is not entitled to relief in the district court, the judge must dismiss the 17 petition and direct the clerk to notify the petitioner." Local Rule 72-3.2 of this Court 18 also provides "[t]he Magistrate Judge promptly shall examine a petition for writ of 19 habeas corpus, and if it plainly appears from the face of the petition and any exhibits 20 annexed to it that the petitioner is not entitled to relief, the Magistrate Judge may 21 prepare a proposed order for summary dismissal and submit it and a proposed 22 judgment to the District Judge." C.D. Cal. R. 72-3.2. Further, an untimely habeas 23 petition may be dismissed sua sponte, however, the district court must give the 24 petitioner adequate notice and an opportunity to respond before doing so. Day v. 25 McDonough, 547 U.S. 198,209-10, 126 S. Ct. 1675 (2006); Herbstv. Cook, 260 F.3d 26 1039, 1043 (9th Cir. 2001 ); see also Wood v. Milyard, ---U.S.---, 132 S. Ct. 1826, ---- 27 (2012) (reaffirming Day's holding that district courts are permitted to consider, sua 28 sponte, the timeliness of a state prisoner's habeas petition, and itself holding that Page2 1 "courts of appeals, like district courts, have the authority- though not the obligation - 2 to raise a forfeited timeliness defense on their own initiative."). 3 B. Statute of Limitations 4 The F AP _is governed by the AEDPA, which establishes a one-year statute of 5 limitations for state prisoners to file a habeas petition in federal court. 28 U.S.C. § 6 2244(d)(l); see Lindh v. Murphy, 521 U.S. 320, 327-37, 117 S. Ct. 2059 (1997). In 7 most cases, the limitations period is triggered by "the date on which the judgment 8 became final by conclusion of direct review or the expiration of the time for seeking 9 such review." 28 U.S.C. § 2244(d)(1)(A). 10 The face of the FAP and relevant state court records11 establish the following 11 relevant facts. Petitioner was convicted ofthe above offense on July 19, 2005, and was 12 sentenced on March 27, 2009. On March 30, 2010, the California Court of Appeal 13 affirmed the judgment of conviction (case no. £048166). Petitioner did not file a 14 petition for review of that decision in the California Supreme Court. (Pet. at 2-3; state 15 court records.) Thus, for purposes of AEDPA's limitations period, his conviction 16 became final on May 9, 2010, the fortieth day after the California Court of Appeal 17 affirmed the judgment. See CAL. CT. R. 8.366(b )(1 ); 8.500(e)(1 ); Waldrip v. Hall, 548 18 F.3d 729,735 (9th Cir. 2008); Duncan, 297 F.3dat 812-13. 19 The statute of limitations then started to run the next day, May 10, 2010, and 20 ended a year later on May 9, 2011. 28 U.S.C. § 2244(d)(l)(A); see also Patterson v. 21 Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001) (the limitations period begins to run 22 on the day after the triggering event pursuant to Fed. R. Civ. P. 6(a)). Petitioner did 23 24 25 26 27 28 The Court takes judicial notice of Petitioner's records in the superior court, which are available on the Internet at http://www, and in the appellate courts, which are available on the Internet at ("state court records"). See Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2002) (federal habeas courts may take judicial notice of relevant state court records), overruled on other grounds as recognized in Cross v. Sisto, 676 F.3d 1172 (9th Cir. 2012). !I Page 3 1 not constructively file his original petition until March 21,2012--317 days (more 2 than ten months) after the expiration of the limitations period.1' Accordingly, absent 3 some basis for tolling or an alternative start date to the limitations period under 28 4 U.S.C. § 2244(d)(l), the pending FAP is time-barred. 5 C. Statutory Tolling 6 AEDPA includes a statutory tolling provision that suspends the limitations 7 period for the time during which a "properly-filed" application for post-conviction or 8 other collateral review is "pending" in state court. 28 U.S.C. § 2244(d)(2); Waldrip, 9 548 F.3d at 734; Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005). An 10 application is "pending" until it has achieved final resolution through the state's post- 11 conviction procedures. Carey v. Saffold, 536 U.S. 214, 220, 122 S. Ct. 2134 (2002). 12 The limitations period is not tolled between the time a final decision is issued on direct 13 state appeal and the time a state collateral challenge is filed because there is no case 14 "pending" during that interval. Thorson v. Palmer, 479 F.3d 643,646 (9th Cir. 2007); 15 Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). On collateral review, however, 16 "intervals between a lower court decision and a filing of a new petition in a higher 17 court," when reasonable, fall "within the scope ofthe statutory word 'pending"' thus 18 tolling the limitations period. Saffold, 536 U.S. at 221, 223; Evans v. Chavis, 546 U.S. 19 189, 192, 126 S. Ct. 846 (2006). 20 Further, to qualify for statutory tolling during the time the petitioner is pursuing 21 collateral review in the state courts, his first state habeas petition must be 22 constructively filed before, not after, the expiration of AEDPA's one-year limitations 23 24 25 26 27 28 Pursuant to the "mailbox rule," a prose prisoner's federal habeas petition is deemed to be filed on the date the prisoner delivers the petition to prison authorities for mailing to the clerk. Houston v. Lack, 487 U.S. 266, 270-71, 108 S. Ct. 2379 (1988); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); see also Habeas Rule 3(d). For purposes of the timeliness analysis, and absent any evidence to the contrary, the Court finds Petitioner constructively filed the original petition by delivering it to the prison mail system on March 21, 2012, the date reflected on his proof of service. 1' Page4 1 period. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) 2 does not permit the reinitiation of the limitations period that has ended before the state 3 petition was filed"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Webster v. 4 Moore, 199 F .3d 1256, 1259 (11th Cir. 2000) ("A state-court petition [] that is filed 5 following the expiration ofthe limitations period cannot toll that period because there 6 is no period remaining to be tolled"). 7 The face of the FAP and relevant state court records establish Petitioner filed 8 four state habeas petitions, including two in the superior court, one in the California 9 Court of Appeal, and one in the California Supreme Court. For the reasons discussed 10 below, none of those petitions qualify for statutory tolling. 11 Petitioner's superior court records establish that his first state habeas petition 12 (case no. WHCSS900058) was filed before he was sentenced by the trial court, on 13 February 18, 2009, and was denied on February 27, 2009. Since that petition was 14 denied more than a year before the limitations period started to run on May 10, 2010, 15 it was never pending during the relevant period and could not toll the statute. See 16 Tillema v. Long, 253 F.3d 494, 498 (9th Cir. 2001) (state collateral review motion 17 filed before the AEDPA limitations period commenced qualified for tolling only 18 because it was still pending after the limitations period began), abrogated on other 19 grounds as recognized in Ford v. Pliler, 590 F.3d 782, 789 n.3 (9th Cir. 2009). 20 Petitioner's second state habeas petition, filed on May 17, 2011, was also filed 21 in the superior court. (FAP at 3-4; state court records.) That petition does not quaiify 22 for statutory tolling for two reasons. First, it cannot be included in Petitioner's first 23 round of collateral review that was triggered by his first state habeas petition. As 24 stated above, a California petitioner's state "collateral review is considered to be 25 pending during the interim between a writ being denied at one court level and a new 26 petition being filed at the next higher court level ... ."Porter v. Ollison, 620 F.3d 27 952, 958 (9th Cir. 201 0). However, "each time a petitioner files a new habeas petition 28 at the same or a lower level, ... the subsequent petition has no effect on the already Page 5 1 pending application, but triggers an entirely separate round of review." Delhomme v. 2 Ramirez, 340 F.3d 817, 820 (9th Cir. 2003) (emphasis added), abrogated on other 3 grounds as recognized in Waldrip, 548 F.3d at 733. Second, that petition was also 4 ineligible to trigger a new, separate round of review because it was successive. See 5 Porter, 620 F.3d at 958 ("For tolling to be applied based on a second round, the 6 petition cannot be untimely or an improper successive petition."). More specifically, 7 the superior court assigned the second petition the same case number as the first 8 petition, placed it on the same docket, and labeled it as a "Subsequent Petition For 9 Writ of Habeas Corpus." The superior court also denied that petition the day after it 10 was filed on the basis that it was a "serial petition alledging [sic] no new facts .... " 11 (FAP, Ex. H; state court records.) As a result, the Court finds that petition was an 12 improper successive petition, and therefore merely overlapped Petitioner's sole round 13 of state habeas review and did not trigger a new one. See Porter, 620 F.3d at 958. 14 In his Response, Petitioner takes issue with the superior court's ruling that his 15 second state habeas petition was successive. Specifically, he argues that he raised two 16 additional issues in that petition, which were not raised in the first one. (Resp. at 4-5.) 17 However, Petitioner's argument focuses too heavily on the court's statement that the 18 petition alleged "no new facts" instead of the court's ultimate ruling and the law 19 governing successive habeas petitions in California. His second petition challenged 20 the same conviction, the same set of facts surrounding that conviction, and was filed 21 well over two years after the first petition. As a result, it was in vioiation of 22 California's rule against untimely, successive petitions. See generally In re Clark, 5 23 Cal. 4th 750, 21 Cal. Rptr. 2d 509 ( 1993 ). More important, though, even ifPetitioner' s 24 second habeas petition had triggered a separate round of review, he would still be 25 untimely. Assuming without finding that petition was constructively filed on April30, 26 27 28 Page 6 1 20ll,'J.' and further assuming without finding that his round of state collateral review 2 also included his last two state habeas petitions (court of appeal case no. E054148 and 3 California Supreme Court case no. S 197245), he would be entitled to 298 days of 4 statutory tolling, from April 30, 2011, until February 22, 2012, the date the California 5 Supreme Court denied his last state habeas petition. See CAL. CT. R. 8.532(b)(2)(C); 6 Corjasso v. Ayers, 278 F.3d 874, 880 n.l (9th Cir. 2002) (orders of the California 7 Supreme Court denying habeas petitions are final upon filing). Given 298 days, the 8 expiration of the limitations period would have been extended from May 9, 2011, to 9 March 2, 2012. As stated above, however, the original petition initiating this action 10 was constructively filed on March 21, 2012. Thus, while the Court rejects Petitioner's 11 statutory tolling argument and finds his second state habeas petition did not trigger a 12 separate round of review, the Court also finds that, even if it had, the result would be 13 the same. 14 Since Petitioner's second state habeas petition merely overlapped his round of 15 state collateral review, Petitioner is also not entitled to interval tolling. Specifically, 16 the interval between his original state habeas petition in the superior court and his 17 petition in the court of appeal was unreasonable. As stated above, intervals between 18 a lower court decision and the filing of a new petition in a higher court toll the 19 limitations period, but only where reasonable. Saffold, 536 U.S. at 221, 223; Evans, 20 21 22 23 24 25 26 27 28 Although Petitioner correctly concedes that his second state habeas petition was filed after the limitations period expired (Resp. at 5), the mailbox rule also applies to prose state habeas petitions. Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003 ). The Court, pursuant to its authority to take judicial notice of state court records, has obtained a copy ofthat petition and finds Petitioner dated it and the accompanying proof of service on April 30, 2011. However, this is not a reliable indicator of the constructive filing date because, in the Court's experience, it is not unusual for prisoners to sign and date their petitions well before they actually deliver them to the prison mail system for filing. Accordingly, the Court merely uses the April 30, 2011 date to illustrate that Petitioner would still have been untimely even assuming the earliest possible constructive filing date. 'J.I Page? 1 546 U.S. at 192. However, here, the interval between the superior court's February27, 2 2009 decision and the filing of Petitioner's habeas petition in the court of appeal on 3 August 1, 2011 spanned 885 days (approximately 2V2 years). That interval was 4 "substantially longer than the '30 to 60 days' that 'most States' allow for filing 5 petitions, and [Petitioner has] offered no justification for the delay[] as required under 6 California law." Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 201 0) (holding that 7 intervals of 115 and 101 days were unreasonable and did not qualify for statutory 8 tolling) (citations omitted); see also Banjo v. Ayers, 614 F.3d 964,970 (9th Cir. 2010) 9 (holding that a 146-day interval was unreasonable). As a result, Petitioner is not 10 entitled to interval tolling between the denial of his first state habeas petition in the 11 superior court and the filing of his habeas petition in the court of appeal. 12 Moreover, without interval tolling, Petitioner is not entitled to any statutory 13 tolling for the pendency of his last two state habeas petitions in the state court of 14 appeal and California Supreme Court. (FAP at 4-5, Ex. G; state court records.) As 15 discussed above, the first of those petitions was not filed in the court of appeal until 16 August 1, 2011, nearly three months after the limitations period expired on May 9, 17 2011. Thus, neither of those petitions qualifies for statutory tolling. Ferguson, 321 18 F.3d at 823. 19 Finally, in his Response, Petitioner also points to a motion he made in the 20 superior court for DNA testing, which it appears was filed on February 1, 20 11, and 21 denied on February 7, 2011, as well as a subsequent petition for writ of mandate he 22 filed in the court of appeal challenging the superior court's ruling, which was denied 23 on March 25, 2011. (FAP, Exs. E, F, M, N.) He claims he should be entitled to 24 statutory tolling for the pendency of those pleadings. (Resp. at 5-6.) However, while 25 Petitioner presumably sought DNA testing so he could then challenge his underlying 26 conviction, his attempts to secure a DNA test were not themselves "properly filed 27 application[ s] for State post-conviction or other collateral review with respect to the 28 pertinent judgment or claim." § 2244(d)(2) (emphasis added); see also Hodge v. Page 8 1 Greiner, 269 F.3d 104, 107 (2d Cir. 2001) (the petitioner was not entitled to statutory 2 tolling for a state court motion that "did not challenge his conviction. Rather, it sought 3 material he claimed might be of help in developing such a challenge, ....");Johnson 4 v. Lewis, 310 F. Supp. 2d 1121, 1125 (C.D. Cal. 2004) (the petitioner was not entitled 5 to statutory tolling for a petition for writ of mandate because it sought the return of 6 property seized during his arrest and was not directed at his underlying conviction and 7 sentence). Further, even if those documents had qualified for statutory tolling, they 8 would only entitle Petitioner to 52 days of tolling (February 1 to March 25, 2011 ). 9 Extending the limitations deadline from May 9, 2011, to June 30, 2011, would be of 10 no help to Petitioner, since he initiated this action on March 21, 2012.1' 11 The face of the FAP and state court records establish Petitioner is not entitled 12 to statutory tolling, and his Response to the OSC does not alter that conclusion. 13 D. Alternative Start of the Statute of Limitations 14 1. 15 In rare instances, AEDPA's one-year limitations period can run from "the date 16 on which the impediment to filing an application created by State action in violation 17 of the Constitution or laws of the United States is removed, if the applicant was 18 prevented from filing by such State action." 28 U.S.C. § 2244(d)( 1)(B). Asserting that 19 the statute of limitations was delayed by a state-created impediment requires 20 establishing a due process violation. Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 21 2002). Petitioner's filings do not set forth any facts that show Petitioner is entitled to 22 relief under this provision. 23 Ill 24 Ill State-Created Impediment 25 26 27 28 1' In the Response, Petitioner claims he is entitled to tolling for his DNA request and subsequent petition for writ of mandate, but he then calculates the limitations period to restart the day after his petition for writ of mandate was denied. (Resp. at 6.) That calculation is rejected as erroneous. Page 9 1 2. Newly Recognized Constitutional Right 2 AEDP A provides that, if a claim is based upon a constitutional right that is 3 newly recognized and applied retroactively to habeas cases by the United States 4 Supreme Court, the one-year limitations period begins to run on the date which the 5 new right was initially recognized by the Supreme Court. 28 U.S.C. § 2244( d)(l )(C). 6 In his Response, Petitioner contends one of his pending claims is based upon a newly- 7 recognized constitutional right. Specifically, he argues his ineffective assistance of 8 counsel claim based on his trial attorney's alleged failure to communicate a plea offer 9 (FAP at 10) is brought pursuant to Lafler v. Cooper,--- U.S. ---, 132 S. Ct. 1376 10 (2012); and Missouri v. Frye,--- U.S.---, 132 S. Ct. 1399 (2012), both of which were 11 decided on March 21, 2012. (Resp. at 6-7.) Petitioner's contention is erroneous. 12 First, while it is true that in Frye the High Court articulated a general rule that 13 "defense counsel has the duty to communicate formal offers from the prosecution to 14 accept a plea on terms and conditions that may be favorable to the accused," Frye, 132 15 S. Ct. at 1408, the Court's clarification of a defense counsel's duty is not a newly- 16 recognized constitutional right. The right at issue is Petitioner's Sixth Amendment 17 right to the effective assistance of counsel, the legal standard of which has been 18 recognized since 1984. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 19 ( 1984). In fact, Petitioner raised his related ineffective assistance claim in the state 20 courts more than five months before Frye or Lafler were decided, so his contention 21 that his claim is based on those cases is false and misleading.~' (FAP, Ex. Gat 5.) 22 Second, Petitioner ignores the requirement that the newly-recognized right at issue 23 must have been "made retroactively applicable to cases on collateral review." § 24 2244( d)(l )(C). Neither Frye nor Lafler has been held to apply retroactively. Cf Reedy 25 26 27 28 Moreover, if his claim had been based exclusively on Frye and Lafler, it would also be unexhausted because he never raised it in the state courts. See § 2254(b )(1 )(A). 'J.t Page 10 1 v. Hill, 383 Fed. Appx. 689,690 (9th Cir. 2010) (cited pursuant to Ninth Circuit Rule 2 36-3) (filing a habeas petition within one year of the Supreme Court's decision in 3 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), did not render that 4 petition timely under 2244(d)(l)(C) because Blakely's holding was not retroactive). 5 Petitioner is not entitled to an alternate startofthe limitations period based upon 6 a newly-recognized and retroactive constitutional right. 7 3. 8 AEDPA also provides that, in certain cases, its one-year limitations period shall 9 run from "the date on which the factual predicate of the claim or claims presented 10 could have been discovered through the exercise of due diligence." 28 U.S.C. § 11 2244(d)(l)(D); Hasan v. Galaza, 254 F.3d 1150, 1155 (9th Cir. 2001). Petitioner's 12 filings do not set forth any facts that show Petitioner is entitled to an alternate start 13 date to the limitations period based upon the late discovery of the factual predicate. 14 E. Discovery of Factual Predicate Equitable Tolling 15 The AEDPA's limitations period "is subject to equitable tolling in appropriate 16 cases." Holland v. Florida, ---U.S. ---, 130 S. Ct. 2549, 2560 (2010). However, 17 "[e ]quitable tolling is justified in few cases" and "the threshold necessary to trigger 18 equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." 19 Spitsyn v. Moore, 345 F.3d 796,799 (9th Cir. 2003) (quoting Miranda v. Castro, 292 20 F.3d 1063, 1066 (9th Cir. 2002)). 21 "[A] litigant seeking equitable tolling bears the burden of establishing two 22 elements: ( 1) that he has been pursuing his rights diligently, and (2) that some 23 extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 24 418, 125 S. Ct.l807 (2005);Lawrencev. Florida, 549U.S. 327,336, 127 S. Ct. 1079. 25 (2007). Pace's diligence prong requires the petitioner to show he engaged in 26 reasonably diligent efforts to file his § 2254 petition throughout the time the 27 limitations period was running. Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 28 2006); see also Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (equitable tolling Page 11 1 requires a showing that "the party seeking equitable tolling must have acted with 2 reasonable diligence throughout the period he seeks to toll" and "extraordinary 3 circumstances prevented him from filing his petition on time"). The petitioner must 4 also demonstrate that he exercised reasonable diligence in attempting to file his habeas 5 petition after the extraordinary circumstances began otherwise the "link of causation 6 between the extraordinary circumstances and the failure to file [is] broken." Spitsyn, 7 345 F.3d at 802. Pace's "extraordinary circumstances" prong requires the petitioner 8 to "additionally show that the extraordinary circumstances were the cause of his 9 untimeliness, and that the extraordinary circumstances made it impossible to file a 10 petition on time." Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal 11 quotations and citations omitted). Further, equitable tolling determinations are "highly 12 fact-dependent," Mendoza, 449 F.3d at 1068, and the petitioner "bears the burden of 13 showing that equitable tolling is appropriate." Espinoza-Matthews v. California, 432 14 F.3d 1021, 1026 (9th Cir. 2005). 15 In the Response, Petitioner makes two separate arguments that implicate 16 equitable tolling principles. First, he claims he never received any notification that his 17 first state habeas petition had been received by the court, filed or denied. (Resp. at 2.) 18 This argument is frivolous as it concerns Pace's equitable tolling requirements. The 19 Court has already discussed the fact that Petitioner's first state habeas petition was 20 filed and summarily denied in February 2009, before Petitioner was even sentenced, 21 well over a year before the AEDPA limitations period started running, and more than 22 two years before he filed another state habeas petition. Petitioner has not proffered any 23 explanation as to why in well over three years since he submitted that petition for 24 filing he has never once followed up to determine if it was even received, let alone 25 decided. And, most pertinent to equitable tolling, he has certainly not shown any 26 diligence in filing a timely federal habeas petition while the limitations period was 27 running from May 10, 2010, until May 9, 2011. Mendoza, 449 F.3d at 1070 (a 28 petitioner seeking equitable tolling must demonstrate he made diligent efforts "during Page 12 1 the running of the AEDPA time limitation.... ") Petitioner's allegations that he 2 showed diligence by filing post-trial motions, pursuing a direct appeal, and seeking 3 DNA testing are irrelevant to the diligence required for equitable tolling of AEDPA's 4 limitations period, and if anything, his actions conclusively show his alleged 5 unawareness of the denial of his first petition was in no way an extraordinary 6 circumstance that made it impossible to file a federal habeas petition on time. Ramirez, 7 571 F.3dat997. 8 Second, Petitioner claims his appellate attorney's mistakes contributed to his 9 untimely FAP. He first argues that he delayed filing his second state habeas petition 10 based on counsel's advice. (Resp. at 3.) That argument fails. Petitioner refers to a letter 11 attached as Exhibit A to his Response, written by his appellate counsel on July 21, 12 2009, informing Petitioner that he was going to draft and file his opening brief on 13 direct appeal. In the letter, counsel also stated: 14 I read some of the materials you wrote to [Appellate Defenders 15 Inc.]. I ask for your own sake that you not file a pro per habeas corpus 16 petition until I have read the record and communicated my opinion(s). 17 You only get one bite of the apple. You risk the court simply denying 18 your writ (the most likely outcome) and leaving you with no other 19 remedy. 20 (Resp., Ex. A.) Counsel's advice was not only correct, but it came in July 2009, nearly 21 10 months before the AEDPA limitations period commenced, and before Petitioner's 22 opening brief on appeal was even filed. Petitioner has not alleged or shown how 23 appellate counsel's sound advice very early in the representation, that Petitioner 24 refrain from doing anything rash before the attorney could review his case, had any 25 bearing whatsoever on Petitioner's failure to file a federal habeas petition while the 26 AEDPA limitations period was running the following year. See Allen v. Lewis, 255 27 F.3d 798, 800 (9th Cir. 2001) (the petitioner must show the alleged extraordinary 28 circumstances were the but-for and proximate cause of his untimeliness). Indeed, it Page 13 1 was Petitioner's own decision to wait until February 2011 to request DNA testing, and 2 then wait even longer after he determined there was "no other known remedy" (Resp. 3 at 3), to file a state habeas petition in an attempt to exhaust his pending claims. He 4 cannot fault his counsel's helpful advice in July 2009, that he had "one bite of the 5 apple," for his own egregious lack of diligence. See Spitsyn, 345 F.3d at 802 (without 6 reasonable diligence there is no "link of causation between the extraordinary 7 circumstances and the failure to file ... .")Ji1 8 Petitioner next claims his appellate counsel on a separate occasion miscalculated 9 the commencement ofthe AEDPA limitations period. (Resp. at 3&5.) This contention 10 is rejected because an attorney's miscalculation of the limitations period does not 11 constitute an extraordinary circumstance sufficient to warrant equitable tolling. See 12 Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001). Moreover, to the extent 13 counsel made a miscalculation, there is nothing to show it had any effect on the 14 timeliness of the pending FAP. Petitioner failed to constructively file a federal habeas 15 petition until March 21, 2012, several months later than his counsel advised, so he did 16 not rely on his attorney's advice, and it was not the cause of his untimeliness. Allen, 17 255 F.3d at 800. 18 Lastly, Petitioner claims to the extent it appears he lacked diligence for failing 19 to file a petition for review on direct appeal, it was "only because Petitioner's counsel 20 ... refused his requests to do so." (Resp. at 3.) But, Exhibit B to Petitioner's Response 21 establishes that, on March 31, 2010, the day after the court of appeal denied 22 Petitioner's direct appeal, counsel wrote Petitioner a letter informing him ofthe denial, 23 and that he would not be filing a petition for review because he believed it had no 24 chance of success. Counsel then supplied Petitioner with all the pertinent information 25 26 27 28 Additionally, Petitioner's appellate counsel sent him his trial transcripts on April 8, 2010, more than a month before the start of AEDPA's limitations period. (Resp., Ex. C.) §! Page 14 1 for filing one in prose. (Resp., Ex. B.) Petitioner could certainly, through the exercise 2 of reasonable diligence, have filed a petition for review. Mendoza, 449 F.3.d at 1070 3 The face ofthe FAP and state court records establish Petitioner is not entitled 4 to any equitable tolling, and his Response does not alter that conclusion. 5 ORDER 6 Based upon the foregoing, the Court finds the FAP is time-barred. Further, by 7 way of the OSC, the Court finds Petitioner has received notice and an adequate 8 opportunity to show cause why the FAP should not be dismissed as time-barred. 9 ACCORDINGLY, IT IS HEREBY ORDERED THAT the reference to the magistrate 10 judge is vacated and the FAP is dismissed with prejudice. The clerk is directed to enter 11 judgment dismissing this action with prejudice and notifying Petitioner of said 12 judgment. Any and all pending motions are terminated. 13 14 15 DATED: June 21,2012 16 OTIS D. WRIGHT II UNITED STATES DISTRICT JUDGE 17 18 Presented by: 19 20 21 22 23 24 25 26 27 28 Page 15

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