Corral v. Yates

Filing 30

ORDER GRANTING 11 Respondent's Motion to Dismiss the Petition; ORDER DENYING Petitioner's Motion for an Evidentiary Hearing (Docs. 21 , 26 ); ORDER DISMISSING PETITION and Directing the Entry of Judgment for Respondent; and ORDER DECLINING to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 9/6/2011. CASE CLOSED. (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 MICHAEL CORRAL, 13 Petitioner, 14 v. 15 JAMES YATES, Warden, 16 Respondent. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01341-SKO-HC ORDER GRANTING RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 11, 1, 6) ORDER DENYING PETITIONER’S MOTION FOR AN EVIDENTIARY HEARING (DOCS. 21, 26) ORDER DISMISSING THE PETITION AND DIRECTING THE ENTRY OF JUDGMENT FOR RESPONDENT ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 20 21 Petitioner is a state prisoner proceeding pro se with a 22 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 23 Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to 24 the jurisdiction of the United States Magistrate Judge to conduct 25 all further proceedings in the case, including the entry of final 26 judgment, by manifesting their consent in writings signed by the 27 parties or their representatives and filed by Petitioner on 28 August 2, 2010, and on behalf of Respondent on December 27, 2010. 1 1 Pending before the Court is Respondent’s motion to dismiss the 2 petition, which was filed on February 4, 2011. 3 2011, Petitioner filed an opposition styled as an objection to 4 the motion, and Respondent filed a reply on April 19, 2011. 5 Pursuant to the Court’s order, Petitioner filed a sur-reply and 6 declaration on July 11, 2011. 7 sur-reply on August 29, 2011. On February 22, Respondent filed a reply to the 8 I. 9 Respondent has filed a motion to dismiss the petition on the 10 ground that Petitioner filed his petition outside of the one-year 11 limitation period provided for by 28 U.S.C. § 2244(d)(1). 12 Proceeding by a Motion to Dismiss Rule 4 of the Rules Governing Section 2254 Cases in the 13 United States District Courts (Habeas Rules) allows a district 14 court to dismiss a petition if it “plainly appears from the face 15 of the petition and any exhibits annexed to it that the 16 petitioner is not entitled to relief in the district court....” 17 The Ninth Circuit has allowed respondents to file motions to 18 dismiss pursuant to Rule 4 instead of answers if the motion to 19 dismiss attacks the pleadings by claiming that the petitioner has 20 failed to exhaust state remedies or has violated the state’s 21 procedural rules. 22 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 23 a petition for failure to exhaust state remedies); White v. 24 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 25 review a motion to dismiss for state procedural default); Hillery 26 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 27 Thus, a respondent may file a motion to dismiss after the Court 28 orders the respondent to respond, and the Court should use Rule 4 See, e.g., O’Bremski v. Maass, 915 F.2d 418, 2 1 standards to review a motion to dismiss filed before a formal 2 answer. 3 See, Hillery, 533 F. Supp. at 1194 & n.12. Here, Respondent's motion to dismiss addresses the 4 untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1). 5 The material facts pertinent to the motion are mainly contained 6 in copies of the official records of state judicial proceedings 7 which have been provided by Respondent and Petitioner, and as to 8 which there is no factual dispute. 9 declarations concerning matters pertinent to equitable tolling. The parties have submitted 10 Because Respondent has not filed a formal answer, and because 11 Respondent's motion to dismiss is similar in procedural standing 12 to a motion to dismiss for failure to exhaust state remedies or 13 for state procedural default, the Court will review Respondent’s 14 motion to dismiss pursuant to its authority under Rule 4. 15 II. 16 Petitioner alleges that he is a resident of the Pleasant 17 Valley State Prison (PVSP) serving a sentence of sixteen (16) 18 years and four (4) months imposed by the Fresno County Superior 19 Court in December 2006 upon Petitioner’s conviction of car 20 jacking and second degree robbery. 21 challenges his sentence, contending that the aggravated term was 22 unauthorized absent jury findings made upon proof beyond a 23 reasonable doubt. 24 decisions upholding the sentence. 25 Background (Pet. 4-5.) (Pet. 1.) Petitioner He also challenges state court (Id. at 6.) Documents lodged by Respondent in support of the motion to 26 dismiss reflect that Petitioner entered a guilty plea to one 27 count of car jacking in violation of Cal. Pen. Code § 215(a) and 28 one count of second degree robbery in violation of Cal. Pen. Code 3 1 § 211. 2 with a deadly or dangerous weapon within the meaning of Cal. Pen. 3 Code § 12022(b)(1). 4 prior prison term, prior serious felony conviction, and prior 5 “strike” conviction in violation of Cal. Pen. Code 6 §§ 667.5(b), 667(a), 667(b)-(i), and 1170.12(a)-(d). 7 Petitioner was initially granted probation. Petitioner admitted that as to each offense, he was armed He further admitted special allegations of a When Petitioner 8 failed to meet the conditions of probation, the trial court 9 ordered that a previously stayed term be executed on December 18, (LD 1, 2.)1 10 2006. 11 the car jacking, Petitioner was sentenced to serve an upper term 12 of nine years, one year for the weapon enhancement, and an 13 additional five-year term for the prior serious felony 14 conviction. 15 months for the weapon enhancement were also imposed. The strike allegation was dismissed, and for A consecutive one-year term for the robbery and four (Id.) 16 Petitioner appealed the sentence, and on November 6, 2007, 17 the Court of Appeal of the State of California, Fifth Appellate 18 District (DCA) modified the judgment to stay the term imposed for 19 the robbery, and affirmed the judgment as modified. 20 (LD 2.) On December 13, 2007, Petitioner petitioned for review in 21 the California Supreme Court which was summarily denied on 22 January 16, 2008. 23 (LD 3-4.) On March 15, 2007, Petitioner filed a petition for writ of 24 habeas corpus in the trial court. 25 petition on May 1, 2007, in an order noting a lack of 26 documentation as well as the pendency of Petitioner’s appeal in (LD 5.) The court denied the 27 28 1 “LD” refers to lodged documents submitted by Respondent in support of the motion to dismiss. 4 1 the DCA. 2 DCA had jurisdiction, and the trial court lacked jurisdiction. 3 (LD 6, 1-2.) 4 The trial court stated that because of the appeal, the On December 19, 2007, Petitioner filed another petition for 5 writ of habeas corpus in the trial court. 6 14, 2008, the court denied the petition. 7 that it lacked jurisdiction to grant the requested relief because 8 the petition for review that had been filed by Petitioner in the 9 Supreme Court in December 2007 was still pending, and no 10 11 remittitur had issued. (LD 7.) On January The court determined (LD 8.) On April 6, 2008, Petitioner filed a third petition for writ 12 of habeas corpus in the Fresno County Superior Court, which was 13 denied on April 25, 2008. 14 (LD 9, 10.) On June 8, 2008, Petitioner filed a petition for writ of 15 habeas corpus in the DCA, which was summarily denied on December 16 4, 2008. 17 (LD 11, 12.) On March 29, 2009, Petitioner filed another petition for 18 writ of habeas corpus in the DCA, which was summarily denied on 19 April 17, 2009. 20 (LD 13, 14.) Petitioner filed a petition for writ of habeas corpus in the 21 California Supreme Court on May 8, 2009, which was summarily 22 denied on September 30, 2009. 23 24 (LD 15, 16.) The petition in the instant case was filed on July 26, 2010. (Pet. 1.)2 25 2 26 27 28 Under the mailbox rule, a prisoner's pro se habeas petition is "deemed filed when he hands it over to prison authorities for mailing to the relevant court." Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); Houston v. Lack, 487 U.S. 266, 276 (1988). The mailbox rule applies to federal and state petitions alike. Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citing Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)). 5 1 III. 2 On April 24, 1996, Congress enacted the Antiterrorism and Statute of Limitations 3 Effective Death Penalty Act of 1996 (AEDPA). 4 to all petitions for writ of habeas corpus filed after the 5 enactment of the AEDPA. 6 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en 7 banc), cert. denied, 118 S.Ct. 586 (1997). 8 applies to the instant petition, which was filed in July 2010. 9 The AEDPA applies Lindh v. Murphy, 521 U.S. 320, 327 Thus, the AEDPA The AEDPA provides a one-year period of limitation in which 10 a petitioner must file a petition for writ of habeas corpus. 11 U.S.C. § 2244(d)(1). 12 13 28 As amended, subdivision (d) reads: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – 14 15 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 16 17 18 filing an violation States is filing by (B) the date on which the impediment to application created by State action in of the Constitution or laws of the United removed, if the applicant was prevented from such State action; 19 20 21 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 22 (D) the date on which the factual predicate 23 24 25 26 27 28 Petitioner did not sign and date the petition he initially filed in this Court. (Pet., doc. 1, 8.) On July 28, 2010, he submitted a supplemental document stating that he was sending page 7 of the writ petition that was filed on July 26, 2010, because he forgot to date and sign the document. (Doc. 6, 1.) He signed the petition as of July 28, 2010. (Id. at 2.) His request that the supplemental document be filed with his petition was granted. (Doc. 7, filed December 7, 2010.) Neither the electronic nor the paper record contains the envelope within which the petition was mailed. Thus, application of the mailbox rule is not possible based on the documentation before the Court. 6 1 of the claim or claims presented could have been discovered through the exercise of due diligence. 2 3 4 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 5 28 U.S.C. § 2244(d). 6 Generally the statute of limitations is an affirmative 7 defense, and the party claiming the defense bears the burden of 8 proof unless the limitations statute is considered to be 9 jurisdictional. Kingman Reef Atoll Investments, L.L.C. v. U.S., 10 541 F.3d 1189, 1197 (9th Cir. 2008); Payan v. Aramark Management 11 Services Ltd. Partnership, 495 F.3d 1119, 1122 (9th Cir. 2007). 12 The one-year statute of limitations applicable to petitions for 13 federal habeas corpus relief by state prisoners is not 14 jurisdictional and does not set forth an inflexible rule 15 requiring dismissal whenever the one-year clock has run. Holland 16 v. Florida, --U.S.–, 130 S.Ct. 2549, 2560 (2010). Thus, under 17 the AEDPA, the respondent bears the burden of proving that the 18 AEDPA limitations period has expired. Ratliff v. Hedgepeth, 712 19 F.Supp.2d 1038, 1050 (C.D.Cal. 1020) (collecting authorities). 20 A. Commencement of the Limitation Period 21 Respondent argues that the one-year limitation period of 22 § 2244(d) began to run on the date specified in § 2244(d)(1)(A), 23 namely, the date on which the judgment became final by the 24 conclusion of direct review or the expiration of the time for 25 seeking such review. 26 However, Petitioner contends that difficulties he 27 encountered in gaining access to the prison law library 28 7 1 constituted an impediment to filing an application that was 2 created by state action and prevented his filing a petition for 3 habeas relief. 4 § 2244(d)(1)(B), the limitations period did not begin to run 5 until the date on which the impediment was removed. 6 13, 6-7.) 7 8 9 Thus, Petitioner argues that pursuant to 1. (Opp., doc. Removal of State-Created Impediment If an applicant was prevented from filing a federal habeas petition by an impediment created by state action in violation of 10 the Constitution or laws of the United States, then the 11 limitations period will commence running from the date on which 12 the impediment to filing is removed. 13 A circumstance or occurrence argued to have prevented an inmate 14 from filing a federal habeas petition pursuant to § 2244(d)(1)(B) 15 must violate the Constitution or laws of the United States. 16 § 2244(d)(1)(B); Shannon v. Newland, 410 F.3d 1083, 1088 n.4 (9th 17 Cir. 2005). 18 alleged impediment actually caused the inmate to be unable to 19 file a timely petition. 20 61 (9th Cir. 2007). 21 28 U.S.C. § 2244(d)(1)(B). Further, the petitioner must establish that the Bryant v. Schriro, 499 F.3d 1056, 1060- Here, Petitioner alleges that the conditions at the law 22 library at PVSP are not yet in compliance with the federal 23 consent decree in Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal. 24 1970). 25 (Reply, doc. 13, 5.) The Court takes judicial notice of the docket and document 26 number 321 filed on April 20, 2010, in Gilmore v. Lynch, case 27 number 3:66-cv-45878-SI, a case before the United States District 28 Court for the Northern District of California, in which the court 8 1 consolidated numerous suits of inmates and issued an injunction 2 requiring California to maintain a specified list of legal 3 literature in all its prisons to help inmates gain access to the 4 courts.3 5 state correctional department offering a more comprehensive list 6 of materials, and it ordered their adoption. 7 220 F.3d 987, 992-95 (9th Cir. 987). 8 dismissed by the district court with prejudice in 1980, the court 9 retained jurisdiction over the 1972 injunction until it granted In 1972, the court approved regulations proposed by the Gilmore v. People, After the Gilmore case was 10 the defendants’ motion to terminate the injunction and the 11 court’s jurisdiction on April 20, 2010. 12 the Gilmore case is no longer pending. 13 (Doc. 321, 1-2.) Thus, It is now established that there is no abstract, 14 freestanding constitutional right to have access to a law library 15 or legal assistance, or even to file a timely § 2254 petition; 16 rather, there is a right of meaningful access to the courts. 17 Lewis v. Casey, 518 U.S. 343, 350-51 (1996); Ramirez v. Yates, 18 571 F.3d 993, 1000-1001 (9th Cir. 2009). 19 to issue an injunction occurred well in advance of the 1996 20 decision in Lewis v. Casey, 518 U.S. 343, which established that 21 the right of access to the courts may be satisfied not only by 22 law libraries, but also by other methods of providing meaningful 23 access, and that a deficient prison law library or legal 24 assistance program is not in itself actionable. 25 518 U.S. at 350-51. The decision in Gilmore Lewis v. Casey, 26 27 28 3 The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). 9 1 The Court concludes that the fact that a prison law library 2 might not meet the standards of the injunction in the Gilmore 3 case does not by itself establish an unconstitutional denial of 4 access to the courts. 5 Petitioner alleges generally that prison authorities at PVSP 6 have denied library privileges to prisoners with pending habeas 7 deadlines, and the library contains inadequate materials and 8 computer terminals to accommodate the overcrowded conditions of 9 the prison. All the law books have been removed from the 10 library, and there are five (5) computers with different books in 11 them that are updated every three (3) months. 12 limitations have necessitated reducing staff and instituting 13 rolling lock-downs that further limit or preclude library access 14 for weeks at a time. 15 unspecified program down for one watch every other day, and the 16 policy on the down days is to call in only inmates who are 17 priority law library users (PLU) with a verified legal deadline 18 within thirty days. 19 educational programming reduced his library time because he was 20 not permitted to leave his work/education station to use the 21 library. (Doc. 13, 5-6.) (Id. at 6.) Further, budget The lock-downs shut an Petitioner alleges that his (Id. at 5.) 22 Petitioner specifically alleges that the prison was locked 23 down from August 15, 2010, to September 8, 2010, and that there 24 were other, shorter lock-downs. 25 the problems and policies concerning the law library have impeded 26 him from being able to file his pleadings any sooner because he 27 needed access to legal research materials and help to understand 28 them. He alleges that the totality of (Id. at 6.) 10 1 The record contains the declaration of R. Kevorkian, who for 2 sixteen years has been a librarian at PVSP. 3 librarian states that he or she not only manages the library’s 4 collections and acquisitions in accordance with state regulations 5 and operational procedures, but also supervises work and monitors 6 prisoners’ access to the library. 7 typically 9:30 a.m. through 3:45 p.m., Monday through Friday. 8 During institutional restrictions such as lock-downs, inmates may 9 use the library by establishing urgency of need and obtaining 10 preferred-legal-user (PLU) access or by being served at their 11 cells with photocopied legal research materials, such as case law 12 or statutes, prepared upon request. 13 conflict, such as a work assignment, may be overridden by 14 establishing urgency of need and using the “ducat” or inmate pass 15 system, whereby once the assignment office issues a ducat, an 16 inmate may be called to the law library during his assigned work 17 hours. 18 days are given priority status pursuant to departmental and 19 prison operations manuals. 20 (Doc. 20-1, 1.) The The law library hours are A pre-existing scheduling Inmates with court-ordered deadlines within thirty (30) (Id. at 1.) In March and April 2011, Kevorkian also checked various 21 logs, which are described as accurate, including records of 22 inmates designated as having PLU status, dates and times of 23 inmates’ access to the library, and inmates’ requests for copies. 24 The PLU log reflected that Petitioner’s name was not listed and 25 that he did not apply for PLU status from December 2008 to the 26 present. 27 2008 and July 2010, Petitioner accessed the library five times: 28 February 17, 2009, for about one-half hour; March 26, 2009, for The library in/out log reflected that between December 11 1 about an hour; March 9, 2010, for fifty minutes; July 13, 2010, 2 for an hour; and July 21, 2010, for an hour and twenty minutes. 3 (Id. at 1-2.) 4 January 2009 through July 2010 reflected one instance in which 5 Petitioner made 104 copies of a § 2254 petition on July 13, 2010. 6 To the best of the librarian’s knowledge, Petitioner was not 7 denied access to the library from December 2008 to April 18, 8 2011, the date of the declaration. 9 The log of inmates’ requests for copies from (Id. at 2.) In response, Petitioner declared that he sought priority 10 library user status (PLU). 11 was informed by Kevorkian that unless he had a court order or 12 letter stating a deadline, no such status could be granted to 13 Petitioner. 14 regular status less than half of the hours of 9:30 to 3:30 Monday 15 through Friday; access depended upon housing assignment and 16 frequent lock-downs. 17 “deceptive.” Whenever he requested PLU status, he Further, the library was available to inmates in He further alleged that Kevorkian was (Doc. 26, 7.) 18 Petitioner submitted a declaration of inmate Charles Saenz 19 that confirms the difficulty of obtaining access to the library 20 except for one day a week because of lock-downs, the need for a 21 thirty-day deadline, and yard time schedules. 22 characterized library access as first come first served, and not 23 guaranteed. 24 Hysell, who is involved in numerous court cases, similarly 25 confirms Petitioner’s general assertions concerning access to the 26 law library, available resources, and the PLU system. 27 9.) 28 lacked a thirty-day deadline, would be facing a state-created (Id.) (Id. at 8.) Saenz The declaration of inmate Douglas William (Id. at Hysell further opines that a layman such as Petitioner, who 12 1 impediment to researching and filing a cognizable petition. (Id.) 2 The declaration of inmate William Sutherland, who has four 3 ongoing cases and is required to do hours of research, confirms 4 the existence of PLU access but indicates that deadlines that are 5 set by rules (apparently as distinct from court order) are not a 6 basis to allow PLU status. 7 (Id. at 10.) Petitioner’s factual allegations concerning library access 8 and lock-downs are general in nature; he does not detail specific 9 attempts to gain access to the law library or to use any 10 alternative means of research. 11 between August 15, 2010, and September 8, 2010, which Petitioner 12 specifically details, occurred after the petition was filed here. 13 In contrast, the declaration of the librarian demonstrates that 14 there were various methods to perform legal research despite 15 conflicting work assignments, educational programs, or lock- 16 downs. 17 2008, when the DCA denied Petitioner’s first petition filed in 18 that court for habeas relief, and the filing of the instant 19 petition on July 26, 2010, records reflect that Petitioner did 20 not seek preferred user status, sought to use the library only 21 five times for approximately five hours, and only used copy 22 services once to copy a § 2254 petition. 23 The one period of lock-down Further, during the critical period between December 4, In summary, Petitioner has not shown that he suffered a 24 denial of his right of access to the courts or that it resulted 25 in any obstruction of his ability to file a habeas petition. 26 As set forth above, in the context of § 2244(d)(1)(B), 27 there is no abstract, freestanding constitutional right to have 28 access to a law library or legal assistance, or even to file a 13 1 timely § 2254 petition. 2 (1996); Ramirez v. Yates, 571 F.3d 993, 1000-1001. 3 is the right of meaningful access to the courts that warrants 4 protection. 5 from filing a habeas petition within the meaning of § 6 2244(d)(1)(B), the petitioner must show that the circumstance 7 prevented him from presenting his claims in any form to any 8 court. 9 limited access to legal materials and copying service, and the 10 petitioner is able to file multiple petitions in state courts 11 during the pertinent time period, the petitioner has failed to 12 establish an impediment by unlawful or unconstitutional state 13 action that actually prevented the filing of a timely petition. 14 Id. 15 Id. Lewis v. Casey, 518 U.S. 343, 350-51 Instead, it To show that a circumstance prevented a petitioner Where a petitioner establishes only generalized, Here, as the procedural summary of Petitioner’s state court 16 proceedings reflects, Petitioner was able during the pertinent 17 time to file numerous state court petitions. 18 multiple petitions demonstrates that Petitioner did not suffer a 19 deprivation of his constitutional right to meaningful access to 20 the courts and thus was not prevented from filing a federal 21 habeas petition. 22 The filing of Ramirez v. Yates, 571 F.3d at 1000-1001. In summary, Petitioner has not alleged facts showing that 23 there was unconstitutional state action or that any state action 24 resulted in an impediment that actually prevented Petitioner from 25 filing a timely habeas petition. 26 Petitioner’s argument that § 2244(d)(1)(B) applies. 27 28 Accordingly, the Court rejects The Court concludes that the portion of § 2244(d)(1) that governs the commencement of the running of the limitations period 14 1 is § 2244(d)(1)(A), which provides that the limitation period 2 runs from the date on which the judgment became final by the 3 conclusion of direct review or the expiration of the time for 4 seeking such review. 5 6 2. Finality of the Judgment Under § 2244(d)(1)(A), the “judgment” refers to the sentence 7 imposed on the petitioner. 8 57 (2007). 9 December 18, 2006. 10 Burton v. Stewart, 549 U.S. 147, 156- The last sentence was imposed on Petitioner on Under § 2244(d)(1)(A), a judgment becomes final either upon 11 the conclusion of direct review or the expiration of the time for 12 seeking such review in the highest court from which review could 13 be sought. 14 2001). 15 upon either 1) the conclusion of all direct criminal appeals in 16 the state court system, followed by either the completion or 17 denial of certiorari proceedings before the United States Supreme 18 Court; or 2) if certiorari was not sought, by the conclusion of 19 all direct criminal appeals in the state court system and the 20 expiration of the time permitted for filing a petition for writ 21 of certiorari. 22 Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525 23 U.S. 1187 (1999)). 24 sought certiorari from the United States Supreme Court. Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. The statute commences to run pursuant to § 2244(d)(1)(A) Wixom, 264 F.3d at 897 (quoting Smith v. Neither party has indicated that Petitioner 25 Here, Petitioner’s direct criminal appeals in the state 26 court system concluded when his petition for review was denied by 27 the California Supreme Court on January 16, 2008. The time 28 permitted for seeking certiorari was ninety days. Supreme Court 15 1 2 Rule 13; Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The Court will apply Fed. R. Civ. P. 6(a) in calculating the 3 pertinent time periods. 4 n.2 (9th Cir. 2008), cert. denied, 130 S.Ct. 2415 (2010). 5 Applying Fed. R. Civ. P. 6(a)(1)(A), the day of the triggering 6 event is excluded from the calculation. 7 period commenced on January 17, 2008, the day following the 8 California Supreme Court’s denial of review. 9 Civ. P. 6(a)(1)(B), which requires counting every day, the See, Waldrip v. Hall, 548 F.3d 729, 735 Thus, the ninety-day Applying Fed. R. 10 ninetieth day was April 15, 2008. 11 final within the meaning of § 2244(d)(1)(A) on April 15, 2008. 12 Thus, the judgment became Therefore, the limitation period began to run on April 16, 13 2008, and concluded one year later on April 15, 2009. 14 Civ. P. 6(a); Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th 15 Cir. 2001) (holding analogously that the correct method for 16 computing the running of the one-year grace period after the 17 enactment of AEDPA is pursuant to Fed. R. Civ. P. 6(a), in which 18 the day upon which the triggering event occurs is not counted). 19 Fed. R. Because the petition in the instant case was not filed until 20 July 26, 2010, the petition appears on its face to have been 21 filed outside the one-year limitation period provided for by 22 § 2244(d)(1). 23 24 B. Statutory Tolling Title 28 U.S.C. § 2244(d)(2) states that the “time during 25 which a properly filed application for State post-conviction or 26 other collateral review with respect to the pertinent judgment or 27 claim is pending shall not be counted toward” the one-year 28 limitation period. 28 U.S.C. § 2244(d)(2). 16 Once a petitioner is 1 on notice that his habeas petition may be subject to dismissal 2 based on the statute of limitations, he has the burden of 3 demonstrating that the limitations period was sufficiently tolled 4 by providing the pertinent facts, such as dates of filing and 5 denial. 6 (citing Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002), 7 abrogation on other grounds recognized by Moreno v. Harrison, 245 8 Fed.Appx. 606 (9th Cir. 2007)). 9 Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009) An application for collateral review is “pending” in state 10 court “as long as the ordinary state collateral review process is 11 ‘in continuance’-i.e., ‘until the completion of’ that process.” 12 Carey v. Saffold, 536 U.S. 214, 219-20 (2002). 13 this generally means that the statute of limitations is tolled 14 from the time the first state habeas petition is filed until the 15 California Supreme Court rejects the petitioner's final 16 collateral challenge, as long as the petitioner did not 17 “unreasonably delay” in seeking review. 18 Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). 19 of limitations is not tolled from the time a final decision is 20 issued on direct state appeal and the time the first state 21 collateral challenge is filed because there is no case “pending” 22 during that interval. 23 In California, Id. at 221-23; accord, The statute Id. In Carey v. Saffold, 536 U.S. 214, the Court held that an 24 application is “pending” until it “has achieved final resolution 25 through the State's post-conviction procedures.” 26 application does not achieve the requisite finality until a state 27 petitioner “completes a full round of collateral review.” 28 219-20. Id. at 220. Accordingly, in the absence of undue delay, an 17 An Id. at 1 application for post-conviction relief is pending during the 2 “intervals between a lower court decision and a filing of a new 3 petition in a higher court” and until the California Supreme 4 Court denies review. 5 1048 (9th Cir. 2003). 6 Id. at 223; Biggs v. Duncan, 339 F.3d 1045, However, when one full round up the ladder of the state 7 court system is complete and the claims in question are 8 exhausted, a new application in a lower court begins a new round 9 of collateral review. Biggs v. Duncan, 339 F.3d at 1048. The 10 time between the completion of a first round of collateral review 11 and the beginning of a second round is not tolled. 12 Ramirez, 340 F.3d 817, 820 (9th Cir. 2003), abrogated on other 13 grounds by Evans v. Chavis, 546 U.S. 189 (2006). 14 Delhomme v. The first two habeas petitions filed by Petitioner in the 15 trial court on March 15, 2007, and December 19, 2007, were filed 16 before the California Supreme Court’s denial on January 16, 2008, 17 of Petitioner’s petition for review of the DCA’s decision 18 modifying and otherwise affirming the judgment on direct appeal. 19 Because the limitations period did not begin to run until even 20 later, after expiration of the time to seek certiorari from the 21 California Supreme Court’s denial of review, Petitioner’s first 22 two habeas petitions were filed and denied before the limitations 23 period commenced running. 24 commencement of the running of the statutory limitation period 25 has no tolling consequence. 26 Thus, the first two habeas petitions filed in the trial court 27 could not, and did not, toll the running of the limitations 28 period. A collateral action filed before the Waldrip v. Hall, 548 F.3d 729, 735. 18 1 The next petition for collateral review was Petitioner’s 2 third petition for writ of habeas corpus filed in the trial court 3 on April 6, 2008. 4 Court’s denial of the petition for review on January 16, 2008, 5 and the filing of the third habeas petition on April 6, 2008, is 6 not tolled because there was no case “pending” during that 7 interval. 8 The interval between the California Supreme Nino v. Galaza, 183 F.3d at 1006. Although the date of filing the petition in the Superior 9 Court on April 6, 2008, preceded the commencement of the running 10 of the limitation period on April 16, 2008, the petition remained 11 pending and was not denied until April 25, 2008. 12 petition was pending between April 16, 2008, and April 25, 2008, 13 during the running of the limitation period. 14 third petition in the trial court tolled the statute for ten (10) 15 days. 16 Thus, the Therefore, this Petitioner next filed a petition for writ of habeas corpus 17 in the DCA on June 8, 2008. 18 between the trial court’s denial of the habeas petition on April 19 25, 2008, and the filing of the DCA petition on June 8, 2008, is 20 tolled because Petitioner was proceeding to complete one full 21 round of collateral review without unreasonable delay. 22 Saffold, 536 U.S. at 219-20. 23 pendency of the DCA petition from June 8, 2008, until the DCA’s 24 denial on December 4, 2008, was tolled. 25 period was tolled from April 16, 2008, when the limitation period 26 commenced to run during the pendency of the third trial court 27 petition, until December 4, 2008, when the DCA denied the first 28 petition, for a total of 233 days. The reasonably short time period Carey v. Likewise, the period of the 19 Thus, the limitation 1 Respondent contends that there should be no “gap” or 2 “interval” tolling for the period between December 4, 2008, when 3 the DCA denied the first petition filed in the DCA, and March 29, 4 2009, when Petitioner filed another petition for habeas relief in 5 the DCA. 6 successive and thus did not constitute part of one continuous 7 round of collateral review. 8 Petitioner unreasonably delayed in bringing the second DCA 9 petition. Respondent argues that the second DCA petition was Respondent also argues that 10 Absent a clear direction or explanation from the California 11 Supreme Court about the meaning of the term “reasonable time” in 12 a specific factual context, or a clear indication that a filing 13 was timely or untimely, a federal court hearing a subsequent 14 federal habeas petition must examine all relevant circumstances 15 concerning the delay in each case and determine independently 16 whether the state courts would have considered any delay 17 reasonable so as to render the state petition “pending” within 18 the meaning of § 2244(d)(2). 19 98 (2006). Evans v. Chavis, 546 U.S. 189, 197- 20 A delay of six months has been found to be unreasonable 21 because it is longer than the relatively short periods of thirty 22 (30) or sixty (60) days provided by most states for filing 23 appeals. 24 also been found to be unreasonable: one hundred forty-six (146) 25 days between the filing of two trial court petitions, Banjo v. 26 Ayers, 614 F.3d 964, 968-69 (9th Cir. 2010), cert. den., 131 27 S.Ct. 3023 (2011); intervals of eighty-one (81) and ninety-two 28 (92) days between the disposition of a writ at one level and the Evans v. Chavis, 546 U.S. at 201. 20 Shorter delays have 1 filing of the next writ at a higher level, Velasquez v. Kirdland, 2 639 F.3d 964, 968 (9th Cir. 2011); one hundred fifteen (115) and 3 one hundred one (101) days between denial of one petition and the 4 filing of a subsequent petition, Chaffer v. Prosper, 592 F.3d. 5 1046, 1048 (9th Cir. 2010); and unexplained, unjustified periods 6 of ninety-seven (97) and seventy-one (71) days, Culver v. 7 Director of Corrections, 450 F.Supp.2d 1135, 1140 (C.D.Cal. 8 2006). 9 Here, the DCA summarily denied both petitions; thus, the DCA 10 did not expressly determine that any petition was untimely. 11 Petitioner filed the second petition one hundred fifteen (115) 12 days after denial of the previous petition. 13 exceeds the customarily short periods of delay considered 14 reasonable. 15 The delay far Petitioner seeks to distinguish cases that characterize as 16 unreasonable delays in filing that are longer than thirty or 17 sixty days after a disposition of a previous application. 18 Petitioner argues that his own unreasonable delay occurred, if at 19 all, only once, between December 4, 2008, and March 29, 2009. 20 Petitioner contends that a single delay is not sufficient; 21 rather, repetitive delays are required, and his overall progress 22 through exhaustion of state court remedies was not characterized 23 by unreasonable delay. 24 However, reference to the pertinent statute shows that 25 statutory tolling is permitted for the time “during which a 26 properly filed application” for state post-conviction or other 27 collateral review with respect to the pertinent judgment or claim 28 “is pending....” 28 U.S.C. § 2244(d)(2). 21 The statutory scheme 1 is expressly focused on the pendency of each singular 2 application. 3 are concerned with the pendency and timeliness of each 4 application for review. 5 216-23; Evans v. Chavis, 546 U.S. at 191-201. Likewise, case authority reveals that the courts See, e.g., Carey v. Saffold, 536 U.S. at 6 Petitioner argues that he was not filing successive 7 petitions, but rather was simply exhausting a claim concerning 8 the allegedly ineffective assistance of counsel. 9 24.) (Doc. 13, 1:20- Petitioner declares that he mistakenly thought that he 10 needed something more than a “postage stamp denial of his 11 petition before proceeding to the next level,” and he thus re- 12 filed a second time in the DCA. 13 the duplicate petitions in the DCA “might have been unnecessary,” 14 but he disagrees that the petitions were successive because they 15 concerned the same grounds and were not a return to the lower 16 courts for another round of habeas. 17 contends that the second DCA petition was an amendment to his 18 first petition to add a claim based on a recent decision of the 19 United States Supreme Court, In re Cunningham, of which he had 20 become aware. 21 (Id. at 3:3-5.) (Id. at 3.) He admits that He also (Doc. 26, 2:6-14.) To benefit from statutory tolling, a petitioner must 22 adequately justify a substantial delay. 23 Evans v. Chavis, 546 U.S. at 192-93; Waldrip v. Hall, 548 F.3d 24 729, 734. 25 that is substantially delayed will nevertheless be considered on 26 the merits if the petitioner can demonstrate ‘good cause’ for the 27 delay.” 28 Clark, 5 Cal.4th 750, 783 (1993)). 28 U.S.C. § 2244(d)(2); Under California law, a habeas “claim or sub-claim In re Robbins, 18 Cal.4th 770, 805 (1998) (citing In re 22 Petitioner must show 1 particular circumstances, based on allegations of specific facts, 2 sufficient to justify the delay; allegations made in general 3 terms are insufficient. 4 (citing In re Walker, 10 Cal.3d 764, 774 (1974)). 5 measured from the time the petitioner or counsel knew, or 6 reasonably should have known, of the factual information offered 7 in support of the claim and the legal basis for the claim. 8 Robbins, 18 Cal.4th at 787. In re Robbins, 18 Cal.4th at 787-88, 805 The delay is In re 9 Here, Petitioner argues that viewing the totality of his 10 pursuit of one full, single round of state habeas review, results 11 in the conclusion that Petitioner was generally diligent. 12 Further, Petitioner was a lay person and was “somewhat confused” 13 about the proper way to proceed. 14 received the denial of his first DCA petition, he filed another 15 petition based on a mistaken, perceived need to obtain more than 16 a summary denial of his petition. When on December 4, 2008, he (Opp., doc. 13, 3:2, 2-3.) 17 With respect to Petitioner’s reliance on his pro se status, 18 one generally does not have a constitutional right to counsel in 19 non-capital, state post-conviction proceedings or in the course 20 of discretionary direct review. 21 551, 555-57 (1987); Ross v. Moffitt, 417 U.S. 600, 610-11 (1974). 22 Therefore, there is no constitutional right to counsel in non- 23 capital, federal habeas proceedings. 24 425, 429 (9th Cir. 1993). 25 justification for late filing. 26 (1993). Pennsylvania v. Finley, 481 U.S. Bonin v. Vasquez, 999 F.2d Pro se status is not in itself In re Clark, 5 Cal.4th 750, 765 27 Petitioner’s allegations concerning access to library 28 facilities, lack of legal and procedural knowledge, and limited 23 1 access to the prison law library are not sufficient to justify a 2 substantial delay where the petitioner was not wholly prevented 3 by lock-downs or prison employment from using the law library. 4 Evans v. Chavis, 546 U.S. at 201. 5 Petitioner’s allegations concerning lock-downs, 6 overcrowding, and conflicts with Petitioner’s educational 7 programming in prison are general in nature and do not 8 demonstrate that for the entire, extended period of delay between 9 December 4, 2008, and March 29, 2009, Petitioner was prevented 10 from filing a petition. 11 Petitioner concerning lock-downs relates to the period from 12 August 15, 2010, through September 8, 2010; otherwise, he refers 13 only to other, shorter lock-downs. 14 of the law librarian establish that there were methods of access 15 (PLU access or use of the ducat system) which Petitioner did not 16 use, and that Petitioner did have access to the library and to a 17 copy service. 18 facts showing good cause for his long delay in filing the second 19 DCA petition. 20 The specific information given by The more specific allegations In short, Petitioner has not alleged specific With respect to the argument that the second petition was 21 not really successive, the Court takes judicial notice of the 22 docket of the DCA in the first habeas proceeding filed there, 23 case number F055452.4 The docket reflects that no order to show 24 25 26 27 28 4 The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, including undisputed information posted on official web sites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 2010). It is appropriate to take judicial notice of the docket sheet of a California court. White v Martel, 601 F.3d 882, 885 (9th Cir. 2010), cert. denied, 131 S.Ct. 332 (2010). The official website of the 24 1 cause issued in that proceeding. 2 Court, Rule 8.387, the denial order filed on December 4, 2008, 3 was thus final on the day it was issued.5 4 first denial was final prior to the filing of the second petition 5 almost four months later. 6 Pursuant to Cal. Rules of Therefore, the DCA’s With respect whether or not the second petition was 7 successive, Ninth Circuit authority establishes that if a 8 petitioner is attempting to correct deficiencies of a prior 9 petition, the prisoner is appropriately using state court 10 procedures, and habeas review is still pending. 11 whether tolling is appropriate, a court considers whether the 12 subsequent petition is limited to an elaboration of the facts 13 relating to the claims in the first petition. 14 subsequent petition begins a new round of review, and the gap is 15 not tolled. 16 Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). 17 subsequent petition simply attempts to correct the deficiencies 18 in the prior petition, it is construed as part of the previous 19 full round of collateral review. 20 969. 21 will toll the statute during the interval that preceded its 22 filing. 23 pursuant to state law, then the period between the petitions is To determine If not, the Banjo v. Ayers, 614 F.3d at 968-69; Hemmerle v. However, if the Banjo v. Ayers, 614 F.3d at If such a subsequent petition is denied on the merits, it Id. If such a subsequent petition was not timely filed 24 25 26 27 28 California state courts is . 5 Rule 8.387 was formerly Rule 8.386, which was adopted effective January 1, 2008, and was renumbered as Rule 8.387 and amended, in respects not pertinent to the present case, effective January 1, 2009. Pursuant to Cal. Rules of Court, Rule 8.387(b)(1), a decision of the Court of Appeal in a habeas corpus proceeding is generally final in that court thirty (30) days after filing. However, the denial of a petition for writ of habeas corpus without issuance of an order to show cause is final in the Court of Appeal upon filing. Rule 8.387(b)(2)(A). 25 1 2 not tolled. Id. Here, in the first DCA petition, Petitioner raised the 3 following claims: 4 sentence; 2) the imposition of an unauthorized sentence was in 5 breach of the plea agreement and provided grounds for Petitioner 6 to withdraw his plea; 3) the trial court wrongly denied 7 Petitioner’s motion to substitute appointed counsel; and 4) 8 Petitioner’s counsel in the trial court rendered ineffective 9 assistance by failing to communicate with Petitioner, 1) the trial court imposed an unauthorized 10 representing that Petitioner’s case was a loser, and failing to 11 object to or challenge the unauthorized sentence and to correct 12 an error of 1,144 days of time credit at sentencing. 13 (LD 11.) In the second petition filed in the DCA, Petitioner argued 14 that his plea agreement had been breached because his sentence 15 was unconstitutional as it was based on findings made by a 16 preponderance of evidence by the sentencing court instead of 17 beyond a reasonable doubt by a jury pursuant to Apprendi v. New 18 Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 19 (2004); United States v. Booker, 543 U.S. 220; Ring v. Arizona, 20 536 U.S. 584 (2002), and Cunningham v. California, 549 U.S. 270 21 (2007). 22 maliciously conspired with the prosecutor to coerce and pressure 23 Petitioner to enter a plea by fear. 24 (LD 13, 3-4.) He alleged that his counsel had It thus appears that, as Petitioner has admitted, rather 25 than simply add facts to the petition to perfect an earlier 26 claim, Petitioner in fact raised a new, constitutional claim in 27 the second petition. 28 respect to the claim of alleged ineffective assistance of trial Further, he alleged different facts with 26 1 counsel, which changed the basis of the claim from omissions to 2 affirmative, malicious conduct. 3 does not appear to come within the exception, and it thus was a 4 successive petition. 5 in raising the new claim were not so recent as to justify the 6 delay in filing. 7 Accordingly, the second petition Moreover, the cases relied on by Petitioner However, regardless of whether or not the second petition 8 was successive and subject to denial, the delay in filing the 9 second petition was unreasonable and unjustified. Because 10 Petitioner did not justify the delay during the period following 11 the DCA’s denial of his petition on December 4, 2008, until March 12 29, 2009, when he filed his second DCA petition, the interval is 13 not tolled. 14 In summary, the statute of limitations began running on 15 April 16, 2008, and was tolled until December 4, 2008. 16 hundred fourteen (114) days passed from December 5, 2008, through 17 March 28, 2009. 18 days of the limitations period remained. 19 from March 29, 2009, through September 30, 2009, when the 20 California Supreme Court denied the petition for writ of habeas 21 corpus. 22 The statutory period expired two hundred and fifty-one days later 23 on June 8, 2010. 24 July 26, 2010, the petition was time-barred. 25 One At that point, two hundred and fifty-one (251) The statute was tolled The statute thus began to run again on October 1, 2009. C. As Petitioner did not file the petition until Equitable Tolling 26 Petitioner argues that the running of the statute was 27 equitably tolled due to limited access to the law library based 28 on overcrowding, lock-downs, and conflicts with Petitioner’s work 27 1 and education programs. 2 alleges that as a high school drop-out, he was untrained in basic 3 education when he arrived at PVSP; he only recently passed the 4 state’s GED program. 5 law and also reduced his access to the law library because he 6 could not leave his work station during the times he could 7 otherwise utilize the library. 8 granted access to the law library during numerous lock-downs at 9 PVSP. (Opp., doc. 13, 5.) Petitioner also This hindered his skills in learning the (Doc. 26, 4:8-10.) (Id. at 5:22-28.) He was never Petitioner declares that the law 10 librarian “failed to mention that at that very time he stated 11 Petitioner could access the law library, the facility was locked 12 down....” 13 (Id. at 4:26-28.) Petitioner also states that the facts alleged by Respondent 14 and Respondent’s witnesses are outside the record on appeal and 15 constitute grounds to grant an evidentiary hearing, appoint 16 counsel, and permit investigation and refutation of the 17 librarian’s declaration. 18 (Id. at 5.) The one-year limitation period of § 2244 is subject to 19 equitable tolling where the petitioner has been diligent, and 20 extraordinary circumstances, such as the egregious misconduct of 21 counsel, have prevented the petitioner from filing a timely 22 petition. 23 (2010). 24 circumstances were the cause of his untimeliness and that the 25 extraordinary circumstances made it impossible to file a petition 26 on time. 27 required for equitable tolling is reasonable diligence, not 28 “maximum feasible diligence.” Holland v. Florida, – U.S. –, 130 S.Ct. 2549, 2560 The petitioner must show that the extraordinary Ramirez v. Yates, 571 F.3d 993, 997. The diligence Holland v. Florida, 130 S.Ct. at 28 1 2 2565. “[T]he threshold necessary to trigger equitable tolling 3 [under AEDPA] is very high, lest the exceptions swallow the 4 rule.” 5 Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). 6 Spitsyn v. Moore, 345 F.3d 796, 799 (quoting Miranda v. Petitioner bears the burden of alleging facts that would 7 give rise to tolling. 8 2002). Smith v. Duncan, 297 F.3d 809 (9th Cir. 9 Here, Petitioner proceeded pro se. 10 status is not an extraordinary circumstance. 11 592 F.3d 1046, 1049. 12 ignorance of the law does not, in itself, warrant equitable 13 tolling. 14 2006). 15 Petitioner’s pro se Chaffer v. Prosper, A pro se petitioner's confusion or Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. Limited access to a law library and copy machine is a 16 routine restriction of prison life and thus is not an 17 extraordinary circumstance. 18 Petitioner’s allegations are general, and Petitioner has not 19 shown how any limitation of access to the law library actually 20 made it impossible for him to file a petition raising essentially 21 the same claims that he had raised before. 22 showing differs materially from one that establishes that lack of 23 access to specific materials precluded timely filing. 24 Petitioner’s filing numerous petitions in the state courts during 25 his incarceration is inconsistent with his allegations of 26 impossibility. 27 28 Ramirez v. Yates, 571 F.3d at 993. Thus, Petitioner’s Further, Cf., Ramirez v. Yates, 571 F.3d at 998. Accordingly, the Court concludes that Petitioner has not shown that the statute should be equitably tolled. 29 1 IV. 2 Petitioner requests an evidentiary hearing to investigate Petitioner’s Request for an Evidentiary Hearing 3 and refute the allegations of the law librarian concerning 4 equitable tolling. 5 In considering a request for an evidentiary hearing, the 6 Court must first determine whether a factual basis exists in the 7 record to support the petitioner’s claim. 8 F.3d 1075, 1078 (9th Cir. 1999). 9 with particularity facts, which if proven, would entitle him to Baja v. Ducharme, 187 The petitioner should state 10 relief. 11 Baja v. Ducharme, 187 F.3d at 1079. Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005); 12 As the foregoing analysis reflects, Petitioner did not 13 allege or document specific facts that, if proven, would entitle 14 him to relief on the basis of equitable tolling. 15 not demonstrated or suggested extraordinary circumstances beyond 16 his control. 17 by specific facts reflected in a declaration based on 18 institutional records. 19 Petitioner has He alleged only generalities that are contradicted Petitioner was granted leave to file a sur-reply, and the 20 parties were given an ample opportunity to develop the pertinent 21 facts. 22 specific facts pertained to events within his own knowledge, such 23 as his specific attempts to gain access to the law library and to 24 use other research sources, and the precise reasons why allegedly 25 limited access to research materials precluded timely filing. 26 Although Petitioner filed numerous petitions in the state courts 27 during the pertinent time and has had an opportunity to develop 28 the facts, he has not set forth specific facts that would The matters as to which Petitioner should have submitted 30 1 equitably toll the statute. 2 Petitioner’s request for an evidentiary hearing. Accordingly, the Court will deny 3 V. 4 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 5 appealability, an appeal may not be taken to the Court of Appeals 6 from the final order in a habeas proceeding in which the 7 detention complained of arises out of process issued by a state 8 court. 9 U.S. 322, 336 (2003). 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 10 only if the applicant makes a substantial showing of the denial 11 of a constitutional right. 12 petitioner must show that reasonable jurists could debate whether 13 the petition should have been resolved in a different manner or 14 that the issues presented were adequate to deserve encouragement 15 to proceed further. 16 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 17 certificate should issue if the Petitioner shows that jurists of 18 reason would find it debatable whether the petition states a 19 valid claim of the denial of a constitutional right and that 20 jurists of reason would find it debatable whether the district 21 court was correct in any procedural ruling. 22 529 U.S. 473, 483-84 (2000). 23 § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 24 the claims in the habeas petition, generally assesses their 25 merits, and determines whether the resolution was debatable among 26 jurists of reason or wrong. 27 applicant to show more than an absence of frivolity or the 28 existence of mere good faith; however, it is not necessary for an Id. 31 It is necessary for an 1 applicant to show that the appeal will succeed. 2 Cockrell, 537 U.S. at 338. Miller-El v. 3 A district court must issue or deny a certificate of 4 appealability when it enters a final order adverse to the 5 applicant. 6 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 7 debate whether the petition should have been resolved in a 8 different manner. 9 of the denial of a constitutional right. 10 11 Petitioner has not made a substantial showing Accordingly, the Court will decline to issue a certificate of appealability. 12 VI. 13 In summary, Respondent has established that the petition was 14 Disposition untimely and should be dismissed. 15 Accordingly, it is ORDERED that: 16 1) Respondent’s motion to dismiss the petition is GRANTED; 2) Petitioner’s motion for an evidentiary hearing 17 and 18 19 concerning the facts pertinent to equitable tolling is DENIED; 20 and 21 3) The petition is DISMISSED as untimely filed; and 22 4) The Clerk shall ENTER judgment for Respondent; and 23 5) The Court DECLINES to issue a certificate of 24 appealability. 25 IT IS SO ORDERED. 26 Dated: ie14hj September 6, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 27 28 32

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