Howard v. Yates

Filing 18

FINDINGS and RECOMMENDATIONS recommending that 13 Respondent's Motion to Dismiss the Petition be GRANTED; the Petition be DISMISSED as Untimely; the Court DECLINE to Issue a Certificate of Appealability; and the Clerk be DIRECTED to Close the Case re 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Sheila K. Oberto on 7/8/2011. Referred to Judge Ishii Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EVERT KEITH HOWARD,

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Petitioner,

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v.
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JAMES YATES, Warden,
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Respondent.
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1:10-cv—02318-AWI-SKO-HC
FINDINGS AND RECOMMENDATIONS RE:
RESPONDENT’S MOTION TO DISMISS
THE PETITION (DOCS. 13, 1)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION AS UNTIMELY
(DOC. 1), DECLINE TO ISSUE A
CERTIFICATE OF APPEALABILITY,
AND DIRECT THE CLERK TO CLOSE
THE CASE

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OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a state prisoner proceeding pro se with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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The matter has been referred to the Magistrate Judge pursuant to
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28 U.S.C.§ 636(b)(1) and Local Rules 302 and 304.

Pending before

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the Court is the Respondent’s motion to dismiss the petition as
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untimely, which was filed on February 14, 2011.

Paper documents

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were lodged in support of the motion.

Petitioner filed an

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opposition to the motion on April 6, 2011, but no reply was
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filed.
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I.

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Respondent has filed a motion to dismiss the petition on the

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ground that Petitioner filed his petition outside of the one-year

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limitation period provided for by 28 U.S.C. § 2244(d)(1).

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Proceeding by a Motion to Dismiss

Rule 4 of the Rules Governing Section 2254 Cases in the

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United States District Courts (Habeas Rules) allows a district

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court to dismiss a petition if it “plainly appears from the face

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of the petition and any exhibits annexed to it that the

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petitioner is not entitled to relief in the district court....”

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The Ninth Circuit has allowed respondents to file motions to

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dismiss pursuant to Rule 4 instead of answers if the motion to

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dismiss attacks the pleadings by claiming that the petitioner has

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failed to exhaust state remedies or has violated the state’s

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procedural rules.

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420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss

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a petition for failure to exhaust state remedies); White v.

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Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to

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review a motion to dismiss for state procedural default); Hillery

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v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).

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Thus, a respondent may file a motion to dismiss after the Court

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orders the respondent to respond, and the Court should use Rule 4

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standards to review a motion to dismiss filed before a formal

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answer.

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See, e.g., O’Bremski v. Maass, 915 F.2d 418,

See, Hillery, 533 F. Supp. at 1194 & n.12.

In this case, Respondent's motion to dismiss addresses the

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untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1).

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The material facts pertinent to the motion are mainly to be found

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in copies of the official records of state judicial proceedings

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which have been provided by Respondent and Petitioner, and as to
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1

which there is no factual dispute.

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filed a formal answer, and because Respondent's motion to dismiss

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is similar in procedural standing to a motion to dismiss for

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failure to exhaust state remedies or for state procedural

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default, the Court will review Respondent’s motion to dismiss

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pursuant to its authority under Rule 4.

Because Respondent has not

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II.

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Petitioner alleged in the petition that he was an inmate of

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Background

the Pleasant Valley State Prison (PVSP) located within the

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Eastern District of California, serving a sentence of fifteen

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(15) years to life imposed by the Fresno County Superior Court on

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December 1, 2006, upon Petitioner’s conviction of second degree

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murder in violation of Cal. Pen. Code § 187.

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Petitioner challenges his conviction, claiming 1) his trial

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counsel rendered ineffective assistance in violation of

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Petitioner’s Sixth and Fourteenth Amendment rights by permitting

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improper instructions concerning malice, which resulted in a

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lowering of the prosecutor’s burden of proof; and 2) the trial

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court improperly instructed the jury with respect to malice and

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general intent (CALJIC nos. 1.22 and 3.30).

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Petitioner seeks a new trial, or, in the alternative, an

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evidentiary hearing to investigate his claim that trial counsel

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was ineffective.

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(Pet. 1.)

(Id. at 5, 7.)

(Id. at 15.)

The pertinent state court proceedings are briefly summarized
below.

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On December 1, 2006, Petitioner was sentenced to an

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indeterminate term of fifteen (15) years to life pursuant to

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Petitioner’s conviction of second degree murder on June 8, 2006.
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1

(L.D. 1.)1

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In an opinion filed on February 29, 2008, in case number

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F051859, the Court of Appeal of the State of California, Fifth

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Appellate District (DCA) affirmed the judgment.

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(L.D. 2.)

A petition for review filed on behalf of Petitioner on or

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about April 10, 2008, in case number S162499 was summarily denied

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by the California Supreme Court on June 11, 2008.

(L.D. 4.)

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On January 29, 2009,2 Petitioner filed a petition for writ

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of habeas corpus in the Fresno County Superior Court, which was

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denied in a decision filed on March 4, 2009.

(L.D. 5-6.)

On May 22, 2009,3 Petitioner filed a petition for writ of

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habeas corpus in the DCA, which was summarily denied on July 23,

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2009.

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(L.D. 7-8.)

On or about November 10, 2009, Petitioner filed a petition

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for writ of habeas corpus in the California Supreme Court.

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9.)

(L.D.

Next to the signature on page six of the petition form

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“L.D.” refers to lodged documents submitted by Respondent in support
of the motion to dismiss.
2
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)). It has been held that the
date the petition is signed may be inferred to be the earliest possible date
an inmate could have submitted his petition to prison authorities for filing
under the mailbox rule. Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir.
2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408 (2005).
Here, the signature on the petition filed in the Superior Court is not
accompanied by a date, and the petition is otherwise undated. No post-marked
envelope or proof of service is before the Court. (L.D. 5.) Thus, the Court
considers the date the petition was marked filed by the Superior Court as the
date of filing. (L.D. 5, 1.)
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Again, the signature page of the petition lacks a date, and there is no
corresponding proof of service or post-marked envelope before the Court.
Thus, the Court considers the petition to have been filed as of the date of
filing as marked by the DCA. (LD 7, 1. )

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1

appears the date of November 10, 2009.

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the date of signing to give Petitioner the benefit of the mailbox

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rule.

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November 10, 2009, to be the earliest possible date that

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Petitioner could have submitted his petition to the prison

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authorities for mailing.

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(Mot., 5:24-28.)

Respondent suggests using

The Court considers the date of signing,

On May 12, 2010, the California Supreme Court summarily
denied the petition.

(L.D. 10.)

The petition filed in this action was signed by Petitioner
on November 18, 2010, and provides as follows:
I declare (or certify, verify, or state) under
penalty of perjury that the foregoing is true and
correct and that this Petition for Writ of Habeas
Corpus was placed in the prison mailing system on
11/18/10 (month, date, year).

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Thus, applying the mailbox rule, the court concludes that

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Petitioner filed the petition before the Court on November 18,

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2010.

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III.

The Statute of Limitations
A.

Legal Standards

On April 24, 1996, Congress enacted the Antiterrorism and

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Effective Death Penalty Act of 1996 (AEDPA).

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to all petitions for writ of habeas corpus filed after the

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enactment of the AEDPA.

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(1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en

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banc), cert. denied, 118 S.Ct. 586 (1997).

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original petition for writ of habeas corpus on November 18, 2010.

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Thus, the AEDPA applies to the petition.

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The AEDPA applies

Lindh v. Murphy, 521 U.S. 320, 327

Petitioner filed his

The AEDPA provides a one-year period of limitation in which
a petitioner must file a petition for writ of habeas corpus.
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1

U.S.C. § 2244(d)(1).

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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 –

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(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;

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filing an
violation
States is
filing by

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(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;

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(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

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(D) the date on which the factual predicate
of the claim or claims presented could have been
discovered through the exercise of due diligence.

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(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.

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28 U.S.C. § 2244(d).
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B.
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Commencement of the Running of the Limitation
Period

In the present case, no circumstances appear to warrant the

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application of § 2244(d)(1)(B) through (D).

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determine the date on which the judgment became final within the

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meaning of § 2244(d)(1)(A).

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Thus, the Court will

Under § 2244(d)(1)(A), the “judgment” refers to the sentence

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imposed on the petitioner.

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57 (2007).

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December 1, 2006.

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///

Burton v. Stewart, 549 U.S. 147, 156-

The last sentence was imposed on Petitioner on

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Under § 2244(d)(1)(A), a judgment becomes final either upon

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the conclusion of direct review or the expiration of the time for

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seeking such review in the highest court from which review could

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be sought.

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2001).

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upon either 1) the conclusion of all direct criminal appeals in

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the state court system, followed by either the completion or

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denial of certiorari proceedings before the United States Supreme

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Court; or 2) if certiorari was not sought, then by the conclusion

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of all direct criminal appeals in the state court system followed

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by the expiration of the time permitted for filing a petition for

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writ of certiorari.

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Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525

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U.S. 1187 (1999)).

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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.

The Court will apply Fed. R. Civ. P. 6(a) in calculating the

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pertinent time periods.

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Hall, 548 F.3d 729, 735 n.2 (9th Cir. 2008); Patterson v.

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Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001).

Fed. R. Civ. P. 6(a); see, Waldrip v.

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Here, Petitioner’s direct review concluded when his petition

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for review was denied by the California Supreme Court on June 11,

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2008.

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later, when the period in which Petitioner could petition for a

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writ of certiorari from the United States Supreme Court expired.

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Supreme Court Rule 13; Bowen v. Roe, 188 F.3d 1157, 1159 (9th

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Cir. 1999).

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concluded on September 9, 2008.

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The time for seeking further review expired ninety days

The ninety-day period began on June 12, 2008, and

Thus, the limitation period began to run on September 10,
2008, and concluded one year later on September 9, 2009.
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28 U.S.C. § 2244(d)(1); Fed. R. Civ. P. 6(a).
Because the petition in the instant case was not filed until

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November 18, 2010, the petition appears on its face to have been

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filed outside the applicable one-year limitation period.

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C.

Statutory Tolling

Title 28 U.S.C. § 2244(d)(2) states that the “time during

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which a properly filed application for State post-conviction or

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other collateral review with respect to the pertinent judgment or

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claim is pending shall not be counted toward” the one-year

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limitation period.

28 U.S.C. § 2244(d)(2).

Once a petitioner is on notice that his habeas petition may

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be subject to dismissal based on the statute of limitations, he

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has the burden of demonstrating that the limitations period was

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sufficiently tolled by providing the pertinent facts, such as

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dates of filing and denial.

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1019 (9th Cir. 2009) (citing Smith v. Duncan, 297 F.3d 809, 814-

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15 (9th Cir. 2002), abrogation on other grounds recognized by

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Moreno v. Harrison, 245 Fed.Appx. 606 (9th Cir. 2007)).

Zepeda v. Walker, 581 F.3d 1013,

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In Carey v. Saffold, 536 U.S. 214 (2002), the Court held

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that an application is “pending” until it “has achieved final

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resolution through the State's post-conviction procedures.”

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U.S. 220.

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until a state petitioner “completes a full round of collateral

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review.”

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delay, an application for post conviction relief is pending not

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only during its pendency before a court, but also during the

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“intervals between a lower court decision and a filing of a new

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petition in a higher court” and until the California Supreme

536

An application does not achieve the requisite finality

Id. at 219-20.

Accordingly, in the absence of undue

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1

Court denies review.

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1048 (9th Cir. 2003).

3

Id. at 223; Biggs v. Duncan, 339 F.3d 1045,

However, when one full round up the ladder of the state

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court system is complete and the claims in question are

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exhausted, a new application in a lower court begins a new round

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of collateral review.

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example, the statute of limitations is not tolled from the time a

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final decision is issued on direct state appeal and the time the

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first state collateral challenge is filed because there is no

Biggs v. Duncan, 339 F.3d at 1048.

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case “pending” during that interval.

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For

1003, 1006 (9th Cir. 1999).

12

Nino v. Galaza, 183 F.3d

Here, Petitioner’s first state collateral petition was filed

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in the trial court on January 29, 2009, and remained pending

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until March 4, 2009, when it was denied.

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the limitation period ran after the commencement of the period on

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September 10, 2008, and until the filing of the trial court

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petition on January 29, 2009.

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for 35 days during the pendency of the petition from January 29,

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2009, through and including March 4, 2009, the date the petition

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was denied.

A total of 141 days of

Thereafter, the statute was tolled

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Petitioner’s next petition for collateral relief was filed

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on May 22, 2009, in the DCA, and remained pending until summary

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denial on July 23, 2009.

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Respondent contends that the delay of 79 days before filing

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the DCA petition was unreasonable, and thus Petitioner is not

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entitled to tolling for the interval between denial by the trial

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court and filing the petition in the DCA.

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///
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1

State time limits are conditions to filing which render a

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petition not properly filed.

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417 (2005).

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conviction relief as untimely, the petition is not a “properly

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filed” application for post-conviction or collateral review

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within the meaning of § 2244(d)(2), and thus it does not toll the

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running of the limitation period.

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408, 417 (2005).

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

When a state court rejects a petition for post-

Pace v. DiGuglielmo, 544 U.S.

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In California, instead of filing an appeal from a lower

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court’s denial of a habeas petition, a petitioner may file serial

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original petitions in each higher court.

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concrete time limits on the filing of petitions for collateral

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relief; rather, the timeliness of each filing is determined

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according to a “reasonableness” standard.

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U.S. at 221-22.

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California Supreme Court about the meaning of the term

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“reasonable time” in a specific factual context, or a clear

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indication that a filing was timely or untimely, a federal court

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hearing a subsequent federal habeas petition must examine all

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relevant circumstances concerning the delay in each case and

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determine independently whether the state courts would have

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considered any delay reasonable so as to render the state

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petition “pending” within the meaning of § 2244(d)(2).

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Chavis, 546 U.S. 189, 197-98 (2006).

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Further, there are no

Carey v. Saffold, 536

Absent a clear direction or explanation from the

Here, the DCA summarily denied the petition.

Evans v.

Thus, there is

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no clear indication that the DCA considered Petitioner’s petition

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timely or untimely.

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However, the Supreme Court has indicated that in the absence
10

1

of contrary information from California, the federal courts will

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assume that California’s indeterminate reasonableness standard is

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applied in a manner that avoids leading to filing delays

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substantially longer than those in states with determinate

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timeliness rules.

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Delays in filing will thus be compared with the relatively short

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periods of time, thirty (30) to sixty (60) days, that most states

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provide for filing an appeal.

See, Evans v. Chavis, 546 U.S. 189, 199-200.

Evans, 546 U.S. at 201.

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A delay of six months has been found to be unreasonable

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because it is longer than the relatively short periods of thirty

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(30) or sixty (60) days provided by most states for filing

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appeals.

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one hundred fifteen (115) and one hundred one (101) days between

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denial of one petition and the filing of a subsequent petition

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have been held to be excessive.

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1046, 1048 (9th Cir. 2010).

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964 (9th Cir. 2011), unexplained delays of eighty (80) and

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ninety-one (91) days in filing habeas petitions were held to be

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unreasonable, and the petitioner was not entitled to tolling for

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either the interval between filings or the time during which an

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untimely petition itself was pending.

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periods of ninety-seven (97) and seventy-one (71) days have also

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been found to be unreasonable.

24

Corrections, 450 F.Supp.2d 1135, 1140 (C.D.Cal. 2006).

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Evans v. Chavis, 546 U.S. 189, 201 (2006).

Delays of

Chaffer v. Prosper, 592 F.3d.

In Velasquez v. Kirkland, 639 F.3d

Unexplained, unjustified

Culver v. Director of

Here, Petitioner’s DCA petition was filed on the seventy-

26

ninth (79th) day after the trial court petition was denied.

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interval is approximately several weeks beyond a sixty-day delay,

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which is at the outer edge of the short, reasonable periods noted
11

This

1

by the Court in Evans v. Chavis, 546 U.S. 189, 201.

2

one day short of the delay found unreasonable in Velasquez v.

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Kirkland, 639 F.3d 964 (9th Cir. 2011).

4

the delay was unreasonable.

5

It is just

The Court concludes that

Petitioner argues that the running of the limitations period

6

was statutorily tolled because in the past few years, changes in

7

the prison system have resulted in restricted access to the law

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library.

9

(Opp., doc. 17, 5.)

Petitioner describes the access as “extremely limited.”
Several years ago the access changed from

10

all day to one-half day because of overcrowding.

11

years, rolling lock-downs, involving no programming for one-half

12

day every other day, have occurred with unspecified frequency due

13

to budget shortfalls.

14

can be limited to just a couple of hours a week, which is further

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limited by lock-downs and the availability of only five (5)

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computer terminals during the library’s open hours on Mondays

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through Fridays. (Id.)

18

In the past two

Petitioner alleges that the available time

To benefit from statutory tolling, a petitioner must

19

adequately justify a substantial delay.

20

Evans v. Chavis, 546 U.S. 189, 192-93 (2006); Waldrip v. Hall,

21

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

22

habeas “claim or sub-claim that is substantially delayed will

23

nevertheless be considered on the merits if the petitioner can

24

demonstrate ‘good cause’ for the delay.”

25

Cal.4th 770, 805 (1998) (citing In re Clark, 5 Cal.4th 750, 783

26

(1993)).

27

allegations of specific facts, sufficient to justify the delay;

28

allegations made in general terms are insufficient.

28 U.S.C. § 2244(d)(2);

Under California law, a

In re Robbins, 18

Petitioner must show particular circumstances, based on

12

In re

1

Robbins, 18 Cal.4th at 787-88, 805 (citing In re Walker, 10

2

Cal.3d 764, 774 (1974)).

3

petitioner or counsel knew, or reasonably should have known, of

4

the factual information offered in support of the claim and the

5

legal basis for the claim.

6

The delay is measured from the time the

In re Robbins, 18 Cal.4th 770, 787.

Petitioner has not specifically alleged the frequency of the

7

lock-downs, and the precise limit on library access is not clear

8

because he stated only that access “can be limited” to just a

9

couple of hours weekly.

(Opp., doc. 17, 5.)

Petitioner has not

10

provided facts concerning the availability of any alternate aids

11

to legal research, such as the assistance of other inmates or

12

copying service.

13

has not established a lack of library access or inability to

14

complete any needed research at any specific time.

15

or procedural knowledge combined with limited access to the

16

prison law library are not sufficient to justify a substantial

17

delay where the petitioner was not wholly prevented by lock-downs

18

or prison employment from using the law library.

19

Chavis, 546 U.S. 189, 201 (2006.)

20

Based on the facts alleged by Petitioner, he

Lack of legal

Evans v.

Further, Petitioner has not shown how any limitation on

21

access to the library actually caused the delay in filing the

22

petition.

23

legal arguments that were presented in the trial court petition

24

were repeated in the DCA petition. (L.D. 5, 7.)

25

raised concerned the alleged failings of trial counsel.

26

Petitioner has not shown that there was any necessity for delay

27

in filing a petition that was strikingly similar to the

28

previously submitted petition.

The Court notes that the essential allegations and

The issues

Cf., Waldrip v. Hall, 548 F.3d
13

1
2

729, 736-37 (9th Cir. 2008).
Further, one generally does not have a constitutional right

3

to counsel in non-capital, state post-conviction proceedings or

4

in the course of discretionary direct review.

5

Finley, 481 U.S. 551, 555-57 (1987); Ross v. Moffitt, 417 U.S.

6

600, 610-11 (1974).

7

to counsel in non-capital, federal habeas proceedings.

8

Vasquez, 999 F.2d 425, 429 (9th Cir. 1993).

9

is not in itself a justification for late filing.

Pennsylvania v.

Therefore, there is no constitutional right
Bonin v.

Thus, pro se status
In re Clark, 5

10

Cal.4th 750, 765 (1993).

11

his pro se status, he has failed to show how his pro se status

12

justified his delay.

13

To the extent that Petitioner relies on

The Court concludes that Petitioner’s delay in filing his

14

DCA petition until the seventy-ninth day after denial of his

15

trial court petition was unreasonable.

16

under the California reasonableness standard.

17

should not be tolled for either the time during which the DCA

18

actually considered the petitioner’s habeas petition or the time

19

between the denial of the previous petition and the filing of the

20

DCA petition.

21

2010), cert. denied, 131 S.Ct. 332 (2010); Bonner v. Carey, 425

22

F.3d 1145, 1149 (9th Cir. 2005), amended by Bonner v. Carey, 439

23

U.S. 993 (9th Cir. 2009), cert. denied, 549 U.S. 856 (2006).

The petition was untimely
Thus, the statute

White v. Martel, 601 F.3d 882, 883-84 (9th Cir.

24

Therefore, in addition to the 141 days that ran before the

25

filing of the Superior Court petition on September 10, 2008, an

26

additional 78 days ran between the denial of the trial court

27

petition on March 4, 2009, and the filing of the DCA petition on

28

May 22, 2009, and an additional 61 days ran during the time that
14

1

the untimely DCA petition was pending before the DCA until its

2

denial on July 23, 2009.

3

ran by the date the DCA petition was denied on July 23, 2009.

4

Thus, 280 days of the limitation period

Respondent argues that the statute should not be tolled for

5

the delay of 110 days after the DCA’s denial of the petition on

6

July 23, 2009, until the filing of the petition in the California

7

Supreme Court on November 10, 2009.

8

delay.

9

short delays of thirty (30) or sixty (60) days considered

The Court counts 109 days of

In either case, the delay far exceeded the relatively

10

reasonable in light of the practices of most states.

11

concludes that the delay of 109 days was unreasonable.

12

The Court

Although Petitioner argues that the delay was justified by

13

the limitations on law library access, the foregoing analysis

14

demonstrates that Petitioner did not show that a limitation on

15

law library access precluded him from filing a timely petition.

16

The Court notes that with the exception of one attachment,

17

consisting of the Superior Court’s order of denial dated March 4,

18

2009, the petition filed in the California Supreme Court was

19

virtually identical to the petition filed in the DCA.

20

Petitioner further argues that the delay was reasonable

21

because he took time to correspond with the DCA concerning the

22

petition that he had filed there, in which he had alleged

23

inadequate assistance of counsel.

24

in the DCA on May 22, 2009, the Clerk of the DCA wrote

25

Petitioner’s trial counsel on May 29, 2009, notifying him that

26

Petitioner had raised an issue concerning his representation in

27

the Superior Court, and granting counsel leave to file an

28

informal response and declaration in the habeas proceeding to
15

After the petition was filed

1

respond to Petitioner’s allegations of ineffective

2

representation.

3

any assistance that would be offered, the Clerk stated:

4

(Doc. 17, 8.)

After expressing appreciation for

Without your assistance, it may be necessary to
order a hearing before the superior court.

5
(Id. at 9.)

The letter reflects that a copy was sent to

6
Petitioner, and that counsel was instructed to serve any response
7
only on the Court and Petitioner.

(Id. at 8.)

The petition was

8
denied by the DCA on July 23, 2009.
9
The DCA’s docket reflects that on August 13, 2009, a letter
10
dated August 3, 2009, was received from Petitioner.

The entry

11
states:
12
13

Letter dated 8/3/09 from petnr Howard re:
Denial of motion and no response received from
former attorney (W1)

14
On August 21, 2009, the clerk of the DCA sent to Petitioner
15
a letter stating the following:
16
17
18
19
20
21
22
23

The court has authorized the following response
to your inquiry dated August 3, 2009, as follows:
This court did not receive any response from trial
counsel.
This court’s letter sent on May 29, 2009, only
stated that without counsel’s response, “it may
be necessary to order a hearing before the superior
court.” Thus, the letter did not require a hearing
even if counsel did not respond.
(Id. at 7.)
Petitioner contends that when he received the DCA’s order

24

denying his habeas petition on July 23, 2009, he had not been

25

apprised of his counsel's response to the DCA’s letter inviting

26

input from counsel on the ineffective assistance claim.

27

Petitioner argues that it was reasonable to seek clarification

28

from the DCA to see if his counsel had, in fact, responded.
16

1

However, as a party to the habeas proceeding in the DCA,

2

Petitioner would have been served with any input his counsel had

3

submitted in the action.

4

instructed by the DCA to send any informal response and

5

declaration only to the DCA and to the Petitioner; the DCA would

6

treat it as sealed.

7

for Petitioner to expect that any matter would have been

8

submitted by counsel without having been served on him.

9

Indeed, counsel had been specifically

(Doc. 17, 8.)

Thus, it was not reasonable

Petitioner argues that he had a reasonable expectation that

10

the DCA would hold an evidentiary hearing if counsel did not

11

cooperate with the court by submitting a declaration in response

12

to the DCA’s invitation.

13

reflects, the letter sent to counsel states only that it might be

14

necessary to order a hearing before the Superior Court if counsel

15

did not respond to the letter.

16

possibility of proceedings for factual development in the trial

17

court; it did not indicate that such proceedings were necessary

18

or even likely.

However, as the DCA’s correspondence

Thus, the letter only raised a

19

Petitioner argues that he could not proceed with another

20

writ to the California Supreme Court when his issues had not been

21

fully resolved at the DCA level.

22

was denied by the denial order of July 23, 2009; the docket

23

expressly reflects that as of that date, the case was complete.

24

(L.D. 8, 1.)

25

However, the entire petition

Petitioner argues that his letter is reasonably described as

26

a motion for reconsideration and/or clarification, which was

27

denied on August 21, 2009 – the date of the letter sent from the

28

DCA clerk in response to Petitioner’s letter.
17

The Court does not

1

have a copy of the document sent to the DCA by Petitioner that

2

was dated August 3, 2009, which the DCA docket reflects was

3

received on August 13, 2009.

4

himself describes it as a “letter.”

5

DCA’s docket reflects that the document was received on August

6

13, 2009, and describes it as follows:

7
8
9
10

(L.D. 8, 1.)

However, Petitioner

(Opp., doc. 17, 4.)

The

Letter dated 8/3/09 from petnr Howard re: Denial of
motion and no response received from former attorney
(W1)
(Id.)
The DCA’s response to Petitioner’s letter was described in

11

the docket as a “Letter,” and it did not purport to reconsider a

12

ruling or issue a decision or disposition. It instead explained

13

that no response had been received from trial counsel, and the

14

court’s previous letter to counsel had only stated that it might

15

be necessary to order a hearing and emphasized that the court’s

16

previous letter inviting counsel to respond had not required a

17

hearing if counsel failed to respond.

18

letter was from the clerk, and not from a justice or panel of

19

justices.

20

reasonably could have been considered, to have been a petition

21

for rehearing.

22

The DCA’s responsive

It thus does not appear that it was considered, or

The Court concludes that the delay of 109 days between July

23

23, 2009, when the DCA petition was denied, until the filing of

24

the petition in the California Supreme Court on November 10,

25

2009, was unjustified and was unreasonable.

26

time interval after the DCA’s denial of the petition and before

27

the filing of the petition in the Supreme Court is not tolled.

28

The final eighty-five (85) days remaining in the limitation
18

Accordingly, the

1

period expired on October 16, 2009, long before Petitioner filed

2

a petition in the California Supreme Court on November 10, 2009.

3

The Court further notes that if the correspondence

4

concerning counsel’s input in the DCA were considered to be

5

adequate justification for the delay in filing a petition in the

6

California Supreme Court, then the statute would be tolled from

7

July 24, 2009, the first day after the DCA’s denial, for a month

8

(comprised of the time after the denial until the date on which

9

the DCA’s letter of August 21, 2009, would have been served by

10
11

mail on Petitioner), or through August 24, 2009.
Under such an assumption, thirty-two (32) days of the

12

limitation period would be tolled.

13

in the California Supreme Court would thus have extended from

14

August 25, 2009, through November 10, 2009, for a total of

15

seventy-seven (77) days.

16

unreasonable, and the petition filed in the Supreme Court was

17

untimely.

18

as well as the period of pendency of the petition in the

19

California Supreme Court would not be tolled.

20

The period of delay in filing

This length of delay is also

Thus, the interval before the filing of the petition

Even if the limitation period were tolled not only during

21

the interval between the DCA’s denial and the filing of a

22

petition in California Supreme Court, but also during the period

23

in which the petition was actually pending before the California

24

Supreme Court, the limitation period would have run before

25

Petitioner filed his petition here.

26

Court denied the petition on May 12, 2010, a total of 189 days

27

passed before Petitioner filed his petition here on November 18,

28

2010.

After the California Supreme

Two hundred eighty (280) days had already passed before
19

1

the petition was filed in the DCA.

2

was untimely.

3
4

D.

Thus, Petitioner’s petition

Equitable Tolling

It is unclear whether Petitioner is arguing that the

5

petition was equitably tolled.

6

Court will consider under the rubric of equitable tolling the

7

justifications that Petitioner offers for the delay.

8
9

In an abundance of caution, the

The one-year limitation period of § 2244 is subject to
equitable tolling where the petitioner has been diligent, and

10

extraordinary circumstances, such as the egregious misconduct of

11

counsel, have prevented the petitioner from filing a timely

12

petition.

13

(2010).

14

circumstances were the cause of his untimeliness and that the

15

extraordinary circumstances made it impossible to file a petition

16

on time.

17

The diligence required for equitable tolling is reasonable

18

diligence, not “maximum feasible diligence.”

19

130 S.Ct. at 2565.

20

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 (9th Cir. 2009).

Holland v. Florida,

“[T]he threshold necessary to trigger equitable tolling

21

[under AEDPA] is very high, lest the exceptions swallow the

22

rule.”

23

Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)).

Spitsyn v. Moore, 345 F.3d 796, 799 (quoting Miranda v.

24

Here, Petitioner’s pro se status and the limitations on

25

access to the law library are not sufficient to warrant equitable

26

tolling.

27

circumstance.

28

2010).

Petitioner’s pro se status is not an extraordinary
Chaffer v. Prosper, 592 U.S. 1046, 1049 (9th Cir.

A pro se petitioner's confusion or ignorance of the law
20

1

is not alone a circumstance warranting equitable tolling.

2

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

3

Likewise, limitations on law library access and research

4

materials are not extraordinary, but rather are normal conditions

5

of prison life.

6

Chaffer v. Prosper, 592 F.3d at 1049.

Further, Petitioner has not shown how any specific instance

7

of inadequacy of access or materials caused him to be unable to

8

file a timely petition.

9

Petitioner has not shown that the limitation period was equitably

10

tolled.

11

Accordingly, the Court concludes that

dismissed as untimely.

It will, therefore, be recommended that the petition be

12

IV.

13

Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

14

appealability, an appeal may not be taken to the Court of Appeals

15

from the final order in a habeas proceeding in which the

16

detention complained of arises out of process issued by a state

17

court.

18

U.S. 322, 336 (2003).

19

only if the applicant makes a substantial showing of the denial

20

of a constitutional right.

21

petitioner must show that reasonable jurists could debate whether

22

the petition should have been resolved in a different manner or

23

that the issues presented were adequate to deserve encouragement

24

to proceed further.

25

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

26

certificate should issue if the Petitioner shows that jurists of

27

reason would find it debatable whether the petition states a

28

valid claim of the denial of a constitutional right and that

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue

§ 2253(c)(2).

Under this standard, a

Miller-El v. Cockrell, 537 U.S. at 336

21

A

1

jurists of reason would find it debatable whether the district

2

court was correct in any procedural ruling.

3

529 U.S. 473, 483-84 (2000).

4

Slack v. McDaniel,

In determining this issue, a court conducts an overview of

5

the claims in the habeas petition, generally assesses their

6

merits, and determines whether the resolution was debatable among

7

jurists of reason or wrong.

8

applicant to show more than an absence of frivolity or the

9

existence of mere good faith; however, it is not necessary for an

Id.

It is necessary for an

10

applicant to show that the appeal will succeed.

11

Cockrell, 537 U.S. at 338.

Miller-El v.

12

A district court must issue or deny a certificate of

13

appealability when it enters a final order adverse to the

14

applicant.

15

Here, it does not appear that reasonable jurists could debate

16

whether the petition should have been resolved in a different

17

manner.

18

denial of a constitutional right.

19
20

Rule 11(a) of the Rules Governing Section 2254 Cases.

Petitioner has not made a substantial showing of the

Accordingly, it will be recommended that the Court decline
to issue a certificate of appealability.

21

V.

22

Accordingly, it is RECOMMENDED that:

23

1)

Respondent’s motion to dismiss the petition be GRANTED;

25

2)

The petition be DISMISSED as untimely; and

26

3)

The Court DECLINE to issue a certificate of

24

27
28

Recommendations

and

appealability; and
4)

The Clerk be DIRECTED to close the case.
22

1

These findings and recommendations are submitted to the

2

United States District Court Judge assigned to the case, pursuant

3

to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of

4

the Local Rules of Practice for the United States District Court,

5

Eastern District of California.

6

being served with a copy, any party may file written objections

7

with the Court and serve a copy on all parties.

8

should be captioned “Objections to Magistrate Judge’s Findings

9

and Recommendations.”

Within thirty (30) days after

Such a document

Replies to the objections shall be served

10

and filed within fourteen (14) days (plus three (3) days if

11

served by mail) after service of the objections.

12

then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §

13

636 (b)(1)(C).

14

objections within the specified time may waive the right to

15

appeal the District Court’s order.

16

1153 (9th Cir. 1991).

The Court will

The parties are advised that failure to file

Martinez v. Ylst, 951 F.2d

17
18

IT IS SO ORDERED.

19

Dated:
ie14hj

July 8, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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