Walker v. Uribe

Filing 35

ORDER Directing The Clerk To Substitute Warden P.D. Brazelton As Respondent (Doc. 28 ), FINDINGS And RECOMMENDATIONS To Grant Respondent's Motion To Dismiss The Petition (Doc. 28 ), FINDINGS And RECOMMENDATIONS To Dismiss The Petition As Untimely, Decline To Issue A Certificate Of Appealability, And Direct The Clerk To Close The Case, signed by Magistrate Judge Sheila K. Oberto on 1/4/2013. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 2/11/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL E. WALKER, II,

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Petitioner,

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v.
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P. D. BRAZELTON, Warden,
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Respondent.
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1:11-cv—00585-AWI-SKO-HC
ORDER DIRECTING THE CLERK TO
SUBSTITUTE WARDEN P. D. BRAZELTON
AS RESPONDENT (DOC. 28)
FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT’S MOTION TO
DISMISS THE PETITION (DOC. 28)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION AS UNTIMELY,
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DIRECT THE
CLERK TO CLOSE THE CASE

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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis pursuant to 28 U.S.C. § 2254 with a third amended
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petition that was filed on June 6, 2012 (doc. 22).

The matter

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has been referred to the Magistrate Judge pursuant to 28 U.S.C.
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§ 636(b)(1) and Local Rules 302 and 304.

Pending before the

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Court is Respondent’s motion to dismiss the petition as untimely,
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which was filed on August 6, 2012, along with supporting
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documentary exhibits.

Petitioner filed an opposition on August

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22, 2012.

Respondent filed a reply on September 4, 2012.

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Petitioner filed an amended opposition on October 1, 2012.

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Although the Court granted Respondent leave to reply to the

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supplemental opposition, no supplemental reply was filed.

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I.

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Petitioner named Domingo Uribe, Jr., Warden of Pleasant

Substitution of Respondent

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Valley State Prison (PVSP), as Respondent.

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motion to dismiss, Respondent informed the Court that the current

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warden of PVSP is P. D. Brazelton and requested that the Court

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substitute P. D. Brazelton as Respondent pursuant to Fed. R. Civ.

However, in the

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P. 25(d), which provides that a court may at any time order

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substitution of a public officer who is a party in an official

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capacity whose predecessor dies, resigns, or otherwise ceases to

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hold office.

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The Court concludes that P. D. Brazelton, Warden of PVSP, is

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an appropriate respondent in this action, and pursuant to Fed. R.

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Civ. P. 25(d), he should be substituted in place of Warden Uribe.

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Accordingly, the Clerk is ORDERED to substitute Warden P. D.

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Brazelton as Respondent.

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II.

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Proceeding by a Motion to Dismiss

Respondent has filed a motion to dismiss the petition on

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

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

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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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///
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The Ninth Circuit permits 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) (motion to dismiss a petition for failure to

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exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03

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(9th Cir. 1989) (motion to dismiss for state procedural default);

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

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

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(same).

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the Court orders the respondent to respond, and the Court should

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use Rule 4 standards to review a motion to dismiss filed before a

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formal answer.

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Thus, a respondent may file a motion to dismiss after

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

Here, 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 contained in

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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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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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III.

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On October 18, 2006, in case number 1091957 in the Superior

Background

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Court of the State of California, County of Stanislaus (SCSC),

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Petitioner was convicted of two counts of attempted murder, four
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counts of assault with a deadly weapon, one count of assault with

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a firearm, two counts of discharging a firearm at an occupied

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motor vehicle, one count of brandishing a firearm at a peace

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officer, one count of resisting arrest, one count of being an ex-

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felon in possession of firearm, and one count of evading a peace

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officer.

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1.)1

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determinate term of fifty-seven years plus two consecutive,

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indeterminate terms of twenty-five years to life in prison.

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Further, numerous enhancements were found true.

(LD

On December 12, 2006, Petitioner was sentenced to a total

(Id.; LD 2, 2.)
On May 20, 2009, the Court of Appeal of the State of

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California, Fifth Appellate District (CCA) affirmed the judgment

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on appeal.

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(LD 2.)

On June 15, 2009, Petitioner filed a petition for review in

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the California Supreme Court (CSC).

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the CSC denied the petition for review without a statement of

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reasoning or citation of any authority.

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(LD 3.)

On July 29, 2009,

(LD 4.)

On October 1, 2010, Petitioner filed in the SCSC a petition
for writ of habeas corpus.2

(LD 5.)

The Petitioner’s address as

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“LD” refers to documents lodged by Respondent in support of the motion
to dismiss.
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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); see, Habeas Rule 3(d). 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 submit 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, Petitioner’s signature on the petition form is next to a typed
date of October 1, 2010; it thus appears that Petitioner signed the petition
on October 1, 2010. (LD 5 at petition form’s handwritten page number 37.)

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set forth on the petition is Mr. Michael E. Walker, II T-60396,

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P. O. Box. 931, D-3, 129, Imperial, CA 92251.

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December 22, 2010, the SCSC denied the petition in a reasoned

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decision on the merits that did not refer to or determine the

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timeliness of the petition.

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denial is a certification and declaration under penalty of

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perjury of a deputy clerk of the Office of the Superior Court

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Administrator that on December 27, 2010, a copy of the order

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denying the petition was placed in an envelope addressed to

(LD 6.)

(Id. at 1.)

On

Attached to the order of

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Petitioner as follows: “Micheal (sic) Edward Walker, II T-60396;

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P. O. Box 931 D-3, 129; Imperial, CA 92251.”3

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further declared that the envelope was sealed, postage fully

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prepaid, and deposited in the United States Mail at Modesto,

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California, on the same date.

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The deputy clerk

(Id.)

On May 3, 2011, Petitioner filed in the SCSC a notice and

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request for ruling in the habeas corpus action in which he

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referred to the petition that he had filed on or about October 1,

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2010, in the SCSC.

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citation to state rules of court that he contended required a

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ruling by the court within sixty (60) days following the filing

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of a petition, or within thirty (30) days of assignment to a

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judge.

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request was a declaration made under penalty of perjury by

He requested a ruling on the petition with a

(Opp., doc. 31 at 10-11.)

Included in Petitioner’s

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Petitioner again referred to the date of October 1, 2010, in his later notice
and request for ruling. (Opp., doc. 31, 10.) The Court therefore infers that
October 1, 2010, as the earliest possible date Petitioner could have submitted
his petition to prison authorities for mailing, as the date of filing of the
petition.
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The Petitioner’s petition and the caption of the case in the SCSC’s
order of denial reflected the same spelling of Petitioner’s name. (LD 5 at 1,
LD 6 at 1.)

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Petitioner on May 3, 2011.

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declared that he had not received a ruling on the petition and

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was therefore causing the notice and request for ruling to be

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filed.

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declaration of service of the notice and request on the SCSC

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clerk and the state attorney general.

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address as set forth on the notice and request for ruling is

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Michael Walker II, CDCR # 60369, P.O. Box 931, 2302 Brown Road,

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Centinela State Prison, Imperial, CA 92251-0931. (Id. at 10.)

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thus appears that in his post-ruling communications with the

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SCSC, Petitioner’s CDCR number as set forth on the SCSC petition,

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namely, 60396, was modified by reversing the order of the last

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two digits to 60369, the CDCR number appearing on the docket in

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the present proceeding.

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In the declaration, Petitioner

(Opp., doc. 31 at 12.)

Petitioner likewise completed a

(Id. at 13.)

Petitioner’s

It

On May 23, 2011, the SCSC issued an order noting receipt of

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Petitioner’s notice and request for ruling on or about May 13,

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2011, and stating that the court had denied the petition in an

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order dated December 22, 2010.

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copy of the earlier order of denial.

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proof of service of the court’s response to the request for

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ruling, executed on May 26, 2011, indicates that it was mailed to

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Petitioner on May 26, 2011.

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Michael Walker II, CDCR # T-60369, P. O. Box 931, Centinela State

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Prison, Imperial, CA 92251-0931

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The court attached to the order a
(Opp., doc. 31 at 15.)

A

The address to which it was sent is

(LD 7, att. A.)

The amended opposition contains a copy of Petitioner’s legal

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mail log from the Centinela State Prison mail room.

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Ex. D, 17-22.)

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consideration of the log.

(Doc. 33,

Respondent has not objected to the Court’s
The Court will consider the log; thus,
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it is unnecessary for the Court to consider Petitioner’s request

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that the Court take judicial notice of the log.

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time covered by the portion of the log submitted to the Court is

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February 8, 2011, through September 12, 2012.

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outgoing mail to the SCSC clerk in Modesto on March 29, 2011 (id.

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at 20), April 11, 2011 (id. at 19), and May 9, 2011 (id. at 21).

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It reflects receipt of items from the SCSC that were mailed on

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April 21, 2011, and May 31, 2011.

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The period of

The log reflects

(Id. at 20.)

On June 6, 2011, Petitioner filed a petition for writ of

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habeas corpus in the CCA.

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handwritten page number 37, and proof of service on following

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page.)

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statement of reasoning or citation of authority.

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(LD 7, petition form at added,

On July 7, 2011, the CCA denied the petition without a
(LD 8.)

On December 1, 2011, Petitioner filed a petition for writ of

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habeas corpus in the CSC.

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11, 2012, the CSC denied the petition for writ of habeas corpus

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without a statement of reasoning or citation of authority.

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10.)

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(LD 9, petition form p. 6.)

On April

(LD

A search of the official website of the California courts

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reflects that no other cases were filed by Petitioner in the CCA

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or CSC that corresponded with the pertinent convictions.4

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Petitioner filed his original petition in this Court on

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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
websites. 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 address of the official
website of the California state courts is www.courts.ca.gov.

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April 11, 2011.
IV.

(Doc. 1.)

Limitation Period for Filing a Petition for Writ of
Habeas Corpus

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On April 24, 1996, Congress enacted the Antiterrorism and
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Effective Death Penalty Act of 1996 (AEDPA).

The AEDPA applies

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to all petitions for writ of habeas corpus filed after the
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enactment of the AEDPA.

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

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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).

Petitioner filed his

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original petition for writ of habeas corpus on or about April 11,
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2011.

Thus, the AEDPA applies to the petition.

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

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U.S.C. § 2244(d)(1).

As amended, subdivision (d) reads:

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(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 –
(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

(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;

(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
(D) the date on which the factual predicate
of the claim or claims presented could have been
discovered through the exercise of due diligence.
(2) The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
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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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V.

Commencement of the Running of the Statute

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Here, pursuant to § 2244(d)(1)(A), the limitation period
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runs from the date on which the judgment became final.
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Under § 2244(d)(1)(A), the “judgment” refers to the sentence
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imposed on the petitioner.

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

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57 (2007).

The last sentence was imposed on Petitioner on

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December 12, 2006.
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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.

Wixom v. Washington, 264 F.3d 894, 897 (9th Cir.

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2001).

The statute commences to run pursuant to § 2244(d)(1)(A)

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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 upon the
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conclusion of all direct criminal appeals in the state court
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system followed by the expiration of the time permitted for
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filing a petition for writ of certiorari.

Wixom, 264 F.3d at 897

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(quoting Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998),
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cert. denied, 525 U.S. 1187 (1999)).

Neither party has indicated

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that Petitioner sought certiorari from the United States Supreme
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Court.
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Here, Petitioner’s direct criminal appeals in the state
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court system concluded when his petition for review was denied by
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the California Supreme Court on July 29, 2009.

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permitted for seeking certiorari was ninety days.

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Rule 13; Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

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The time
Supreme Court

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

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pertinent time periods.

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n.2 (9th Cir. 2008), cert. denied, 130 S.Ct. 2415 (2010).

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Applying Fed. R. Civ. P. 6(a)(1)(A), the day of the triggering

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event is excluded from the calculation.

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period commenced on July 30, 2009, the day following the

See, Waldrip v. Hall, 548 F.3d 729, 735

Thus, the ninety-day

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California Supreme Court’s denial of review.

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Civ. P. 6(a)(1)(B), which requires counting every day, the

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ninetieth day was October 27, 2009.

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direct review expired on that date.

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Applying Fed. R.

Thus, the time for seeking

Petitioner argues that the time for seeking direct review

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expired thirty days later pursuant to Bunney v. Mitchell, 262

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F.3d 973 (9th Cir. 2001), which held that the one-year

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limitations period applicable to the habeas petition before the

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court started thirty days after the California Supreme Court

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denied the habeas petition before it based on Cal. Rules of

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Court, Rule 24, which then provided that a denial of a habeas

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petition was not final for thirty days after the decision.

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contrast, presently a decision of the California Supreme Court

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denying review of a decision of a Court of Appeal is final upon

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filing.

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California Supreme Court’s denial of Petitioner’s petition for

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review filed in case number S174172 on July 29, 2009, was final

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immediately.

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///

Cal. Rules of Court, Rule 8.532(b)(2)(a).

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In

Thus, the

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Therefore, the limitations period began to run on October

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28, 2009, the day following the expiration of the time for

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seeking certiorari and, absent any basis for tolling, concluded

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one year later on October 27, 2010.

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

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(holding analogously that the correct method for computing the

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running of the one-year grace period after the enactment of AEDPA

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is pursuant to Fed. R. Civ. P. 6(a), in which the day upon which

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the triggering event occurs is not counted).

Fed. R. Civ. P. 6(a);

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VI.

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

Statutory Tolling

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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.

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on notice that his habeas petition may be subject to dismissal

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based on the statute of limitations, he has the burden of

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demonstrating that the limitations period was sufficiently tolled

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by providing the pertinent facts, such as dates of filing and

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denial.

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(citing Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002),

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abrogation on other grounds recognized by Moreno v. Harrison, 245

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Fed.Appx. 606 (9th Cir. 2007)).

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28 U.S.C. § 2244(d)(2).

Once a petitioner is

Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009)

An application for collateral review is “pending” in state

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court “as long as the ordinary state collateral review process is

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‘in continuance’-i.e., ‘until the completion of’ that process.”

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Carey v. Saffold, 536 U.S. 214, 219-20 (2002).

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this generally means that the statute of limitations is tolled
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In California,

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from the time the first state habeas petition is filed until the

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California Supreme Court rejects the petitioner's final

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collateral challenge, as long as the petitioner did not

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“unreasonably delay” in seeking review.

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Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).

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of limitations is not tolled from the time a final decision is

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issued on direct state appeal and the time the first state

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collateral challenge is filed because there is no case “pending”

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during that interval.

Id. at 221-23; accord,
The statute

Id.; see, Lawrence v. Florida, 549 U.S.

10

327, 330-33 (2007) (holding that the time period after a state

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court’s denial of state post-conviction relief and while a

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petition for certiorari is pending in the United States Supreme

13

Court is not tolled because no application for state post-

14

conviction or other state collateral review is pending).

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In Carey v. Saffold, 536 U.S. 214, the Court held that an

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application is “pending” until it “has achieved final resolution

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through the State's post-conviction procedures.”

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application does not achieve the requisite finality until a state

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petitioner “completes a full round of collateral review.”

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219-20.

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application for post-conviction relief is pending 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

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Court denies review.

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1048 (9th Cir. 2003).

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Id. at 220.

An

Id. at

Accordingly, in the absence of undue delay, an

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

Here, on October 1, 2010, only twenty-six days before the

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one-year limitations period otherwise would have run, Petitioner

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filed his petition in the SCSC.

Respondent does not contend that
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1

Petitioner’s first state habeas petition was improperly filed.

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Thus, the pendency of the habeas petition in the SCSC tolled the

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statute from October 1, 2010, through December 22, 2010, the day

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the SCSC denied the petition.

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Respondent contends, however, that Petitioner unreasonably

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delayed after the denial of the SCSC petition on December 22,

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2010, and before filing the second state habeas petition in the

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CCA on June 6, 2011; thus, the statute had run by the time that

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the petition was filed in the CCA, and no further tolling is

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warranted.

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Absent a clear direction or explanation from the California

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Supreme Court about the meaning of the term “reasonable time” in

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a specific factual context, or a clear indication that a filing

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was timely or untimely, a federal court hearing a subsequent

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federal habeas petition must examine all relevant circumstances

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concerning the delay in each case and determine independently

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whether the California courts would have considered any delay

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reasonable so as to render the state collateral review petition

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

20

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

21

Evans v. Chavis,

The delay between the denial of the SCSC petition and the

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filing of the habeas petition in the CCA was approximately five

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and one-half months.

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unreasonable because it is longer than the relatively short

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periods of thirty (30) or sixty (60) days provided by most states

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for filing appeals.

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delays, however, have been found to be unreasonable: one hundred

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forty-six (146) days between the filing of two trial court

A delay of six months has been found to be

Evans v. Chavis, 546 U.S. at 201.

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Shorter

1

petitions, Banjo v. Ayers, 614 F.3d 964, 968-69 (9th Cir. 2010),

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cert. den., 131 S.Ct. 3023 (2011); intervals of eighty-one (81)

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and ninety-two (92) days between the disposition of a writ at one

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level and the filing of the next writ at a higher level,

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Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011), cert.

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den., 132 S.Ct. 554 (2011); unjustified delays of one hundred

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

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one petition and the filing of a subsequent petition, Chaffer v.

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Prosper, 592 F.3d. 1046, 1048 (9th Cir. 2010); and unexplained,

10

unjustified periods of ninety-seven (97) and seventy-one (71)

11

days, Culver v. Director of Corrections, 450 F.Supp.2d 1135, 1140

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(C.D.Cal. 2006); see, Sok v. Substance Abuse Training Facility,

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2011 WL 3648474, *4-*5 (No. 1:11-cv-00284-JLT-HC, E.D.Cal. Aug.

14

17, 2011) (finding a 163-day delay unreasonable and noting an

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apparent consensus emerging in the district courts in California

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that any delay of sixty days or less is per se reasonable, but

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that any delay “substantially” longer than sixty days is

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unreasonable).

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Here, the CCA summarily denied the petition.

Thus, the CCA

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did not expressly determine that the petition was untimely.

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However, considering only the length of the delay, the Court

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concludes that the delay of over five months was an unreasonable

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or substantial delay because it far exceeds the customarily short

24

periods of delay considered reasonable.

25

With respect to justification for the delay, to benefit from

26

statutory tolling, a petitioner must adequately justify a

27

substantial delay.

28

U.S. at 192-93; Waldrip v. Hall, 548 F.3d at 734.

28 U.S.C. § 2244(d)(2); Evans v. Chavis, 546

14

1

In In re Reno, 55 Cal.4th 428, 460-61 (2012), the California

2

Supreme Court summarized the applicable California law as

3

follows:

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27
28

Our rules establish a three-level analysis for
assessing whether claims in a petition for a writ of
habeas corpus have been timely filed. First, a claim
must be presented without substantial delay. Second, if
a petitioner raises a claim after a substantial delay,
we will nevertheless consider it on its merits if the
petitioner can demonstrate good cause for the delay.
Third, we will consider the merits of a claim presented
after a substantial delay without good cause if it
falls under one of four narrow exceptions: “(i) that
error of constitutional magnitude led to a trial that
was so fundamentally unfair that absent the error no
reasonable judge or jury would have convicted the
petitioner; (ii) that the petitioner is actually
innocent of the crime or crimes of which he or she was
convicted; (iii) that the death penalty was imposed by
a sentencing authority that had such a grossly
misleading profile of the petitioner before it that,
absent the trial error or omission, no reasonable judge
or jury would have imposed a sentence of death; or (iv)
that the petitioner was convicted or sentenced under an
invalid statute.” (In re Robbins, supra, 18 Cal.4th at
pp. 780–781, 77 Cal.Rptr.2d 153, 959 P.2d 311.) The
petitioner bears the burden to plead and then prove all
of the relevant allegations. (Ibid.)
The United States Supreme Court recently, and
accurately, described the law applicable to habeas
corpus petitions in California: “While most States set
determinate time limits for collateral relief
applications, in California, neither statute nor rule
of court does so. Instead, California courts ‘appl[y] a
general “reasonableness” standard’ to judge whether a
habeas petition is timely filed. Carey v. Saffold, 536
U.S. 214, 222 [122 S.Ct. 2134, 153 L.Ed.2d 260] (2002).
The basic instruction provided by the California
Supreme Court is simply that ‘a [habeas] petition
should be filed as promptly as the circumstances
allow....’” (Walker v. Martin, supra, 562 U.S. at p.
––––, 131 S.Ct. at p. 1125.) “A prisoner must seek
habeas relief without ‘substantial delay,’ [citations],
as ‘measured from the time the petitioner or counsel
knew, or reasonably should have known, of the
information offered in support of the claim and the
legal basis for the claim,’ [citation].” (Ibid.; see
also In re Robbins, supra, 18 Cal.4th at p. 780, 77
Cal.Rptr.2d 153, 959 P.2d 311 [“Substantial delay is
measured from the time the petitioner or his or her
counsel knew, or reasonably should have known, of the
15

1

information offered in support of the claim and the
legal basis for the claim.”].)

2
In re Reno, 55 Cal.4th at 460-61.

A petitioner must show

3
particular circumstances, based on allegations of specific facts,
4
sufficient to justify the delay; allegations made in general
5
terms are insufficient.

In re Robbins, 18 Cal.4th at 787-88, 805

6
(citing In re Walker, 10 Cal.3d 764, 774 (1974)).
7
The Ninth Circuit Court of Appeals has noted that there are
8
no California standards for determining what period of time or
9
factors constitute “substantial delay” in noncapital cases or for
10
determining what factors justify any particular length of delay.
11
King v. LaMarque, 464 F.3d 963, 966 (9th Cir. 2006).

It is

12
recognized that California’s time limit for filing a habeas
13
petition in a noncapital case is more “forgiving and flexible
14
than that employed by most states.”

Chavis, 546 U.S. at 202

15
(Stevens, J., concurring).
16
The Supreme Court has expressly noted that a petitioner’s
17
lack of notification of a court’s decision for several months and
18
filing the next petition within days after receiving notification
19
are potentially relevant considerations.

Carey v. Saffold, 536

20
U.S. at 226.

Further, a failure to receive notification from a

21
court that it has ruled on a petition for writ of habeas corpus
22
has been held to be a basis for concluding that a delay in filing
23
a habeas petition in the next higher California court was not
24
unreasonable.

Winston v. Sisto, 2008 WL 2119918, *6-*9 (No. CIV

25
S-07-2284 JAM DAD P, E.D.Cal. May 20, 2008) (unpublished)
26
(finding explained and not unreasonable, and hence statutorily
27
tolled pursuant to § 2244(d)(2), delay resulting from a failure
28
16

1

to receive a notice of a ruling until July 2005 with respect to a

2

petition filed in December 2004 and denied in April 2005, where

3

the Petitioner was transferred, the evidence supported a

4

conclusion that he filed a notice of change of address, and he

5

requested notice of the ruling in April 2005).

6

However, the delay is measured from the time the petitioner

7

or counsel knew, or reasonably should have known, of the factual

8

information offered in support of the claim and the legal basis

9

for the claim.

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

The

10

Robbins standard is that of an objective, reasonable person and

11

requires a demonstration of due diligence in pursuing potential

12

claims.

In re Douglas, 200 Cal.App.4th 236, 244 (2011).

13

Here, Petitioner’s declaration that he had not received

14

notice of the SCSC’s ruling on May 3, 2011, coupled with the mail

15

log, the SCSC’s minute order of May 23, 2011 responding to

16

Petitioner’s request for a ruling, and the copy of the envelope

17

from the SCSC with a receipt stamp of May 31, 2011, appear to

18

demonstrate that Petitioner did not actually receive the ruling

19

on his SCSC petition until late May 2011.

20

likewise supports the Respondent’s position that the declaration

21

of mailing made by the deputy clerk of the SCSC establishes that

22

the order denying the petition was mailed to Petitioner at the

23

address Petitioner had listed on the petition.

24

not submitted any mail log evidence that definitively establishes

25

that the prison or Petitioner did not receive any mail from the

26

SCSC during the pertinent time.

27
28

However, the record

Petitioner has

Although the record does not contain an express explanation
of why Petitioner did not receive the decision that was mailed
17

1

from the SCSC, it is presumed in California that official duties

2

were regularly performed.

3

presumed that the court clerk mailed the decision and that the

4

mail carriers delivered the decision.

5

delivery was affected or obstructed by the apparent transposition

6

of the digits in Petitioner’s CDCR identification number.

7

reasonably be inferred that Petitioner knew his own prisoner

8

identification number and thus was the party responsible for any

9

error in stating his identifying information on his petition.

Cal. Evid. Code § 664.

Thus, it is

It is possible that the

It may

10

Further, from the ultimate correction of the number reflected in

11

the later proceedings before this Court, it appears that

12

Petitioner ultimately discovered an error and corrected it.

13

A mistaken belief does not constitute good cause for delay

14

where the petitioner should have known that he needed to act to

15

pursue a claim diligently.

16

243-44.

17

known that he gave incorrect information on his petition.

18

Petitioner has not shown the reasonableness of either his

19

apparent mistake with respect to his identification information

20

or his waiting over five months for receipt of a decision that

21

was apparently mailed from a court that lacked complete and

22

correct identification information.

In re Douglas, 200 Cal.App.4th at

Here, as a reasonable person, Petitioner should have

23

The Court concludes that in this factual context, Petitioner

24

has not shown that he was reasonable and diligent with respect to

25

pursuing his claims.

26

substantial delay in filing his petition in the CCA.

27

concludes that California courts would have found Petitioner’s

28

delay in filing his petition in the CCA was not shown to have

Petitioner has not shown good cause for the

18

The Court

1

been supported by good cause.

2

Accordingly, Petitioner is not entitled to statutory tolling

3

during the interval between the denial of his SCSC petition in

4

December 2010 and his filing of the CCA petition on June 6, 2011.

5

VII.

6

The one-year limitation period of § 2244 is subject to

7

equitable tolling where the petitioner shows that he or she has

8

been diligent, and extraordinary circumstances have prevented the

9

petitioner from filing a timely petition.

10

U.S. –, 130 S.Ct. 2549, 2560, 2562 (2010).

11

provide specific facts to demonstrate that equitable tolling is

12

warranted; conclusional allegations are generally inadequate.

13

Williams v. Dexter, 649 F.Supp.2d 1055, 1061-62 (C.D.Cal. 2009).

14

Equitable Tolling

Holland v. Florida, –
Petitioner must

The petitioner must show that extraordinary circumstances

15

were the cause of his untimeliness and that the extraordinary

16

circumstances made it impossible to file a petition on time.

17

Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009).

18

prisoner fails to show any causal connection between the grounds

19

upon which he asserts a right to equitable tolling and his

20

inability to timely file a federal habeas application, the

21

equitable tolling claim will be denied.

22

F.3d 1030, 1034-35 (9th Cir. 2005).

23

counsel to recognize that a state filing was unreasonably delayed

24

under California law is not the result of an “external force”

25

that rendered timeliness impossible, but rather is attributable

26

to the petitioner as the result of his own actions.

27

Kirkland, 639 F.3d 964, 969 (9th Cir. 2011).

28

///
19

Where a

Gaston v. Palmer, 417

The failure of a prisoner or

Velasquez v.

1

The diligence required for equitable tolling is reasonable

2

diligence, not “maximum feasible diligence.”

3

130 S.Ct. at 2565.

4

equitable tolling [under AEDPA] is very high, lest the exceptions

5

swallow the rule.”

6

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

Holland v. Florida,

However, “the threshold necessary to trigger

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

7

A prisoner’s lack of knowledge that the state courts have

8

reached a final resolution of his case can provide grounds for

9

equitable tolling if the prisoner has acted diligently in the

10

matter.

11

of notification of a ruling may serve equitably to toll the

12

running of the statute.

13

1077, 1083-84 (C.D.Cal. 2007) (statute equitably tolled for

14

approximately two and one-half months between the superior

15

court’s denial of the petitioner’s habeas petition and the date

16

on which the petitioner received notice of the court’s denial,

17

and collecting authorities); Lewis v. Mitchell, 173 F.Supp.2d

18

1057, 1061-62 (C.D.Cal. 2001) (statute equitably tolled for five

19

months between a court’s ruling and the petitioner’s receipt of

20

notice of it where the prison returned the mailed notification of

21

the denial to the state supreme court because the prisoner’s

22

prison number did not appear on the envelope, despite the

23

petitioner’s having provided her prisoner number to the court);

24

Lopez v. Scribner, 2008 WL 2441362, *7-*9 (No. CV 07-6954-ODW

25

(JTL), C.D.Cal. Apr. 11, 2008) (assuming statute was equitably

26

tolled during the time between a court’s denial of a first state

27

habeas petition and the date the petitioner learned of the

28

denial, where the petitioner did not receive notice of the

Ramirez v. Yates, 571 F.3d at 997.

A delay in receipt

See, White v. Ollison, 530 F.Supp.2d

20

1

court’s September 2006 denial of a petition filed in August 2006

2

until the petitioner sought a ruling in February 2007, and the

3

delay made it impossible for the petitioner to file a timely

4

federal habeas petition).

5

Here, Petitioner has not shown that an extraordinary

6

circumstance caused the delay.

7

specific facts demonstrating that the reason for his delay was

8

anything other than his own conduct in putting erroneous

9

information on his petition.

Petitioner has not alleged

Further, Petitioner has not shown

10

that as a person who apparently put incorrect identification or

11

address information on his petition and then delayed for about

12

six months before seeking any information on the status of the

13

petition, he was reasonably diligent in pursuing relief from the

14

state courts.

15

The Court concludes that Petitioner has not shown that he is

16

entitled to equitable tolling of the statute of limitations with

17

respect to his delay in filing the petition in the CCA.

18

Court further concludes that the petition in the CCA was not

19

timely and properly filed.

20

during the interval between the SCSC’s denial of the petition in

21

December 2010 and Petitioner’s filing of a petition in the CCA.

22

Therefore, the statute was not tolled during this interval, and

23

the statute of limitations expired in January 2011 – long before

24

Petitioner filed his federal petition in April 2011.

25

The

Accordingly, no petition was pending

The Court concludes that the petition filed in this action

26

was untimely filed.

27

the petition should be granted.

28

///

Therefore, Respondent’s motion to dismiss

21

1

VIII.

2

Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

3

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

4

from the final order in a habeas proceeding in which the

5

detention complained of arises out of process issued by a state

6

court.

7

U.S. 322, 336 (2003).

8

only if the applicant makes a substantial showing of the denial

9

of a constitutional right.

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

10

petitioner must show that reasonable jurists could debate whether

11

the petition should have been resolved in a different manner or

12

that the issues presented were adequate to deserve encouragement

13

to proceed further.

14

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

15

certificate should issue if the Petitioner shows that jurists of

16

reason would find it debatable whether the petition states a

17

valid claim of the denial of a constitutional right or that

18

jurists of reason would find it debatable whether the district

19

court was correct in any procedural ruling.

20

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

21

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

Slack v. McDaniel,

In determining this issue, a court conducts an overview of

22

the claims in the habeas petition, generally assesses their

23

merits, and determines whether the resolution was debatable among

24

jurists of reason or wrong.

25

applicant to show more than an absence of frivolity or the

26

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

27

applicant to show that the appeal will succeed.

28

Cockrell, 537 U.S. at 338.

Id.

22

It is necessary for an

Miller-El v.

1

A district court must issue or deny a certificate of

2

appealability when it enters a final order adverse to the

3

applicant.

4

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

Here, it does not appear that reasonable jurists could

5

debate whether the petition should have been resolved in a

6

different manner.

7

of the denial of a constitutional right.

8
9

Petitioner has not made a substantial showing

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

10

IX.

11

Accordingly, it is RECOMMENDED that:

12

1) Respondent’s motion to dismiss the petition be GRANTED;

13

2) The petition be dismissed as untimely filed;

14

3) The Court DECLINE to issue a certificate of

15

Recommendations

appealability; and

16

4) The Clerk be DIRECTED to close the action.

17

These findings and recommendations are submitted to the

18

United States District Court Judge assigned to the case, pursuant

19

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

20

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

21

Eastern District of California.

22

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

23

with the Court and serve a copy on all parties.

24

should be captioned “Objections to Magistrate Judge’s Findings

25

and Recommendations.”

26

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

27

served by mail) after service of the objections.

28

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

Within thirty (30) days after

Such a document

Replies to the objections shall be served

23

The Court will

1

§ 636 (b)(1)(C).

2

objections within the specified time may waive the right to

3

appeal the District Court’s order.

4

1153 (9th Cir. 1991).

The parties are advised that failure to file

Martinez v. Ylst, 951 F.2d

5
6

IT IS SO ORDERED.

7

Dated:
ie14hj

January 4, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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