Velasco v. Biter
Filing
18
ORDER Granting Respondent's Motion To Dismiss The Petition (Doc. 13 ), ORDER Dismissing The Petition With Prejudice (Doc. 1 ) And Directing The Clerk To Enter Judgment, ORDER Declining To Issue A Certificate Of Appealability, signed by Magistrate Judge Barbara A. McAuliffe on 6/5/2012. CASE CLOSED. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JUAN CARLOS SANTIAGO VELASCO, )
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Petitioner,
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v.
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M. D. BITER,
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Respondent.
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1:11-cv—01952-BAM-HC
ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS THE PETITION
(DOC. 13)
ORDER DISMISSING THE PETITION
WITH PREJUDICE (DOC. 1) AND
DIRECTING THE CLERK TO ENTER
JUDGMENT
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
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Petitioner is a state prisoner proceeding pro se and in
19
forma pauperis with a petition for writ of habeas corpus pursuant
20
to 28 U.S.C. § 2254.
21
parties have consented to the jurisdiction of the United States
22
Magistrate Judge to conduct all further proceedings in the case,
23
including the entry of final judgment, by manifesting their
24
consent in writings signed by the parties or their
25
representatives and filed by Petitioner on December 7, 2011, and
26
on behalf of Respondent on January 13, 2012.
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Pursuant to 28 U.S.C. § 636(c)(1), the
Pending before the Court is Respondent’s motion to dismiss
the petition as untimely, which was filed on January 27, 2012.
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1
Respondent lodged supporting documents in connection with the
2
motion.
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2012.
Petitioner filed opposition to the motion on March 15,
No reply was filed.
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I.
5
Respondent has filed a motion to dismiss the petition on the
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7
Motion to Dismiss for Untimeliness
ground that the petition was untimely filed.
Rule 4 of the Rules Governing Section 2254 Cases (Habeas
8
Rules) allows a district court to dismiss a petition if it
9
“plainly appears from the face of the petition and any exhibits
10
annexed to it that the petitioner is not entitled to relief in
11
the district court....”
12
In the Ninth Circuit, respondents have been allowed to file
13
a motion to dismiss pursuant to Rule 4 instead of an answer if
14
the motion to dismiss attacks the pleadings by claiming that the
15
petitioner has failed to exhaust state remedies or has violated
16
the state’s procedural rules.
17
F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion
18
to dismiss a petition for failure to exhaust state remedies);
19
White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule
20
4 to review a motion to dismiss for state procedural default);
21
Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982)
22
(same).
23
the Court orders the respondent to respond, and the Court should
24
use Rule 4 standards to review a motion to dismiss filed before a
25
formal answer.
26
See, e.g., O’Bremski v. Maass, 915
Thus, a respondent may file a motion to dismiss after
See, Hillery, 533 F. Supp. at 1194 & n.12.
In this case, Respondent's motion to dismiss addresses the
27
timing of the filing of the petition.
28
pertinent to the motion are mainly to be found in copies of the
2
The material facts
1
official records of state judicial proceedings which have been
2
provided by the parties, and as to which there is no factual
3
dispute.
4
because Respondent's motion to dismiss is similar in procedural
5
standing to a motion to dismiss for failure to exhaust state
6
remedies or for state procedural default, the Court will review
7
Respondent’s motion to dismiss pursuant to its authority under
8
Rule 4.
9
10
II.
Because Respondent has not filed a formal answer and
The Limitations Period
On April 24, 1996, Congress enacted the Antiterrorism and
11
Effective Death Penalty Act of 1996 (AEDPA), which applies to all
12
petitions for writ of habeas corpus filed after its enactment.
13
Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114
14
F.3d 1484, 1499 (9th Cir. 1997).
15
for writ of habeas corpus on July 9, 2008.
16
applies to the petition.
17
Petitioner filed his petition
Thus, the AEDPA
The AEDPA provides a one-year period of limitation in which
18
a petitioner must file a petition for writ of habeas corpus.
19
U.S.C. § 2244(d)(1).
20
proceedings for collateral review as a basis for tolling the
21
running of the period.
22
23
It further identifies the pendency of some
As amended, subdivision (d) provides:
(d)(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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28
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(B) the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States
is removed, if the applicant was prevented from
3
1
filing by such State action;
2
(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
3
4
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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.
6
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8
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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.
10
28 U.S.C. § 2244(d).
11
III.
Factual Summary
12
In the petition filed here, Petitioner challenges his
13
conviction of assault with a deadly weapon and with force likely
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to produce great bodily injury, and his sentence of seventeen
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years that was enhanced for Petitioner’s personal infliction of
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great bodily injury and his commission of the offense for the
17
benefit of a criminal street gang in violation of Cal. Pen. Code
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§§ 245(a)(1), 186.22(b)(1)(c), and 12022.7(a).
(Pet., doc. 1, 1-
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2, 6-15.)
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Petitioner was sentenced in the Merced County Superior Court
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(MCSC) on June 17, 2005.
(LD 1.)
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On December 12, 2006, 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 direct appeal.
(LD 2, 10.)
25
Petitioner filed a petition for review in the California
26
Supreme Court (CSC) on January 23, 2007, which was dismissed on
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September 12, 2007, in light of People v. Black, 41 Cal.4th 799
28
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(2007).
2
suggesting that Petitioner sought certiorari; Petitioner states
3
in his opposition that his direct appeal concluded on December
4
12, 2007, in light of the ninety-day period for filing a petition
5
for writ of certiorari.
6
(LD 3-4.)
There is no evidence before the Court
(Opp., doc. 17, 1:24-26.)
On August 10, 2009, Petitioner filed1 a petition for writ of
7
habeas corpus in the MCSC.
8
on January 4, 2010, because 1) in the absence of an exception to
9
the general rule, reconsideration of all grounds for relief that
(LD 5, 1.)
The petition was denied
10
could have been raised on appeal but were not so raised was
11
barred; and 2) all twenty-two grounds alleged in the petition
12
were untimely, and Petitioner had failed to explain meritoriously
13
the reasons for his considerable delay in seeking habeas relief.
14
(LD 6, 1-2.)
15
On December 24, 2009, Petitioner filed a petition for writ
16
of habeas corpus in the CCA.
17
the CCA denied the petition without any statement of reasoning or
18
citation of authority.
19
(LD 7, 1.)
On January 21, 2010,
(LD 8.)
On January 25, 2010, Petitioner filed another petition for
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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, Rule 3(d) of the Rules Governing Section
2254 Cases in the United States District Courts (Habeas Rules). 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). The Petitioner’s filings have been given
the benefit of the mailbox rule to the extent possible based on the
documentation before the Court.
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writ of habeas corpus in the CCA, which denied the petition
2
without any statement of reasoning or citation of authority.
3
9-10.)
4
(LD
On March 16, 2010, Petitioner filed a petition for writ of
5
habeas corpus in the CSC, which denied the petition with
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citations to In re Robbins, 18 Cal.4th 770, 780 (1998) and People
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v. Duvall, 9 Cal.4th 464, 474 (1995).
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(L.D. 11, 35; LD 12.)
On September 28, 2011, Petitioner filed the petition that is
presently pending before the Court.
The proceeding was
transferred to this Court on November 23, 2011.
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IV.
12
Pursuant to § 2244(d)(1)(A), the limitation period runs from
13
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The Running of the Limitations Period
the date on which the judgment became final.
Under § 2244(d)(1)(A), the “judgment” refers to the sentence
15
imposed on the petitioner.
16
57 (2007).
17
17, 2005.
18
Burton v. Stewart, 549 U.S.147, 156-
The last sentence was imposed on Petitioner on June
Under § 2244(d)(1)(A), a judgment becomes final either upon
19
the conclusion of direct review or the expiration of the time for
20
seeking such review in the highest court from which review could
21
be sought.
22
2001).
23
upon either 1) the conclusion of all direct criminal appeals in
24
the state court system, followed by either the completion or
25
denial of certiorari proceedings before the United States Supreme
26
Court; or 2) if certiorari was not sought, then by the conclusion
27
of all direct criminal appeals in the state court system followed
28
by the expiration of the time permitted for filing a petition for
Wixom v. Washington, 264 F.3d 894, 897 (9th Cir.
The statute commences to run pursuant to § 2244(d)(1)(A)
6
1
writ of certiorari.
2
Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied 525
3
U.S. 1187 (1999)).
4
Wixom, 264 F.3d at 897 (quoting Smith v.
Here, Petitioner’s direct review concluded when his petition
5
for review was dismissed by the California Supreme Court on
6
September 12, 2007.
7
days thereafter on December 11, 2007, when the period for seeking
8
a writ of certiorari concluded.
See, Bowen v. Roe, 188 F.3d
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1157, 1158-59 (9th Cir. 1999).
Thus, the limitations period
The time for direct review expired ninety
10
began to run on December 12, 2007, to expire one year later on
11
December 11, 2008.
12
(9th Cir. 2001) (holding analogously that the correct method for
13
computing the running of the one-year grace period is pursuant to
14
Fed. R. Civ. P. 6(a), in which the day upon which the triggering
15
event occurs is not counted).
16
Patterson v. Stewart, 251 F.3d 1243, 1245-46
The petition was filed here on September 28, 2011.
Thus,
17
absent any tolling, the petition shows on its face that it was
18
filed outside the one-year limitations period provided for by the
19
statute.
20
V.
21
Title 28 U.S.C. § 2244(d)(2) states that the “time during
Statutory Tolling pursuant to 28 U.S.C. § 2244(d)(2)
22
which a properly filed application for State post-conviction or
23
other collateral review with respect to the pertinent judgment or
24
claim is pending shall not be counted toward” the one-year
25
limitation period.
26
28 U.S.C. § 2244(d)(2).
Once a petitioner is on notice that his habeas petition may
27
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
7
1
sufficiently tolled by providing pertinent dates of filing and
2
denial, although the state must affirmatively argue that the
3
petitioner failed to meet his burden of alleging the tolling
4
facts; simply noting the absence of such facts is not sufficient.
5
Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002).
6
Here, Petitioner did not file his first state petition for
7
collateral relief until August 10, 2009, eight months after the
8
statutory period had expired on December 11, 2008.
9
statutory period had run by the time any application for
10
11
Thus, the
collateral relief was filed in the state courts.
Under such circumstances, the pendency of state applications
12
has no tolling effect.
13
(9th Cir. 2003) (filing a state collateral petition after the
14
running of the one-year limitations period of the AEDPA but even
15
before the expiration of the pertinent state period of finality
16
did not toll the running of the period under § 2244(d)(2)).
17
Ferguson v. Palmateer, 321 F.3d 820, 823
Respondent further notes that in any event, the state courts
18
expressly found that some of the petitions filed by Petitioner
19
were untimely, and thus they could not have tolled the running of
20
the statutory period because they were not properly filed.
21
An application for state post-conviction or other collateral
22
review is “properly filed” within the meaning of 28 U.S.C.
23
§ 2244(d)(2) when its delivery and acceptance are in compliance
24
with the applicable laws and rules governing filings, such as
25
provisions concerning the form of the document, the time limits
26
upon its delivery, the court and office in which it must be
27
lodged, and the requisite filing fee.
28
4, 8 (2000).
Artuz v. Bennett, 531 U.S.
State time limits are conditions to filing, which
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1
render a petition not “properly filed” within the meaning of 28
2
U.S.C. § 2244(d)(2).
3
a state court rejects a petition for post-conviction relief as
4
untimely, the petition is not a “properly filed” application for
5
post-conviction or collateral review within the meaning of §
6
2244(d)(2), and thus it does not toll the running of the
7
limitation period.
8
California’s standards, none of the time before or during the
9
court’s consideration of the petition is statutorily tolled.
10
White v. Martel, 601 F.3d 882, 883-84 (9th Cir. 2010), cert.
11
denied, 131 S.Ct. 332 (2010).
12
Pace v. DiGuglielmo, 544 U.S. at 417.
Id.
When
Where a petition is untimely under
Here, the MCSC denied Petitioner’s first habeas petition
13
with an express determination that the claims were all untimely
14
and were presented without any meritorious reason for
15
Petitioner’s considerable delay.
16
with its finding of untimeliness, the MCSC cited In re Robbins,
17
18 Cal.4th 770, 780-781 (1998).
18
denied the second petition, which contained the same claims as
19
the first.
20
third petition, which contained all the claims contained in the
21
second petition.
22
appellate court did not silently disregard the last reasoned
23
opinion of the MCSC (LD 3), in which the court found the petition
24
was procedurally deficient.
25
797, 803-06 (1991).
26
determinations that the petitions were untimely.
27
28
(LD 5, 7, 8.)
(LD 6, 1-2.)
(Id. at 2.)
In connection
The CCA summarily
The CCA likewise summarily denied the
(LD 7, 9, 10.)
It is presumed that the state
Cf. Ylst v. Nunnemaker, 501 U.S.
Thus, the CCA’s silent denials constituted
The CSC then denied the fourth habeas petition with a
citation to Robbins, 18 Cal.4th at 780.
9
(LD 12.)
Robbins stands
1
for the proposition that delayed and repetitious claims will not
2
be condoned; a citation to Robbins at 780 means that the petition
3
was untimely.
4
2007).
5
Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir.
Therefore, in addition to having been filed too late to toll
6
the statute, Petitioner’s state petitions were not properly
7
filed, and thus they did not toll the limitations period for
8
purposes of 28 U.S.C. § 2244(d)(2).
9
at 414-15.
10
Pace v. DiGulielmo, 544 U.S.
It is concluded that the running of the limitations period
11
was not tolled by Petitioner’s state court filings pursuant to
12
§ 2244(d)(2).
13
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VI.
Equitable Tolling
The one-year limitation period of § 2244 is subject to
15
equitable tolling where the petitioner has been diligent, and
16
extraordinary circumstances, such as the egregious misconduct of
17
counsel, have prevented the petitioner from filing a timely
18
petition.
19
(2010).
20
circumstances were the cause of his untimeliness and that the
21
extraordinary circumstances made it impossible to file a petition
22
on time.
23
The diligence required for equitable tolling is reasonable
24
diligence, not “maximum feasible diligence.”
25
130 S.Ct. at 2565.
26
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
27
[under AEDPA] is very high, lest the exceptions swallow the
28
rule.”
Spitsyn v. Moore, 345 F.3d 796, 799 (quoting Miranda v.
10
1
2
Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)).
In his opposition, Petitioner asserts in an unsworn
3
statement that he had tried to file a petition for writ of habeas
4
corpus in the MCSC in May 2007, but the petition was returned
5
with a notation that it was on the wrong form, and with a
6
direction to submit it on the current form.
7
that he complied with the direction; the court enclosed a
8
“current 2009 Judicial form,” which Petitioner resubmitted “in
9
all diligence.”
(Opp., doc. 17, 1-2.)
Petitioner states
Although Petitioner
10
asserts generally that he was diligent, Petitioner does not
11
provide any facts that would explain why he delayed over two
12
years before filing another petition in the MCSC in August 2009.
13
Petitioner argues that his appellate counsel refused to
14
submit on appeal the additional claims that Petitioner seeks to
15
raise here.
16
ineffective assistance of counsel constituted an extraordinary
17
circumstance.
Petitioner may be attempting to assert that the
18
Reference to the opinion of the CCA in the direct appeal
19
shows that the assault of which Petitioner was convicted involved
20
Petitioner’s knocking the victim’s red hat off his head and
21
ordering the victim to take off his red jacket because Petitioner
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did not like the victim’s wearing red on Petitioner’s street.
23
short time later, Petitioner again encountered the victim, who
24
had put his jacket back on after having removed it for
25
Petitioner.
26
ran to the victim, who again removed his jacket.
27
swung at the victim and missed; the victim hit Petitioner, who
28
fell.
A
Petitioner and a companion exited their vehicle and
Petitioner
Petitioner’s companion threw a beer at the victim and
11
1
attacked him, but Petitioner’s companion was punched and knocked
2
to the ground by the victim.
3
victim and stabbed him on the side, and Petitioner’s companion
4
stabbed the victim on his other side; one of the assailants was
5
observed by the victim carrying a five-inch-long boot knife.
6
Petitioner and his companion ran off and drove away.
7
3.)
8
9
Petitioner than ran up behind the
(LD 2, 2-
The victim’s identification of Petitioner in a photographic
line-up was certain because the victim had been in the same
10
grade, and in some of the same classes, as Petitioner in high
11
school.
12
time of the attack identified Petitioner and Petitioner’s
13
companion.
14
and his co-participant because he had grown up with Petitioner
15
and had attended the same school; he had also seen Petitioner
16
around town a lot.
17
Further, persons who had accompanied the victim at the
One of the victim’s companions knew both Petitioner
(LD 2, 4.)
The claims which Petitioner seeks to raise here that were
18
not raised on appeal primarily concern alleged judicial bias and
19
erroneous rulings as well as the prosecution’s failure to
20
disclose, or untimely disclosure of, information that related to
21
impeachment of Petitioner’s alibi witness, and a stipulation to
22
be revealed to the jury regarding this information.
23
information related to the defense witness’s having allegedly
24
attacked a child a year and one-half before the trial.
25
The
(LD 5.)
The record before the Court does not reveal counsel’s
26
reasons for failing to raise the omitted issues.
27
negligence or excusable neglect on the part of counsel does not
28
warrant equitable tolling.
Generally, mere
Holland v. Forida, 130 S.Ct. 2549,
12
1
2564.
2
abandonment of the client or a failure to perform essential
3
functions might provide a basis for equitable tolling.
4
However, more egregious misconduct in the nature of
Id.
Here, it is unknown why appellate counsel did not raise
5
these issues on appeal.
6
concerning the substance of the alibi witness’s knowledge or
7
testimony, or the circumstances relevant to the stipulation, that
8
would support an inference that counsel was engaging in sub-
9
standard conduct in failing to raise these issues on appeal, or
Petitioner has not set forth any facts
10
that a failure to raise such issues was prejudicial to
11
Petitioner.
12
(1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994).
13
concluded that Petitioner has not demonstrated that his counsel
14
rendered ineffective assistance, let alone egregious misconduct
15
that might warrant equitable tolling.
16
See, Strickland v. Washington, 466 U.S. 668, 687-94
It is
Petitioner asserts that he had difficulty obtaining his
17
trial transcripts, which, despite his requests, were not mailed
18
to him until March 2008, which was about six months after the
19
conclusion of his direct appeal.
20
lacked knowledge and suffered unspecified limitations with
21
respect to access to legal materials; further, in the last six
22
weeks before Petitioner submitted his opposition to the instant
23
motion, his custodial institution was on lock-down, and he had no
24
opportunity to visit the law library.
Petitioner also asserts that he
(Id. at 1-4.)
25
Here, Petitioner proceeded pro se.
26
status is not an extraordinary circumstance.
27
592 F.3d 1046, 1049 (9th Cir. 2010).
28
confusion or ignorance of the law is not alone a circumstance
13
Petitioner’s pro se
Chaffer v. Prosper,
A pro se petitioner's
1
warranting equitable tolling.
2
1154 (9th Cir. 2006).
3
machine is a routine restriction of prison life and thus is not
4
an extraordinary circumstance.
5
993.
6
not shown how any limitation of access to the law library or to
7
any other materials actually made it impossible for him to file a
8
petition.
9
that establishes that lack of access to specific materials
10
Rasberry v. Garcia, 448 F.3d 1150,
Limited access to a law library and copy
Ramirez v. Yates, 571 F.3d at
Petitioner’s allegations are general, and Petitioner has
Thus, Petitioner’s showing differs materially from one
precluded timely filing.
11
Further, Petitioner’s filing of numerous petitions in the
12
state courts during his incarceration is inconsistent with his
13
allegations of impossibility.
14
998.
15
question actually caused Petitioner’s inability to file timely a
16
federal habeas application.
17
equitable tolling claim.
18
1034-35 (9th Cir. 2005).
19
Cf., Ramirez v. Yates, 571 F.3d at
Petitioner has failed to show that the circumstances in
Such a failure warrants denial of an
Gaston v. Palmer, 417 F.3d 1030,
Likewise, Petitioner has not established his diligence more
20
generally throughout the state court proceedings in attempting to
21
file a timely federal petition.
22
forth affirmative allegations showing his diligent efforts to
23
file the necessary documents.
24
at 1049.
25
seeking equitable tolling to exercise reasonable diligence in
26
attempting to file timely after the extraordinary circumstances
27
begin disrupts the link of causation between the circumstances
28
and the failure to file.
Petitioner has failed to set
Cf., Chaffer v. Prosper, 592 F.3d
It is established that the failure of the person
Spitsyn v. Moore, 345 F.3d at 802.
14
1
The Court concludes that Petitioner has not demonstrated
2
extraordinary circumstances or diligence, and thus he is not
3
entitled to equitable tolling of the statutory period.
4
In summary, the Court finds that the facts concerning the
5
various state proceedings are essentially undisputed.
6
petition was filed outside of the one-year statutory period, and
7
Petitioner failed to demonstrate his entitlement to relief from
8
the bar of the statute of limitations.
9
10
The
Accordingly, Respondent’s motion to dismiss the petition as
untimely filed will be granted.
11
VII.
12
Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
13
appealability, an appeal may not be taken to the court of appeals
14
from the final order in a habeas proceeding in which the
15
detention complained of arises out of process issued by a state
16
court.
17
U.S. 322, 336 (2003).
18
only if the applicant makes a substantial showing of the denial
19
of a constitutional right.
20
petitioner must show that reasonable jurists could debate whether
21
the petition should have been resolved in a different manner or
22
that the issues presented were adequate to deserve encouragement
23
to proceed further.
24
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
25
certificate should issue if the Petitioner shows that jurists of
26
reason would find it debatable whether the petition states a
27
valid claim of the denial of a constitutional right and, with
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respect to procedural issues, that jurists of reason would find
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
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A
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it debatable whether the district court was correct in any
2
procedural ruling.
3
(2000).
4
Slack v. McDaniel, 529 U.S. 473, 483-84
In determining this issue, a court conducts an overview of
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the claims in the habeas petition, generally assesses their
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merits, and determines whether the resolution was debatable among
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jurists of reason or wrong.
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applicant to show more than an absence of frivolity or the
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existence of mere good faith; however, it is not necessary for an
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Id.
It is necessary for an
applicant to show that the appeal will succeed.
Id. at 338.
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A district court must issue or deny a certificate of
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appealability when it enters a final order adverse to the
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applicant.
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Habeas Rule 11(a).
Here, because the facts concerning the various state
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proceedings are undisputed, and because Petitioner failed to
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demonstrate by specific facts his entitlement to relief from the
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bar of the statute of limitations, jurists of reason would not
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find it debatable whether the Court was correct in its ruling.
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Accordingly, the Court concludes that Petitioner has not
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made a substantial showing of the denial of a constitutional
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right, and the Court will decline to issue a certificate of
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appealability.
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VIII.
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Accordingly, it is ORDERED that:
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1) Respondent’s motion to dismiss the petition is GRANTED;
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Disposition
and
2) The petition for writ of habeas corpus is DISMISSED WITH
PREJUDICE as untimely filed; and
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3) The Clerk is DIRECTED to enter judgment and close the
case; and
4) The Court DECLINES to issue a certificate of
appealability.
IT IS SO ORDERED.
Dated:
10c20k
June 5, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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