Evans v. Soto

Filing 23

FINDINGS and RECOMMENDATIONS to Deny Respondent's 17 Motion to Dismiss, Dismiss Petitioner's 19 21 22 Motions as Moot, and to Refer the Case back to the Magistrate Judge; Objections Deadline: Thirty (30) Days signed by Magistrate Judge Barbara A. McAuliffe on 9/13/2013. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 10/18/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:12-cv-01652-LJO-BAM-HC

11 STEFAN E. EVANS,
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Petitioner,
v.

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SOTO, Warden,
Respondent.

FINDINGS AND RECOMMENDATIONS TO
DENY RESPONDENT’S MOTION TO DISMISS
(DOC. 17), DISMISS PETITIONER’S
MOTIONS AS MOOT (DOCS. 19, 21, 22),
AND TO REFER THE CASE BACK TO THE
MAGISTRATE JUDGE
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a state prisoner proceeding pro se and in forma
pauperis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.

The matter has been referred to the Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
Pending before the Court is the Respondent’s motion to dismiss the
petition as untimely, which was filed on March 28, 2013.

Petitioner

filed opposition in several documents, including 1) a motion to
excuse harmless negligence, which was filed on April 24, 2013, and
which related in part to the present motion; 2) a declaration
regarding appointment of counsel, which was filed on April 29, 2013;
and 3) supplemental opposition filed on June 3, 2013.
1

The Court

1 considers Petitioner’s supplemental opposition to be timely because
2 the matters submitted were not available earlier due to
3 institutional delays at Petitioner’s institution of confinement.
4 (Doc. 22, 2.)

Although the time for filing a reply has passed, no

5 reply was filed.
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I.

Proceeding by a Motion to Dismiss

7

Respondent has filed a motion to dismiss the petition on the

8 ground that Petitioner filed his petition outside of the one-year
9 limitation period provided for by 28 U.S.C. § 2244(d)(1).
10

Rule 4 of the Rules Governing Section 2254 Cases in the United

11 States District Courts (Habeas Rules) allows a district court to
12 dismiss a petition if it “plainly appears from the face of the
13 petition and any exhibits annexed to it that the petitioner is not
14 entitled to relief in the district court....”
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The Ninth Circuit has allowed respondents to file motions to

16 dismiss pursuant to Rule 4 instead of answers if the motion to
17 dismiss attacks the pleadings by claiming that the petitioner has
18 failed to exhaust state remedies or has violated the state’s
19 procedural rules.

See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420

20 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss a
21 petition for failure to exhaust state remedies); White v. Lewis, 874
22 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to review a motion to
23 dismiss for state procedural default); Hillery v. Pulley, 533
24 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).

Thus, a

25 respondent may file a motion to dismiss after the Court orders the
26 respondent to respond, and the Court should use Rule 4 standards to
27 review a motion to dismiss filed before a formal answer.
28 Hillery, 533 F. Supp. at 1194 & n.12.
2

See,

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

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

The

3 material facts pertinent to the motion are mainly to be found in
4 copies of the official records of state judicial proceedings which
5 have been provided by Respondent and Petitioner, and as to which
6 there is no factual dispute.

Because Respondent has not filed a

7 formal answer, and because Respondent's motion to dismiss is similar
8 in procedural standing to a motion to dismiss for failure to exhaust
9 state remedies or for state procedural default, the Court will
10 review Respondent’s motion to dismiss pursuant to its authority
11 under Rule 4.
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II.

Background

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In the Superior Court of the State of California, County of

14 Kern (KCSC), Petitioner was convicted of murder, three counts of
15 attempted murder, and discharge of a firearm at an occupied vehicle
16 with enhancements for prior convictions.

On December 18, 2008,

17 Petitioner was sentenced to life without the possibility of parole
18 for the murder, an indeterminate term of 117 years to life, and a
19 determinate term of twenty-one years.

(LD 1; LD 2, 2.)1

On March 16, 2010, in case number F056825, the Court of Appeal

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21 of the State of California, Fifth Appellate District (CCA) modified
22 the sentence on the enhancements but otherwise affirmed on appeal
23 the judgment of conviction and sentence.

(LD 2, 40.)

The

24 California Supreme Court (CSC) summarily denied Petitioner’s
25 petition for review on June 30, 2010, without a statement of
26 reasoning or authority.

(LD 4.)

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“LD” refers to documents lodged by the Respondent in support of the motion to
dismiss.

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1

Petitioner’s petition for writ of habeas corpus was stamped

2 filed in the KCSC as of June 28, 2011.

The date next to the

3 signature on the petition form and on Petitioner’s proof of service
4 of the petition by mail is June 6, 2011.
5 page.)

The KCSC denied the petition on August 10, 2011, in a

6 reasoned decision.
7

(LD 5 at iv, and final

(LD 6.)

Petitioner’s petition for writ of habeas corpus was filed in

8 case number F063482 in the CCA and stamped filed in that court on
9 October 14, 2011.

(LD 7, i.)

The date next to Petitioner’s

10 signature on the petition is October 6, 2011.

(Id. at six.)

11 Petitioner’s proof of service of the petition by mail is also dated
12 October 6, 2011.

(LD 7, final page.)

On November 21, 2011, the CCA

13 summarily denied the petition without a statement of reasoning or
14 authority.
15

(LD 8.)

Petitioner’s petition for writ of habeas corpus was stamped

16 filed in the CSC in case number S199665 on January 25, 2012.
17 i.)

(LD 9,

The date next to Petitioner’s signature on the petition and on

18 Petitioner’s proof of service of the petition by mail is January 17,
19 2012.

(LD 9, iiii and following page.)

20 on May 16, 2012.
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The CSC denied the petition

(LD 10.)

Petitioner’s petition for writ of habeas corpus filed in the

22 instant action was stamped filed on October 9, 2012.

(Doc. 1, 1.)

23 The date next to Petitioner’s signature on the petition form and on
24 Petitioner’s proof of service of the petition by mail is September
25 28, 2012.

(Id. at 7, 116.)

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III.

Timeliness of the Petition

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The AEDPA provides a one-year period of limitation in which a

28 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 –
(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;
(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 filing by 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 judgment or claim is pending
shall not be counted toward any period of limitation
under this subsection.

20 28 U.S.C. § 2244(d).
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A.

Commencement of the Limitations Period

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

23 imposed on the petitioner.
24 (2007).

Burton v. Stewart, 549 U.S. 147, 156-57

The last sentence was imposed on Petitioner on December 18,

25 2008.
26

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

27 conclusion of direct review or the expiration of the time for
28 seeking such review in the highest court from which review could be
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1 sought.

Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001).

2 The statute commences to run pursuant to § 2244(d)(1)(A) upon either
3 1) the conclusion of all direct criminal appeals in the state court
4 system, followed by either the completion of certiorari proceedings
5 before the United States Supreme Court, or 2) if certiorari was not
6 sought, then by the conclusion of all direct criminal appeals in the
7 state court system followed by the expiration of the time permitted
8 for filing a petition for writ of certiorari.

Wixom, 264 F.3d at

9 897 (quoting Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998),
10 cert. denied, 525 U.S. 1187 (1999)).

Neither party has indicated

11 that Petitioner sought certiorari from the United States Supreme
12 Court.
13

Here, Petitioner’s direct criminal appeals in the state court

14 system concluded when his petition for review was denied by the
15 California Supreme Court on June 30, 2010.
16 seeking certiorari was ninety days.

The time permitted for

Supreme Court Rule 13; Porter

17 v. Ollison, 620 F.3d 952, 958-59 (9th Cir. 2010); Bowen v. Roe, 188
18 F.3d 1157, 1159 (9th Cir. 1999).
19

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

20 pertinent time periods.

See, Waldrip v. Hall, 548 F.3d 729, 735 n.2

21 (9th Cir. 2008), cert. denied, 130 S.Ct. 2415 (2010).

Applying Fed.

22 R. Civ. P. 6(a)(1)(A), the day of the triggering event is excluded
23 from the calculation.

Thus, the ninety-day period commenced on July

24 1, 2010, the day following the California Supreme Court’s denial of
25 review.

Further applying Rule 6(a)(1)(A), which requires counting

26 every day, the ninetieth day was September 28, 2010.

Thus, the

27 judgment became final within the meaning of § 2244(d)(1)(A) on
28 September 28, 2010.
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1

Therefore, the limitation period began to run on the following

2 day, September 29, 2010, and, absent any tolling, concluded one year
3 later on September 28, 2011.
B.

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Statutory Tolling

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

6 a properly filed application for State post-conviction or other
7 collateral review with respect to the pertinent judgment or claim is
8 pending shall not be counted toward” the one-year limitation period.
9 28 U.S.C. § 2244(d)(2).
10

An application for collateral review is “pending” in state

11 court “as long as the ordinary state collateral review process is
12 “in continuance”- i.e., “‘until the completion of’ that process.”
13 Carey v. Saffold, 536 U.S. 214, 219-20 (2002).

In California, this

14 generally means that the statute of limitations is tolled from the
15 time the first state habeas petition is filed until the California
16 Supreme Court rejects the petitioner’s final collateral challenge,
17 as long as the petitioner did not “unreasonably delay” in seeking
18 review.

Id. at 221-23; accord, Nino v. Galaza, 183 F.3d 1003, 1006

19 (9th Cir. 1999).
20

The statute of limitations is not tolled from the time a final

21 decision is issued on direct state appeal and the time the first
22 state collateral challenge is filed because there is no case
23 “pending” during that interval.

Nino v. Galaza, 183 F.3d at 1006;

24 see, Lawrence v. Florida, 549 U.S. 327, 330-33 (2007) (holding that
25 the time period after a state court’s denial of state post26 conviction relief and while a petition for certiorari is pending in
27 the United States Supreme Court is not tolled because no application
28 for state post-conviction or other state collateral review is
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1 pending).
2

Here, the limitation period commenced on September 29, 2010.

3 Although Petitioner’s first state habeas petition was stamped filed
4 in the KCSC on June 28, 2011, the date the petition was signed was
5 June 6, 2011.
6

Habeas Rule 3(d) provides that a paper filed by a prisoner is

7 timely if deposited in the institution’s internal mailing system on
8 or before the last day for filing.

The rule requires the inmate to

9 use the custodial institution’s system designed for legal mail;
10 further, timely filing may be shown by a declaration in compliance
11 with 28 U.S.C. § 1746 or by a notarized statement setting forth the
12 date of deposit and verifying prepayment of first-class postage.
13 Id.

Habeas Rule 3(d) reflects the “mailbox rule,” initially

14 developed in case law, pursuant to which a prisoner's pro se habeas
15 petition is "deemed filed when he hands it over to prison
16 authorities for mailing to the relevant court.”

Houston v. Lack,

17 487 U.S. 266, 276 (1988); Huizar v. Carey, 273 F.3d 1220, 1222 (9th
18 Cir. 2001).
19 alike.

The mailbox rule applies to federal and state petitions

Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010)

20 (citing Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003),
21 and Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)).

The

22 mailbox rule, liberally applied, in effect assumes that absent
23 evidence to the contrary, a legal document is filed on the date it
24 was delivered to prison authorities, and a petition was delivered on
25 the day it was signed.

Houston v. Lack, 487 U.S. at 275-76; Roberts

26 v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); Campbell v.
27 Henry, 614 F.3d 1058-59; Lewis v. Mitchell, 173 F.Supp.2d 1057, 1058
28 n.1 (C.D.Cal. 2001).

The date a petition is signed may be inferred
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1 to be the earliest possible date an inmate could submit his petition
2 to prison authorities for filing under the mailbox rule.

Jenkins v.

3 Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003), overruled on other
4 grounds, Pace v. DiGuglielmo, 544 U.S. 408 (2005).

However, if

5 there is a long delay between the alleged mailing and receipt by a
6 court, a district court may attribute the discrepancy to various
7 causes, including the court, the postal service, the prison
8 authorities, or the prisoner himself.

See, Koch v. Ricketts, 68

9 F.3d 1191, 1193 n.3 (9th Cir. 1995) (concerning analogous Fed. R.
10 App. P. 4(c)).
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Here, the date on the petition form next to the signature and

12 on the proof of service is June 6, 2011.

Respondent has not

13 introduced any evidence to rebut the presumption of the mailbox rule
14 that the date of signature was the date of delivery of the petition
15 to prison authorities for mailing.
16 the mailbox rule.

The Court will liberally apply

It is concluded that pursuant to the mailbox

17 rule, Petitioner constructively filed the petition in the KCSC on
18 June 6, 2011.
19

Thus, the statutory limitations period ran from September 29,

20 2010, until the constructive filing of the first state habeas
21 petition on June 6, 2011, for a total of 250 days.
22

Respondent does not argue that any of Petitioner’s three state

23 habeas petitions was improperly filed or that there was unreasonable
24 delay between the filing of the various petitions.
25 6.)

(Doc. 17, 4:5-

Although the time after the finality of the state appellate

26 proceedings and before the filing of the first state habeas petition
27 in the KCSC was not tolled, Petitioner is entitled to tolling for
28 the period of time during which the first state habeas petition was
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1 pending from June 6, 2011, through August 10, 2011, the date the
2 KCSC denied the petition, for sixty-six (66) days.
3

In Carey v. Saffold, 536 U.S. 214, the Court liberally

4 construed the term “pending” in § 2244(d)(2) to mean that in the
5 absence of undue delay, an application for post-conviction relief is
6 pending not only between filing and denial, but also during the gaps
7 or “intervals between a lower court decision and a filing of a new
8 petition in a higher court” and until the California Supreme Court
9 denies review.

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

10 1048 (9th Cir. 2003).

Here, in filing his state habeas petitions,

11 Petitioner was proceeding up the hierarchy of state courts with his
12 claims.

Thus, Petitioner is entitled to “gap” tolling for the

13 period between the denial of his KCSC petition on August 10, 2011,
14 and the filing of his habeas petition in the CCA in October 2011, a
15 period of fifty-six (56) days.
16

Pursuant to the mailbox rule, and in the absence of any

17 evidence to rebut the controlling presumption, Petitioner
18 constructively filed his petition in the CCA on the date he signed
19 the petition, namely, October 6, 2011.

Petitioner is entitled to

20 statutory tolling for the period of the pendency of the petition
21 from October 6, 2011, until November 21, 2011, the date the petition
22 was denied, for a period of forty-seven (47) days.

In addition,

23 Petitioner is entitled to “gap” tolling between the CCA’s denial of
24 the petition and Petitioner’s filing of a petition in the CSC for a
25 period of fifty-six (56) days.
26

Pursuant to the mailbox rule, and in the absence of evidence to

27 rebut the presumption, Petitioner constructively filed his petition
28 in the CSC on January 17, 2012, the date of signature on the
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1 petition and the proof of service.

Petitioner is entitled to

2 statutory tolling while the petition was pending in the CSC from
3 January 17, 2012, until May 16, 2012, the date the petition was
4 denied by the CSC, for a period of 121 days.
5

In summary, the statutory limitations period ran for 250 days

6 from September 29, 2010, through June 5, 2011, before the first
7 state petition was filed.

The statute was tolled during the

8 pendency of state habeas proceedings and the gaps between those
9 proceedings from June 6, 2011, until May 16, 2012.

When the

10 statutory period began running again on May 17, 2012, after the
11 denial of the CSC petition, 115 days of the limitations period
12 remained.

The limitations period expired 115 days later on

13 September 8, 2012.
14

Petitioner’s federal petition was stamped filed here on October

15 9, 2012.

(Doc. 1, 1.)

The petition form and the proof of deposit

16 of the petition in the United States mail were dated September 28,
17 2012 (doc. 1, 7, 116).

What appears to be the outgoing mail log for

18 Petitioner’s legal mail reflects that legal mail from the prison was
19 sent out to the Clerk of this Court on October 4, 2012.
20 26.)

(Doc. 22,

Petitioner states in his opposition that Petitioner “proceeded

21 and sent/submited (sic) federal habeas On October 4, 2012, but I
22 assume due too (sic) mail delay petition did not get filed until
23 October, 9, 2012, 35 days over Petitioner’s required deadline.”
24 (Doc. 19, 2.)

There is no evidence before the Court concerning the

25 protocol for prison mailing and the dating of mail logs.

It is not

26 clear whether or not the date a prisoner deposits outgoing mail for
27 mailing is the same date that the log reflects that mail went out.
28 The Court notes that in other instances, there is a short time
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1 interval between the date Petitioner states that he mailed legal
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2 mail and the date noted on the mail log.

Petitioner’s declaration

3 under penalty of perjury is clear that he deposited the petition for
4 mailing on the same date that he signed the petition.

Liberally

5 applying the mailbox rule, the Court concludes that the petition was
6 constructively filed here on the date the petition was signed,
7 namely, September 28, 2012.
Thus, the petition was constructively filed twenty days after

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9 the limitations period expired on September 8, 2012.
C.

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Equitable Tolling

Petitioner argues that the timely filing of his petition was

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12 prevented by extraordinary circumstances beyond his control,
13 including 1) the delayed notification of the CSC’s denial of his
14 habeas petition due to Petitioner’s transfer to a new institution;
15 2) obstructed or limited access to the law library combined with
16 Petitioner’s lack of education; and 3) loss of Petitioner’s legal
17 property, including transcripts and other portions of the state
18 court record, in an effort to obtain counsel that preceded the
19 filing of the federal petition.

Petitioner argues that he was

20 diligent in his attempts to file a timely petition.
The one-year limitation period of § 2244 is subject to

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For example, Petitioner declared under penalty of perjury that he boxed and

24 addressed documents to an attorney and completed procedures for sending legal mail
on August 7, 2012, but the mail log reflects a date of August 14, 2012. (Doc. 2,
Likewise, Petitioner’s consent form filed here on January 14,
2013, is dated December 20, 2012, but the outgoing mail log of mail to the Clerk
of this Court reflects a date of December 24, 2012. (Doc. 9; doc. 22, 26.)
Petitioner declares under penalty of perjury that he deposited a motion for
mailing on April 16, 2013 (doc. 19, 4), whereas it was logged as outgoing on the
mail log on April 18, 2012 (doc. 22, 26). Because keeping a mail log is generally
performed by prison staff, there is no basis for assuming that Petitioner had
control over the mail procedures or the precise dates recorded on the mail log.

25 5; doc. 22, 26.)
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1 equitable tolling where the petitioner shows that he or she has been
2 diligent, and extraordinary circumstances have prevented the
3 petitioner from filing a timely petition.

Holland v. Florida, –

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

Petitioner bears the

5 burden of showing the requisite extraordinary circumstances and
6 diligence.

Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010).

7 A petitioner must provide specific facts regarding what was done to
8 pursue the petitioner’s claims to demonstrate that equitable tolling
9 is warranted.

Roy v. Lampert, 465 F.3d 964, 973 (9th Cir. 2006).

10 Conclusional allegations are generally inadequate.
11 Dexter, 649 F.Supp.2d 1055, 1061-62 (C.D.Cal. 2009).

Williams v.
The petitioner

12 must show that the extraordinary circumstances were the cause of his
13 untimeliness and that the extraordinary circumstances made it
14 impossible to file a petition on time.
15 993, 997 (9th Cir. 2009).

Ramirez v. Yates, 571 F.3d

Where a prisoner fails to show any causal

16 connection between the grounds upon which he asserts a right to
17 equitable tolling and his inability to timely file a federal habeas
18 application, the equitable tolling claim will be denied.
19 Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005).

Gaston v.

A prisoner’s or

20 counsel’s failure to recognize that a state filing was unreasonably
21 delayed under California law is not the result of an “external
22 force” that rendered timeliness impossible, but rather is
23 attributable to the petitioner as the result of his own actions.
24 Velasquez v. Kirkland, 639 F.3d 964, 969 (9th Cir. 2011).
25

The diligence required for equitable tolling is reasonable

26 diligence, not “maximum feasible diligence.”
27 130 S.Ct. at 2565.

Holland v. Florida,

However, “the threshold necessary to trigger

28 equitable tolling [under AEDPA] is very high, lest the exceptions
13

1 swallow the rule.”

Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.

2 2003) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.
3 2002)).

A petitioner seeking equitable tolling must demonstrate

4 reasonable diligence while exhausting state court remedies as well
5 as while attempting to file a federal petition during the period
6 after the extraordinary circumstances began.
7 F.3d at 971.

Roy v. Lampert, 465

The effort required is what a reasonable person might

8 be expected to deliver under his or her particular circumstances.
9 Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011).

Because a pro se

10 petitioner’s habeas filings must be construed with deference, a
11 court will construe liberally such a petitioner’s allegations
12 regarding diligence.
13

Roy v. Lampert, 465 F.3d at 970.

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

14 reached a final resolution of his case can provide grounds for
15 equitable tolling if the prisoner has acted diligently in the
16 matter.

Ramirez v. Yates, 571 F.3d at 997; White v. Ollison, 530

17 F.Supp.2d 1077, 1083-84 (C.D.Cal. 2007) (finding the statute
18 equitably tolled for approximately two and one-half months between
19 the superior court’s denial of the petitioner’s habeas petition and
20 the date on which the petitioner received notice of the court’s
21 denial, and collecting authorities); Lewis v. Mitchell, 173
22 F.Supp.2d 1057, 1061-62 (C.D.Cal. 2001) (finding the statute
23 equitably tolled for the period following a court’s ruling and the
24 petitioner’s receipt of notice of it, where the petitioner had not
25 been notified of the state supreme court’s denial of her habeas
26 petition for more than five months after the denial because the
27 prison returned the mailed notification of the denial to the state
28 supreme court because the prisoner’s prison number did not appear on
14

1 the envelope, despite the petitioner’s having provided her prisoner
2 number to the court); Lopez v. Scribner, 2008 WL 2441362, *7-*9 (No.
3 CV 07-6954-ODW (JTL), C.D.Cal. Apr. 11, 2008) (assuming that the
4 statute was equitably tolled during the time between a court’s
5 denial of a first state habeas petition and the date the petitioner
6 learned of the denial, where the petitioner did not receive notice
7 of the court’s September 2006 denial of a petition filed in August
8 2006 until the petitioner sought a ruling in February 2007, and the
9 delay made it impossible for the petitioner to file a timely federal
10 habeas petition).

To determine whether a petitioner is entitled to

11 such tolling, it must be determined on what date the petitioner
12 received notice, whether the petitioner acted diligently to receive
13 notice, and whether the alleged delay of notice caused the
14 untimeliness of the filing and made a timely filing impossible.
15 Ramirez v. Yates, 571 F.3d at 998.
16

Petitioner submitted a declaration after he filed his

17 opposition documents in which he stated that the contents of the
18 “foregoing” documents were true under penalty of perjury under the
19 laws of the state of California, and he identified his opposition
20 documents (styled as motions) as the documents to which his
21 declaration should be attached.
22

(Doc. 21, 1-2.)

Further, he has submitted documents that corroborate his

23 allegations concerning the delay and his diligent efforts to follow
24 up concerning the state habeas petition that was denied on May 16,
25 2012.

Respondent has not refuted the showing or otherwise

26 challenged Petitioner’s showing.
27

Petitioner states that he arrived at the California State

28 Prison in Los Angeles County (CSP-LAC) on May 24, 2012.
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The Court

1 takes judicial notice of the docket and documents filed in Stefan E.
2 Evans v. Unknown, case number 2:11-cv-1018-GGH, a proceeding
3 previously filed by Petitioner in the Sacramento division of this
4 Court, in which on March 14, 2011, Petitioner sought an extension of
5 time to file a federal petition.

(Doc. 1.)3

The address of

6 Petitioner set forth on the request for an extension of time was
7 Kern Valley State Prison, Delano, California.

(Id. at 1, 3.)

Thus,

8 Petitioner previously was located at a prison other than CSP-LAC.
9 Further, in the present proceeding, Petitioner also submitted a copy
10 of a “CDCR Inmate ID,” with the date of May 24, 2012, an address of
11 “CALIFORNIA STATE PRISON,” and Petitioner’s CDCR identification
12 number on it.

(Doc. 19, ex. A, 6.)

It thus appears that Petitioner

13 arrived at the CSP-LAC on May 24, 2012.
Petitioner states that because of his transfer to a new prison,

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15 he did not receive notification of the CSC’s denial of his petition
16 until on or about June 15, 2012.

(Doc. 22, 7.)

Petitioner

17 submitted a copy of the front of an envelope addressed to Petitioner
18 at the “CA State Prison, Los Angeles Co.” in Lancaster, California,
19 with a partially missing postmark but which includes the word “MAY.”
20 The notation “not here” appears in handwritten script on the
21 envelope as well as the figures “B1 228.”

(Petr.’s Ex. A, Doc. 19,

22 6.)
The Court takes judicial notice of a request for an extension

23

24 of time to file a federal petition filed on July 2, 2012, in Stefan
25 E. Evans v. Unknown, case number 2:11-cv-1018-GGH, in which
26
27
28

3

The Court may take judicial notice of court records. Fed. R. Evid. 201(b);
United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise
Cascade Corp., 80 F.R.D. 626, 635 n.1 (N.D. Cal. 1978), aff’d., 645 F.2d 699 (9th
Cir. 1981).

16

1 Petitioner stated that after a delayed bed space assignment due to
2 temporary placement in an administrative segregation unit because of
3 overcrowding, he was finally housed in a mainline facility and
4 informed the CSC of his new address and location; days following, he
5 received the denial via re-routed mail.

(Doc. 8, 2.)

Petitioner

6 appended to the request a copy of a letter written by Petitioner to
7 the clerk of the CSC dated June 5, 2012, in which Petitioner
8 informed the CSC of his new address and case number.

The document

9 bears a stamp stating “RECEIVED JUN 11 2012 CLERK SUPREME COURT.”
10 (Id. at 4.)

Petitioner also submitted to this Court a copy of what

11 appears on its face to be a log of outgoing mail that reflects that
12 mail from Petitioner was sent from the prison to the CSC at San
13 Francisco, California, on June 7, 2012.

(Doc. 22, 18.)

Further,

14 what appears to be a copy of an incoming mail log reflects that
15 Petitioner received mail from the CSC in San Francisco on June 15,
16 2012; the log states that Petitioner’s yard and housing were “B1”
17 and “228” respectively.

A check of the docket in CSC case number

18 S199665 show no entries other than the filing of the petition and
19 the denial order.
20

Petitioner’s documentation shows that less than two weeks after

21 his arrival at CSP-LAC, Petitioner notified the CSC of his new
22 address in a letter that referred to his case number, adverted to
23 the Petitioner’s uncertainty as to whether or not the court had sent
24 any mail to his last address, and asked that all current and future
25 mail be forwarded to the new address.

This post-move follow-up by

26 Petitioner with respect to his address and the pendency of his
27 petition was prompt.

It appears that Petitioner proceeded with

28 reasonable diligence in advising the CSC of his new location and
17

1 indicating his uncertainty as to the status of the case and the
2 possibility of undelivered mail.

Further, it may be inferred that

3 Petitioner received the CSC’s denial on June 15, 2012, thirty (30)
4 days after the date the CSC filed its order of denial.
5

Further events in the chronology leading to the filing of the

6 petition here will be considered in determining whether Petitioner
7 has shown that the delay of approximately one month in his receipt
8 of notification from the CSC actually caused Petitioner to be unable
9 to file the petition here on time.

As previously noted, in the

10 previous proceeding in this Court, Petitioner renewed his motion for
11 an extension of time to file a federal petition on July 2, 2012,
12 after the first extension of time had been dismissed without
13 prejudice.

(Evans v. Unknown, 2:11-cv-01018-GGH, doc. 8, 6.)

By

14 order dated July 31, 2012, the Court denied the motion and stated
15 that the motion would be placed in the file and disregarded; the
16 order was served by mail on Petitioner on the same date.
17 doc. 9.)

(Id. at

Thus, it appears that within two weeks of having received

18 notice of the CSC’s denial, Petitioner had prepared and filed a
19 request for an extension of time from the Sacramento Division of
20 this Court.
21

Petitioner states that after the request for an extension of

22 time was denied, he sought legal counsel and attempted to retain
23 attorney Richard R. Williams, making “verbal contact” on or about
24 August 1, 2012.

(Doc. 19, 2.)

In a motion for an extension of time

25 that was stamped as filed in this action on October 9, 2012,
26 Petitioner declared under penalty of perjury that on August 7, 2012,
27 he boxed up his only copy of all his trial transcripts, briefs,
28 petitions, appeal documents, and excess legal paperwork and
18

1 addressed it to Mr. Williams, an attorney, at a specified address
2 after having gone through all required protocol to send legal mail,
3 including trust account authorization for the proper mailing fee.
4 (Doc. 2, 5.)

He informed his family, who were asked to correspond

5 with Williams and confirm that the mail was delivered, but efforts
6 to contact the prison, post offices, and Williams were unsuccessful,
7 and the mail did not arrive at Mr. Williams’ office; as of September
8 28, 2012, the date of the declaration, Mr. Williams had not received
9 the papers.

(Id.)

The outgoing legal mail log indicates that on

10 August 14, 2012, legal mail from Petitioner was sent to “RICK
11 WILLIAMS ATTY AT LAW.”

(Doc. 22, 26.)

In this action, Petitioner

12 also submitted 1) a copy of his trust account statement, showing
13 that on August 16, 2012, the sum of $53.30 was withdrawn from
14 Petitioner’s trust account for legal mail (doc. 22, 22); and 2)
15 copies of documentation of his inmate institutional appeal regarding
16 the loss of his legal mail (doc. 22, 12-24).
17

It thus appears that after his unsuccessful attempt in July

18 2012 to obtain an extension of time from this Court to file a
19 federal petition, Petitioner immediately sought to secure counsel to
20 prepare the petition, including an effort to send his legal papers
21 to the attorney in early August.

Petitioner followed up with family

22 and the institution when it appeared that the legal papers sent to
23 the attorney had been lost.

Petitioner states that two or three

24 weeks after he sent the documents to Williams, he realized that all
25 was lost and that he had no choice but to begin preparation of the
26 federal habeas petition without a single copy of his documents.
27 (Doc. 19, 2.)
28

Thus, considering all the documentation, it appears that after
19

1 unsuccessfully attempting to secure counsel, Petitioner began
2 preparation of the petition in earnest in early September 2012.

He

3 continued to demonstrate concern with the timeliness of his petition
4 in late September when he again sought an extension of time to file
5 the petition.
6

With respect to the period in September 2012 when Petitioner

7 was attempting to complete his petition, Petitioner states generally
8 that there was an abundance of paperwork (the petition submitted to
9 this Court is 116 pages long) in addition to institutional lockdowns
10 and minimal law library access.

Petitioner states that it was thus

11 nearly impossible for Petitioner to make copies of all the
12 paperwork; however, Petitioner proceeded.

(Doc. 19, 2.)

A review

13 of the petition filed in this Court reflects that it is an amalgam
14 of the material in Petitioner’s habeas petition filed in the CSC and
15 the issues raised in his direct appeal from the judgment.
16

Petitioner’s pro se status is not itself an extraordinary

17 circumstance.
18 2010.)

Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir.

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

19 not alone a circumstance warranting equitable tolling.
20 Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).

Rasberry v.

Further, limited

21 access to a law library and a copy machine has in some circumstances
22 been characterized as a routine restriction of prison life and not
23 necessarily an extraordinary circumstance that renders timely filing
24 impossible.

See, Ramirez v. Yates, 571 F.3d at 998 (where the

25 petitioner was housed in administrative segregation with limited law
26 library access and associated routine security restrictions).
27

However, in other circumstances, it has been held that denial

28 of access to legal papers where there is only a very short portion
20

1 of the limitations period remaining can in fact render timely filing
2 by a pro se petitioner impossible.

Lott v. Mueller, 304 F.3d 918,

3 922-23 (9th Cir. 2002) (remanding the matter for a determination of
4 entitlement to equitable tolling where a petition was untimely for
5 seven or twenty days, depending on the applicability of the mailbox
6 rule; the computation of the filing deadline was difficult and
7 uncertain even for informed legal minds; and the petitioner was
8 without access to his legal papers for weeks and received them under
9 circumstances that he could have believed that he had only six days
10 remaining in which to file a timely petition); Spitsyn v. Moore, 345
11 F.3d at 801 (holding that an expectation that a prisoner will
12 prepare a pro se habeas petition is unrealistic where the petitioner
13 is without his legal papers due to counsel’s possession of them and
14 has been diligent in attempting to secure those papers); see, Sossa
15 v. Diaz, - F.3d -, 2013 WL 4792941, *8-*9 (No. 10-56104, 9th Cir.
16 Sept. 10, 2013) (remanding the case for a determination of
17 entitlement to equitable tolling where a petition was filed two days
18 late, and the petitioner had alleged that despite attempts to grieve
19 limited law library access, he was unable to use the prison’s law
20 library and copier successfully due to lock-downs, prison staff’s
21 loss of paperwork, and copy machine malfunction).
22

Here, it appears that throughout the period in which Petitioner

23 filed his collateral state challenges, Petitioner diligently
24 proceeded.

Petitioner’s transfer to a new institution, the

25 relatively lengthy delay in notification of the state court’s denial
26 of his habeas petition, the apparent loss of his legal papers in the
27 mail en route to potential counsel, the attendant impossibility of
28 obtaining counsel, and the relatively short period of time remaining
21

1 for preparation of a federal petition when these circumstances
2 converged at the end of the limitations period all combined to
3 prevent timely filing.

The present case appears to be a situation

4 comparable to that recognized in Lott v. Mueller, 304 F.3d 923-24,
5 in which a “confluence of numerous factors” beyond a prisoner’s
6 control contributed to render timely filing impossible.
7 24.

Id. at 923-

The period during which various circumstances operated to

8 impede Petitioner’s progress in the present case exceeds in length
9 the twenty days that passed between the running of the statute and
10 Petitioner’s filing of his federal petition.

The Court is mindful

11 that the impossibility requirement should not be too strictly
12 imposed because imposing extraordinarily high evidentiary standards
13 on pro se prisoner litigants is contrary to the “grain” of our
14 precedent in light of the unusual and unique obstacles faced by pro
15 se prisoner litigants, such as difficulty in obtaining
16 representation by counsel, limitations in access to legal materials
17 and proof, and other obstacles to complying with procedural
18 deadlines.

Sossa v. Diaz, 2013 WL 4792941 at *9; see, Rand v.

19 Rowland, 154 F.3d 952, 958 (9th Cir. 1998).
20

The Court concludes that the documentation before the Court

21 shows that Petitioner is entitled to equitable tolling of the
22 statute of limitations sufficient to render his petition timely.
23

Accordingly, it will be recommended that Respondent’s motion to

24 dismiss the petition as untimely be denied.
25

IV.

Petitioner’s Motions

26

Petitioner’s opposition to the motion to dismiss came styled as

27 a motion to excuse harmless negligence and motion to appoint counsel
28 (doc. 19), a declaration regarding his motion to appoint counsel
22

1 (doc. 21), and supplementary opposition (doc. 22).

By separate

2 order the Court has deemed the Petitioner’s motion to be in part
3 opposition to the motion to dismiss and in part a motion for
4 counsel.

The motion for counsel was denied by separate order.

5 Petitioner’s motions have been considered fully as opposition to the
6 motion to dismiss.

Accordingly, it will be recommended that

7 Petitioner’s motions be dismissed as moot.
8

V.

9

In accordance with the foregoing, it is RECOMMENDED that:

10

Recommendations

1) Respondent’s motion to dismiss the petition as untimely be

11 DENIED; and
12

2) Petitioner’s motions be DISMISSED as moot; and

13

3) The matter be REFERRED back to the Magistrate Judge for

14 further proceedings, including directing Respondent to file an
15 answer to the petition.
16

These findings and recommendations are submitted to the United

17 States District Court Judge assigned to the case, pursuant to the
18 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
19 Rules of Practice for the United States District Court, Eastern
20 District of California.

Within thirty (30) days after being served

21 with a copy, any party may file written objections with the Court
22 and serve a copy on all parties.

Such a document should be

23 captioned AObjections to Magistrate Judge=s Findings and
24 Recommendations.@

Replies to the objections shall be served and

25 filed within fourteen (14) days (plus three (3) days if served by
26 mail) after service of the objections.

The Court will then review

27 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
28 The parties are advised that failure to file objections within the
23

1 specified time may waive the right to appeal the District Court=s
2 order.

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

3
4 IT IS SO ORDERED.
5
6

Dated:

/s/ Barbara

September 13, 2013

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

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