Chappell v. Gipson

Filing 29

FINDINGS and RECOMMENDATIONS recommending that 15 Respondent's Motion to Dismiss the Petition as Untimely be GRANTED re 1 Petition, signed by Magistrate Judge Barbara A. McAuliffe on 2/27/2014. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 REX CHAPPELL,

Case No. 1:13-cv-00892-LJO-BAM-HC

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FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT‟S MOTION TO
DISMISS THE PETITION (DOC. 15),
DISMISS THE PETITION AS UNTIMELY
(DOC. 1), ENTER JUDGMENT FOR
RESPONDENT, AND DECLINE TO ISSUE A
CERTIFICATE OF APPEALABILITY

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Petitioner,
v.

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15 CONNIE GIPSON,
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Respondent.

OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a state prisoner proceeding pro se and in forma

20 pauperis with a petition for writ of habeas corpus pursuant to 28
21 U.S.C. § 2254.

The matter has been referred to the Magistrate Judge

22 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.

23 Pending before the Court is the Respondent‟s motion to dismiss the
24 petition as untimely and as failing to state facts entitling
25 Petitioner to relief in a proceeding pursuant to § 2254.

The motion

26 was filed on November 12, 2013, with supporting exhibits.
27 Petitioner filed opposition on January 21, 2014; Respondent filed a
28 reply on January 30, 2014; and Petitioner filed an unsolicited sur1

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1 reply on February 7, 2014.

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I.

Proceeding by a Motion to Dismiss

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Respondent has filed a motion to dismiss the petition on the

4 ground that Petitioner filed his petition outside of the one-year
5 limitation period provided for by 28 U.S.C. § 2244(d)(1).
Rule 4 of the Rules Governing Section 2254 Cases in the United

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7 States District Courts (Habeas Rules) allows a district court to

8 dismiss a petition if it “plainly appears from the face of the
9 petition and any exhibits annexed to it that the petitioner is not
10 entitled to relief in the district court....”
The Ninth Circuit has allowed respondents to file motions to

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12 dismiss pursuant to Rule 4 instead of answers if the motion to
13 dismiss attacks the pleadings by claiming that the petitioner has
14 failed to exhaust state remedies or has violated the state‟s
15 procedural rules.

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

16 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss a
17 petition for failure to exhaust state remedies); White v. Lewis, 874
18 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to review a motion to
19 dismiss for state procedural default); Hillery v. Pulley, 533
20 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).

Thus, a

21 respondent may file a motion to dismiss after the Court orders the
22 respondent to respond, and the Court should use Rule 4 standards to

23 review a motion to dismiss filed before a formal answer.

See,

24 Hillery, 533 F. Supp. at 1194 & n.12.
In this case, Respondent‟s motion to dismiss addresses the

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

The

27 material facts pertinent to the motion are found in copies of the
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Respondent has not objected to the sur-reply.

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1 official records of state judicial proceedings which have been
2 provided by Respondent and Petitioner, and as to which there is no
3 factual dispute.

Because Respondent has not filed a formal answer,

4 and 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 Habeas Rule 4.
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II.

Background

Documentation attached to the petition shows that as of

11 February 10, 2012, Petitioner was serving forty-four years for
12 multiple cases from multiple counties.
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(Pet., doc. 1, 141.)

Petitioner contends that he suffered a violation of the

14 protection against ex post facto laws when the California Department
15 of Corrections and Rehabilitation (CDCR) applied to him changes to
16 Cal. Pen. Code §§ 2933 and 2933.6 that took effect on January 25,
17 2010.

The new law prohibited inmates who were in a security housing

18 unit because of validation as a gang member or commission of violent
19 offenses from earning credits pursuant to Cal. Pen. Code § 2933 or
20 2933.05 during the time they were so housed.

Petitioner alleges

21 that he was validated as a member of a prison gang in April 2010 and
22 that the prison increased the duration of his term by five years

23 based on the new statute. (Id. at 21, 7-8.)

Petitioner also alleges

24 that the application of the statute to a prisoner such as Petitioner
25 who committed his commitment offenses before the enactment of the
26 new statute constitutes double jeopardy and violates his rights to
27 equal protection of the law and a jury trial.

Petitioner also

28 argues that the state legislature did not intend for the new statute
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1 to apply to Petitioner.

Petitioner complains that it changed

2 Petitioner‟s ability to earn credit and caused the CDCR to take
3 credit that Petitioner had already earned over his thirty-one years
4 of incarceration.

(Id. at 8.)

Petitioner claims that the time was

5 taken without his being told and without his having the right to
6 present his views in a classification committee hearing or to be
7 heard; rather, Petitioner was simply mailed a new calculation

8 worksheet.

Petitioner further complains that although a state court

9 ordered credit of about 1,906 days restored to him, it was not done.
10 (Id. at 13.)

He also claims a violation of ex post facto principles

11 based on application to him of a post-offense state court decision
12 making sentences for offenses committed in prison fully consecutive
13 to the commitment offense/s.
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In the motion to dismiss the petition, Respondent contends that

15 Petitioner‟s petition was untimely filed, and in any event the facts
16 alleged in the petition do not entitle Petitioner to relief in a
17 proceeding pursuant to § 2254.

Petitioner alleges that he is

18 entitled to tolling of the statute of limitations and that he
19 suffered a violation of rights protected by the Ex Post Facto
20 Clause.
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III.

Timeliness of the Petition
A.

The Running of the Statute of Limitations

Because the petition was filed after April 24, 1996, the

24 effective date of the Antiterrorism and Effective Death Penalty Act
25 of 1996 (AEDPA), the AEDPA applies to the petition.

Lindh v.

26 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
27 1499 (9th Cir. 1997).
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The AEDPA provides a one-year period of limitation in which a
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1 petitioner must file a petition for writ of habeas corpus.
2 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;

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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 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 appicable 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.

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28 U.S.C. § 2244(d).
The one-year limitation period of § 2244 applies to habeas
petitions brought by persons in custody pursuant to state court
judgments who challenge administrative decisions, such as the
decisions of state prison disciplinary authorities or parole
authorities.

Shelby v. Bartlett, 391 F.3d 1061, 1063, 1065-66

(9th Cir. 2004).

However, § 2244(d)(1)(A) is inapplicable to
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1 administrative decisions; rather, § 2244(d)(1)(D) applies to
2 petitions challenging such decisions.

Redd v. McGrath, 343 F.3d

3 1077, 1081-82 (9th Cir. 2003) (parole board determination).
Title 28 U.S.C. § 2244(d)(1)(D) provides in pertinent part that

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5 the “limitation period shall run from the latest of... the date on
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which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.”

Thus,

under § 2244(d)(1)(D), the statute of limitations begins to run when

10 the factual predicate of a claim “could have been discovered through
11 the exercise of due diligence,” not when it actually was discovered.
12 28 U.S.C. § 2244(d)(1)(D); Ford v. Gonzalez, 683 F.3d 1230, 1235
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(9th Cir. 2012).

The diligence required is not maximum feasible

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diligence, but rather reasonable diligence in the circumstances.
Id.

Although due diligence is measured by an objective standard, a

17 court will also consider the petitioner's particular circumstances,
18 including both impediments and resources that would affect discovery
19 of the facts, such as physical confinement, familial assistance, and
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any representations made by the government. Id. at 1235-36. A
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later accrual date results only if vital facts could not have been
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23 known by the date the appellate process ended; however, when a
24 person knows or through reasonable diligence could discover the
25 vital facts, the time starts running regardless of when the legal
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significance of the facts is actually discovered.

Id. at 1235.

A habeas petitioner has the burden to prove that he or she
exercised due diligence in discovering the factual predicate for his
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1 or her claim in order for the statute of limitations to begin
2 running from the date he or she discovered the factual predicate of
3 the claim.
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See Majoy v. Roe, 296 F.3d 770, 777 n.3 (9th Cir. 2002).

Thus, in the present case, the statute begins to run on the

5 date that the factual predicate of the claim or claims presented
6 could have been discovered through the exercise of due diligence.
7 28 U.S.C. § 2244(d)(1)(D); Redd v. McGrath, 343 F.3d at 1082.

In

8 Redd v. McGrath, the court concluded that the factual predicate of
9 the habeas claims concerning the denial of parole was the parole
10 board‟s denial of the prisoner‟s administrative appeal.
11 1082.

Id. at

In Shelby and Redd, the pertinent date was the date on which

12 notice of the decision was received by the petitioner.

Thus, the

13 statute of limitations was held to have begun running the day after
14 notice of the decision was received.

Shelby, 391 F.3d 1061, 1066;

15 Redd, 343 F.3d at 1082.
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Here, Petitioner filed an administrative grievance regarding

17 his inability to earn credits because of his housing and gang
18 validation as well as his inability to receive restored credits.

On

19 August 30, 2011, the third level appeal decision issued in which his
20 appeal was partially granted but denied insofar as Petitioner raised
21 the issues he raises in the present petition.

The decision

22 expressly stated that the decision exhausted the administrative

23 remedy available within the CDCR.

(Doc. 17-4, 8-9.)

There is no

24 evidence indicating that delivery of notice to Petitioner was
25 delayed or prevented.
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Thus, the Court concludes that the date on which the

27 factual predicate of a decision on Petitioner‟s parole could
28 have been discovered through the exercise of reasonable diligence
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1 was the date of the decision by the last level of the CDCR‟s
2 administrative remedy procedure, namely, August 30, 2011.

The

3 statute thus began running on the next day, August 31, 2011, and
4 absent any tolling, Petitioner had through August 31, 2012, to file
5 his petition here. Fed. R. Civ. P. 6(a); see, Waldrip v. Hall, 548
6 F.3d 729, 735 n.2 (9th Cir. 2008); Patterson v. Stewart, 251 F.3d
7 1243, 1245-46 (9th Cir. 2001).
Because the petition in the present case was constructively

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9 filed on May 22, 2013, the petition on its face reflects that it was

10 filed outside of the one-year limitation period.
B.

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Statutory Tolling

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The dates of filing have been computed pursuant to the mailbox rule. Habeas
Rule 3(d) provides that a paper filed by a prisoner is timely if deposited in the
institution‟s internal mailing system on or before the last day for filing. The
rule requires the inmate to use the custodial institution‟s system designed for
legal mail; further, timely filing may be shown by a declaration in compliance
with 28 U.S.C. § 1746 or by a notarized statement setting forth the date of
deposit and verifying prepayment of first-class postage. Id. Habeas Rule 3(d)
reflects the “mailbox rule,” initially developed in case law, pursuant to which a
prisoner's pro se habeas petition is "deemed filed when he hands it over to prison
authorities for mailing to the relevant court.” Houston v. Lack, 487 U.S. 266,
276 (1988); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001). 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)).
The mailbox rule, liberally applied, in effect assumes that absent evidence to the
contrary, a legal document is filed on the date it was delivered to prison
authorities, and a petition was delivered on the day it was signed. Houston v.
Lack, 487 U.S. at 275-76; Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir.
2010); Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010); Lewis v.
Mitchell, 173 F.Supp.2d 1057, 1058 n.1 (C.D.Cal. 2001). The date a 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). However, if there is a long delay between
the alleged mailing and receipt by a court, a district court may attribute the
discrepancy to various causes, including the court, the postal service, the prison
authorities, or the prisoner himself. See, Koch v. Ricketts, 68 F.3d 1191, 1193
n.3 (9th Cir. 1995) (concerning analogous Fed. R. App. P. 4(c)).
Petitioner signed the petition form and verification forms on May 22, 2013.
(Doc. 1 at 6, 28-29.)

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Petitioner argues that the running of the statute was tolled by

2 several petitions for collateral relief filed in the state courts.
1.

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Petitioner‟s Filings

On September 20, 2011, Petitioner constructively filed a

5 petition in the Superior Court of the State of California, County of
6 Kern (KCSC).

(Doc. 17-1 at 2, 7.)

The petition was denied by a

7 reasoned decision dated November 4, 2011, which a minute order

8 reflects was sent to Petitioner on the same date.
9 4.)

The KCSC also sent a copy of the denial order to Petitioner on

10 November 15, 2011.
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(Doc. 15-1 at 2-

(Doc. 26, 21.)

On September 14, 2012, Petitioner constructively filed a

12 petition for writ of habeas corpus in the Court of Appeal of the
13 State of California, Fifth Appellate District (CCA).
14 7.)

(Doc. 18-2 at

On November 26, 2012, the petition was denied, but the denial

15 was without prejudice as to Petitioner‟s ex post facto claim in the
16 event the California Supreme Court decided that prisoners in
17 Petitioner‟s circumstances had suffered an ex post facto violation
18 from the application of the 2010 amendments to Cal. Pen. Code
19 § 2933.
20

(Doc. 15-2 at 2.)

On December 12, 2012, Petitioner constructively filed a

21 petition for a writ of habeas corpus in the California Supreme Court
22 (CSC).

(Doc. 19-1 at 2, 8; doc. 19-2 at 4, 11.)

On February 27,

23 2013, the CSC summarily denied Chappell‟s petition without a
24 statement of reasoning or citation of authority. (Doc. 15-3 at 2.)
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Petitioner constructively filed his petition for relief in the

26 instant proceeding on May 22, 2013.
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2.

(Doc. 1 at 6, 28-29.)

Analysis

Title 28 U.S.C. § 2244(d)(2) states that the “time during which
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1 a properly filed application for State post-conviction or other
2 collateral review with respect to the pertinent judgment or claim is
3 pending shall not be counted toward@ the one-year limitation period.
4 28 U.S.C. ' 2244(d)(2).

Once a petitioner is on notice that his

5 habeas petition may be subject to dismissal based on the statute of
6 limitations, he has the burden of demonstrating that the limitations
7 period was sufficiently tolled by providing the pertinent facts,

8 such as dates of filing and denial.

Zepeda v. Walker, 581 F.3d

9 1013, 1019 (9th Cir. 2009) (citing Smith v. Duncan, 297 F.3d 809,
10 814-15 (9th Cir. 2002), abrogation on other grounds recognized by
11 Moreno v. Harrison, 245 Fed.Appx. 606 (9th Cir. 2007)).
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An application for collateral review is Apending@ in state court

13 Aas long as the ordinary state collateral review process is >in
14 continuance=-i.e., >until the completion of= that process.@
15 Saffold, 536 U.S. 214, 219-20 (2002).

Carey v.

In California, this generally

16 means that the statute of limitations is tolled from the time the
17 first state habeas petition is filed until the California Supreme
18 Court rejects the petitioner's final collateral challenge, as long
19 as the petitioner did not Aunreasonably delay@ in seeking review.
20 Id. at 221-23; accord, Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.
21 1999).
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Here, petitioner delayed for almost nine (9) months, for a

23 total of 314 days, after the KCSC‟s denial of his petition on
24 November 4, 2011, and his filing of a petition in the CCA on
25 September 14, 2012.

Respondent argues that Petitioner unreasonably

26 delayed in filing his petition, and thus no petition was “pending”
27 within the meaning of § 2244(d)(2) during that period to function to
28 toll the running of the statute.
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Absent a clear direction or explanation from the California

2 Supreme Court about the meaning of the term “reasonable time” in
3 a specific factual context, or a clear indication that a filing
4 was timely or untimely, a federal court hearing a subsequent
5 federal habeas petition must examine all relevant circumstances
6 concerning the delay in each case and determine independently
7 whether the California courts would have considered any delay

8 reasonable so as to render the state collateral review petition
9 “pending” within the meaning of § 2244(d)(2).
10 546 U.S. 189, 197-98 (2006).

Evans v. Chavis,

A delay of six months has been found

11 to be unreasonable because it is longer than the relatively short
12 periods of thirty (30) or sixty (60) days provided by most states
13 for filing appeals.

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

In this

14 circuit, the thirty-day to sixty-day period is applied as a
15 benchmark for California's “reasonable time” requirement, to be
16 exceeded in appropriate circumstances.

Stewart v. Cate, 734 F.3d

17 995, 1001 (9th Cir. 2013) (citing Velasquez v. Kirkland, 639 F.3d
18 964, 968 (9th Cir. 2011)).

Various periods of delay have been found

19 to be unreasonable, including intervals of eighty-one (81)
20 and ninety-two (92) days between the disposition of a writ at one
21 level and the filing of the next writ at a higher level, Velasquez
22 v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011), cert. den., 132

23 S.Ct. 554 (2011); unexplained, unjustified periods of ninety-seven
24 (97) and seventy-one (71) days, Culver v. Director of Corrections,
25 450 F.Supp.2d 1135, 1140 (C.D.Cal. 2006; one hundred (100) days
26 between the denial of a petition by the California Court of Appeal
27 and the filing of a petition in the California Supreme Court, which
28 was held to be unreasonable because there was no showing of good
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1 cause for the delay where the two petitions involved the same
2 claims, evidence, and research, and the petitioner had at least
3 thirty days to file the petition despite being under prisoner
4 emergency status and being unable to research his petition, Stewart
5 v. Cate, 734 F.3d at 1002-03; unjustified delays of one hundred
6 fifteen (115) and one hundred one (101) days between denial of one
7 petition and the filing of a subsequent petition, Chaffer v.

8 Prosper, 592 F.3d. 1046, 1048 (9th Cir. 2010); and one hundred
9 forty-six (146) days between the filing of two trial court
10 petitions, Banjo v. Ayers, 614 F.3d 964, 968-69 (9th Cir. 2010),
11 cert. den., 131 S.Ct. 3023 (2011).
12

Here, the CCA did not expressly determine that the petition was

13 timely.

To the extent that the CCA denied the petition, it did so

14 without a statement of reasoning or authority; further, it left open
15 the possibility of seeking relief on the ex post facto claim if
16 relief became available pursuant to a subsequent decision of the
17 California Supreme Court.

Since the CCA did not expressly determine

18 that the petition was untimely, this Court thus proceeds to examine
19 all relevant circumstances concerning the delay and to determine
20 independently whether the California courts would have considered
21 any delay reasonable.
22

Petitioner argues that the KCSC petition, which was denied on

23 November 4, 2011, was actually pending for a much longer period
24 because on December 9, 2011, Petitioner filed what he characterizes
25 as a motion for reconsideration of the denial, which was pending
26 until February 27, 2012, when the KCSC issued an order which stated
27 the following:
28

The court has read and considered the additional evidence
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received by this court dated December 9, 2011. The
petition was denied and a copy of the minute order was
sent to petitioner on November 15, 2011.
Petitioner presents no new evidence to warrant this
court to change its position. The petitioner cites
no authority, and the court is aware of none, permitting
this court to reconsider the petition for writ of
habeas corpus. In re Clark, 5 Cal.4th 750, 767 n.7;
In re Hochberg (1970) 2 Cal.3d 870, 876. Petitioner may
appeal to a higher court. (In re Crow (1971) 4 Cal.3d
613, 621 n.8.)

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The petition for writ of habeas corpus remains denied.

10 (Doc. 26, 21.)
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Respondent contends that the motion for reconsideration was not

12 a “properly filed” application within the meaning of § 2244(d)(2)
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because the KCSC lacked subject matter jurisdiction to entertain a
motion for reconsideration.
A state petition is filed properly “when its delivery and

17 acceptance are in compliance with the applicable laws and rules
18 governing filings.”

Artuz v. Bennett, 531 U.S. 4, 8 (2000).

19 Jurisdictional matters, as requirements that “go to the very
20

initiation of a petition and a court's ability to consider that

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petition,” are conditions to filing.

Pace v. DiGuglielmo, 544 U.S.

408, 417, 414 (2005) (holding that timeliness requirements are

24 conditions to filing such that violation of the requirements will
25 prevent a petition from being “properly filed” within the meaning of
26 § 2244(d)(2)). In Artuz v. Bennett, the Court considered an
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argument that a petition that was pending was properly filed.
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The

1 Court expressly noted that if an application is erroneously accepted
2 by a clerk of a court lacking jurisdiction, the petition “will be
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pending, but not properly filed.”

Artuz, 531 U.S. at 9.

In its order, the KCSC expressly noted its lack of authority to
reconsider the ruling on the petition, citing to portions of Clark

7 and Hochberg, California authorities, to the effect that the only

8 way to obtain review of a superior court‟s denial of a habeas
9 petition is to file a new petition in a court of appeal.
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The KCSC‟s

jurisdictional determination was made pursuant to state law;
although a California trial court has the power to reconsider or
modify its judicial determinations embodied in a ruling on a

14 petition for writ of habeas corpus, the power to reconsider extends
15 only until the order becomes final and jurisdiction is lost by
16 either the expiration of the period of finality or the filing of a
17
notice of appeal. Jackson v. Superior Court, 189 Cal.App.4th 1051,
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1064-65 (2010). An order denying a petition for writ of habeas
19
20 corpus in the superior court is final immediately upon its filing,
21 and review of the order can only be had by the filing of a new
22 petition in the Court of Appeal.

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Id. at 1065 n.5.

The KCSC thus

lost jurisdiction over Petitioner‟s petition at the point that it
initially denied the petition in November 2011.

When the motion for

reconsideration was subsequently filed, it was not “properly filed”

27 within the meaning of § 2244(d)(2).

See, Artuz, 544 U.S. at 9;

28 Larry v. Dretke, 361 F.3d 890, 895 (5th Cir. 2004), cert. den. 543
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1 U.S. 893 (2004) (petition filed in a state court that lacked subject
2 matter jurisdiction was not properly filed and did not toll the
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statute).

The pendency of the motion thus did not toll the running

of the statutory limitations period pursuant to § 2244(d)(2).
Ramirez v. Yates, 571 F.3d 993, 999 (9th Cir. 2009).3
The delay of over five months was a substantial delay that

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8 would be unreasonable if unsupported by a showing of good cause.
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With respect to justification for the delay, to benefit from
statutory tolling, a petitioner must adequately justify a
substantial delay.

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

U.S. at 192-93; Waldrip v. Hall, 548 F.3d at 734.
In In re Reno, 55 Cal.4th 428, 460-61 (2012), the California

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15 Supreme Court summarized the applicable California law as
16 follows:
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

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Even if the running of the statute were tolled from early December 2011 through

27 late February 2012 while the motion for reconsideration was before the KCSC,

Petitioner thereafter nevertheless delayed substantially for about six and one-

28 half months (from late February 2012 through mid-September 2012) before filing the
petition in the CCA.

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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
information offered in support of the claim and the
legal basis for the claim.”].)
In re Reno, 55 Cal.4th at 460-61.

A petitioner must show

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

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

(citing In re Walker, 10 Cal.3d 764, 774 (1974)).

The Ninth Circuit

Court of Appeals has noted that there are no California standards
16

1 for determining what period of time or factors constitute
2 “substantial delay” in noncapital cases or for determining what
3 factors justify any particular length of delay.
4 464 F.3d 963, 966 (9th Cir. 2006).

King v. LaMarque,

It is recognized that

5 California‟s time limit for filing a habeas petition in a noncapital
6 case is more “forgiving and flexible than that employed by most
7 states.” Chavis, 546 U.S. at 202 (Stevens, J., concurring).

8

Petitioner argues that he did not know what to do with respect

9 to filing for collateral relief in the state courts and had to
10 obtain and review legal materials.

Unspecified legal property was

11 unavailable to Petitioner from February 2011 until May 2011, and
12 again from April 4, 2013 until on or about April 24, 2013 during and
13 following two transfers to different prisons.
14

(Doc. 26 at 2, 18.)

The petitions filed in the KCSC and the CCA respectively were

15 similar with respect to the issues raised, although the later
16 petition contained additional documentation of legal materials and
17 Petitioner‟s second attempt at administrative exhaustion.

(Compare

18 docs. 17-1 through 17-6 and doc. 18-1 with docs. 18-2 through 18-7.)
19 Petitioner admitted in his petition filed in the CCA that he
20 exhausted one administrative appeal regarding the retroactive and
21 fundamentally unfair application of a state court decision and the
22 2010 amendments to Cal. Pen. Code §§ 2933.6; however, when he was

23 transferred to a different prison, he attempted to exhaust his
24 grievance a second time “to see if illegal activity was statewide.”
25 (Doc. 18-2 at pp. 7, 6, 9-10.)
26

It would be contrary to the purpose of the limitations period

27 to permit a petitioner to delay exhaustion of state judicial
28 remedies by filing administrative appeals acknowledged to be
17

1 duplicative.

To the extent that Petitioner premises a potential

2 justification for delay on his duplicative administrative
3 proceedings, he fails because Petitioner‟s conduct is inconsistent
4 with due diligence in exhaustion of state court remedies.

In any

5 event, it does not appear that the delay was necessary to develop
6 Petitioner‟s claims factually or legally.

Further, it does not

7 appear that short periods of separation from legal property in early

8 2011 and April 2013 obstructed Petitioner‟s progress in drafting a
9 habeas petition during the period from November 2011 through
10 September 2012.

Petitioner has not shown good cause for his

11 substantial delay in filing the petition in the CCA.
12

Likewise, Petitioner has not shown that an exception applies,

13 such as an error of constitutional magnitude that resulted in a
14 fundamentally unfair trial, Petitioner‟s actual innocence of the
15 commitment offenses, conviction or sentence under an invalid
16 statute, or fundamental error in the imposition of the death
17 penalty.
18

In summary, Petitioner‟s motion for reconsideration of the KCSC

19 petition was not properly filed, so it did not toll the statute.
20 The lengthy delay of over five months between the denial of the KCSC
21 petition and the filing of the CCA petition was not justified by
22 good cause or excused by an exception to the state law requirement

23 of filing within a reasonable time.

Thus, the CCA petition was not

24 “pending” within the meaning of § 2244(d)(2) and did not toll the
25 statute during the interval or “gap” between the denial of the KCSC
26 petition and the filing of the CCA petition.
27
28

C.

Equitable Tolling

The one-year limitation period of § 2244 is subject to
18

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.

Ramirez v. Yates, 571 F.3d

15 993, 997 (9th Cir. 2009).
16

The diligence required for equitable tolling is reasonable

17 diligence, not “maximum feasible diligence.”
18 130 S.Ct. at 2565.

Holland v. Florida,

However, “the threshold necessary to trigger

19 equitable tolling [under AEDPA] is very high, lest the exceptions
20 swallow the rule.”

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

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

A

22 petitioner seeking equitable tolling must demonstrate reasonable

23 diligence while exhausting state court remedies as well as while
24 attempting to file a federal petition during the period after the
25 extraordinary circumstances began.
26 971 (9th Cir. 2006).

Roy v. Lampert, 465 F.3d 964,

The effort required is what a reasonable

27 person might be expected to deliver under his or her particular
28 circumstances.

Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011).
19

1 Because a pro se petitioner‟s habeas filings must be construed with
2 deference, a court will construe liberally such a petitioner‟s
3 allegations regarding diligence.

Roy v. Lampert, 465 F.3d 964, 970

4 (9th Cir. 2006).
5

Here, Petitioner argues that he lacked knowledge of law and

6 procedure and thus needed to perform research; he was separated from
7 his legal property in February, March, and April 2011 as well as in

8 April 2013; and he engaged in a second, admittedly duplicative round
9 of administrative remedies.
10

Petitioner‟s pro se status is not by itself an extraordinary

11 circumstance.

Chaffer v. Prosper, 592 F.3d 1046, 1049.

A pro se

12 petitioner's confusion or ignorance of the law is not alone a
13 circumstance warranting equitable tolling.
14 F.3d 1150, 1154 (9th Cir. 2006).

Rasberry v. Garcia, 448

A prisoner‟s failure to recognize

15 that a state filing was unreasonably delayed under California law is
16 not the result of an “external force” that rendered timeliness
17 impossible, but rather is attributable to the petitioner as the
18 result of his own actions.
19 (9th Cir. 2011).

Velasquez v. Kirkland, 639 F.3d 964, 969

In summary, Petitioner‟s limited legal knowledge

20 was not an extraordinary circumstance warranting equitable tolling.
21

Further, even if during short periods of transfer to new

22 custodial institutions Petitioner was without access to facilities,

23 ordinary prison limitations on a prisoner‟s access to a law library
24 and a copier are neither extraordinary nor such to make it
25 impossible for a petitioner to file his petition in a timely manner.
26 Ramirez v. Yates, 571 F.3d at 998.
27

With respect to Petitioner‟s separation from his legal

28 property, reference to the chronology of pertinent events shows that
20

1 the statute of limitations did not begin running until August 31,
2 2011, long after Petitioner‟s first separation from his property in
3 the Spring of 2011.

The second separation occurred in April 2013, a

4 month after the CSC denied the habeas petition, but it consumed only
5 about twenty-four days of an eighty-three-day period between the
6 denial of the petition by the CSC and the filing of the petition
7 here.

Petitioner has not shown a causal connection between any

8 separation from his legal property and the delay in filing any
9 petition.

Where a prisoner fails to show any causal connection

10 between the grounds upon which he asserts a right to equitable
11 tolling and his inability to timely file a federal habeas
12 application, the equitable tolling claim will be denied.

Gaston v.

13 Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005).
14

Further, Petitioner‟s circumstances are not specified.

In some

15 circumstances, lack of access to legal files can constitute an
16 external impediment sufficiently extraordinary to support equitable
17 tolling.

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

However, it is

18 necessary for a petitioner to demonstrate his own diligence and that
19 the lack of access was the extraordinary circumstance that caused
20 his petition to be filed as late as it was.

Id.

This means that a

21 petitioner must point to specific instances in which he was unable
22 to file a timely federal petition because of the lack of access to a

23 particular document.
24 are general.

Id.

Here, however, Petitioner‟s allegations

Petitioner has not shown how any specific limitation

25 of access to his property actually made it impossible for him to
26 file a petition raising essentially the same claims that he had
27 raised before.
28

With respect to exhaustion of administrative remedies,
21

1 Petitioner asserts that when he was transferred to a new
2 institution, the CDCR recalculated his release date.

It appears

3 that Petitioner might be attempting to rely on the continuing nature
4 of his credit-earning status as a basis for delay in exhausting
5 state court remedies.

However, the gist of Petitioner‟s claims was

6 set forth in the initial administrative process, and Petitioner has
7 not shown that it was legally necessary for Petitioner to duplicate

8 the administrative process regarding the CDCR‟s continuing
9 application of what appears to be statewide policy regarding
10 Petitioner‟s credit-earning status and entitlement simply because
11 Petitioner was transferred to a new institution.

Petitioner‟s

12 duplicative administrative applications do not constitute an
13 extraordinary circumstance warranting equitable tolling; if
14 anything, they demonstrate that Petitioner was not reasonably
15 diligent in exhausting his state court remedies.
16

The Court concludes that Petitioner has not shown entitlement

17 to equitable tolling of the statute of limitations.
18

In summary, nineteen (19) days ran after the commencement of

19 the limitations period on August 31, 2011, until Petitioner filed
20 the KCSC petition on September 20, 2011, which tolled the statute
21 for forty-six (46) days until November 4, 2011, when the KCSC
22 petition was denied.

Because the motion for reconsideration of the

23 KCSC petition was not properly filed, it did not toll the running of
24 the statute.

Further, because the filing of the CCA petition was

25 unreasonably delayed, the CCA petition was not “pending” within the
26 meaning of § 2244(d)(2) to provide statutory tolling during the
27 interval or “gap” after the denial of the KCSC petition until the
28 filing of the CCA petition.

Thus, 314 days of the limitations
22

1 period ran after the denial of the KCSC petition on November 4,
2 2011, until the filing of a petition in the CCA on September 14,
3 2012.

The statute was tolled thereafter for seventy-four (74) days

4 during the actual pendency of the CCA petition from September 14,
5 2012, until November 26, 2012; for fifteen (15) days constituting
6 the interval or the “gap” following the CCA‟s denial on November 26,
7 2012, and the filing of a petition in the CSC on December 12, 2012;

8 and for seventy-eight (78) days while the petition was pending in
9 the CSC until being denied on February 27, 2013.

When the CSC

10 denied the petition on February 27, 2013, 333 days of the
11 limitations period had run, and thirty-two (32) days of the
12 limitations period remained.

However, eighty-three (83) more days

13 passed before Petitioner filed his petition in the present case on
14 May 22, 2013.

Thus, the petition was filed beyond the one-year

15 limitations period and was untimely.
16

Because the petition was untimely, it is unnecessary for the

17 Court to address Respondent‟s additional contention that Petitioner
18 did not state a cognizable claim.
19

In accordance with the foregoing analysis, it will be

20 recommended that the Respondent‟s motion to dismiss the petition be
21 granted, the petition be dismissed, and judgment be entered for
22 Respondent.

23

IV.

Certificate of Appealability

24

Unless a circuit justice or judge issues a certificate of

25 appealability, an appeal may not be taken to the Court of Appeals
26 from the final order in a habeas proceeding in which the detention
27 complained of arises out of process issued by a state court

28

28 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
23

1 (2003).

A district court must issue or deny a certificate of

2 appealability when it enters a final order adverse to the applicant.
3 Rule 11(a) of the Rules Governing Section 2254 Cases.
4

A certificate of appealability may issue only if the applicant

5 makes a substantial showing of the denial of a constitutional right.
6 ' 2253(c)(2).

Under this standard, a petitioner must show that

7 reasonable jurists could debate whether the petition should have

8 been resolved in a different manner or that the issues presented
9 were adequate to deserve encouragement to proceed further.

Miller-

10 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
11 473, 484 (2000)).

A certificate should issue if the petitioner

12 shows that jurists of reason would find it debatable whether the
13 petition states a valid claim of the denial of a constitutional
14 right and, with respect to a procedural denial, that jurists of
15 reason would find it debatable whether the district court was
16 correct in any procedural ruling.

Slack v. McDaniel, 529 U.S. at

17 483-84.
18

In determining this issue, a court conducts an overview of the

19 claims in the habeas petition, generally assesses their merits, and
20 determines whether the resolution was wrong or debatable among
21 jurists of reason.

Id.

It is necessary for an applicant to show

22 more than an absence of frivolity or the existence of mere good

23 faith; however, it is not necessary for an applicant to show that
24 the appeal will succeed.
25

Miller-El v. Cockrell, 537 U.S. at 338.

Here, it does not appear that reasonable jurists could debate

26 whether the petition should have been resolved in a different
27 manner.

Petitioner has not made a substantial showing of the denial

28 of a constitutional right.
24

1

Accordingly, it will be recommended that the Court decline to

2 issue a certificate of appealability.
3

V.

Recommendations

4

Accordingly, it is RECOMMENDED that:

5

1) Respondent‟s motion to dismiss the petition for writ of

6 habeas corpus be GRANTED; and
7

2) The petition for writ of habeas corpus be DISMISSED; and

8

3) Judgment be ENTERED for Respondent; and

9

4) The Court DECLINE to issue a certificate of appealability.

10

These findings and recommendations are submitted to the United

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

Within thirty (30) days after being served

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

Such a document should be

17 captioned AObjections to Magistrate Judge=s Findings and
18 Recommendations.@

Replies to the objections shall be served and

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

The Court will then review

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

23 specified time may waive the right to appeal the District Court=s
24 order.

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

25 IT IS SO ORDERED.
26
27

Dated:

/s/ Barbara

February 27, 2014

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

28
25