Jose Casillas Malanche v. S. Frauenheim

Filing 19

FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus (Doc. 1 ) be DISMISSED With Prejudice signed by Magistrate Judge Sheila K. Oberto on 10/7/2016. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE CASILLAS MALANCHE,

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Petitioner,

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No. 1:16-cv-00633-AWI-SKO HC
FINDINGS AND RECOMMENDATION
TO DISMISS PETITION AS UNTIMELY

v.
S. FRAUENHEIM, Warden,
(Doc. 13)

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Respondent.

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Petitioner Jose Casillas Malanche is a state prisoner proceeding pro se with a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Scott Frauenheim, Warden of

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Pleasant Valley State Prison, moves to dismiss the petition as untimely. The undersigned

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recommends that the Court dismiss the petition, which was filed after expiration of the statute of

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limitations.

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I.

Procedural and Factual Background

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On July 27, 2010, a jury in Fresno County Superior Court found Petitioner guilty of (1)
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forcible rape (California Penal Code § 261(a)(2)); (2) sodomy by use of force (California Penal

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Code § 286(c)(2)); and (3) sexual penetration by force (California Penal Code § 289(a)(1)). For

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each count, the jury found that Petitioner had inflicted great bodily injury upon the victim. On

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August 26, 2010, the Superior Court sentenced Petitioner of a determinate term of 24 years, to be

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followed by an indeterminate term of 15 years to life.

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Petitioner appealed his conviction to the California Court of Appeal. On March 2, 2012,
the Court of Appeal vacated Petitioner’s sentence but otherwise affirmed the conviction. On May

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16, 2012, the California Supreme Court denied the petition for review.
On August 20, 2012, the Fresno County Superior Court resentenced Petitioner to an

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aggregate term of 45 years to life in prison. The California Court of Appeal affirmed on October

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18, 2016.

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On March 17, 2016, Petitioner filed the above-captioned habeas petition in the U.S.
District Court for the Northern District of California. The Northern District Court ordered the

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petition transferred to this Court on May 2, 2016.
II.

Timeliness of the Pending Petition
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of

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1996 (AEDPA), which applies to all petitions for writ of habeas corpus filed after its enactment.

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Lindh v. Murphy, 521 U.S. 320, 327 (1997). AEDPA provides a one-year period of limitation in

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which a petitioner may file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The
limitations period is measured from the latest of:

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(A)
the date on which the judgment became final by 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 a State action in
violation of the Constitution or laws of the United States is

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removed, if the applicant was prevented from filing by such state
action;

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(C)
the date on which the constitutional right asserted was
initially recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or

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

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28 U.S.C. § 2244(d)(1).
Direct review in the State of California ended October 18, 2013, when the California

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Court of Appeal affirmed the judgment. Petitioner did not seek review in the California Supreme

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Court. The federal statutory limitation period began on November 27, 2013, following the

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expiration of the 40-day period in which to seek review in the California Supreme Court.

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Accordingly, the one-year statutory limitation period expired on November 27, 2014. Filed

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March 17, 2016, the above-captioned petition is untimely.

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III.

In his reply to the motion to dismiss, Petitioner contends he is entitled to equitable tolling

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Petitioner is Not Entitled to Equitable Tolling

based on his lack of legal experience and reliance on the assistance of other inmates.
The one-year statutory period is intended to protect the federal judicial system from

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having to address stale claims. Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir. 2003). To

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effectuate that objective, the bar to achieve equitable tolling is set very high. Id. A habeas

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petitioner is entitled to equitable tolling of the one-year statute of limitations only if the petitioner

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shows that (1) he has been pursuing his rights diligently and (2) some extraordinary circumstance

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prevented timely filing. See Holland v. Florida, 560 U.S. 631, 634, 648 (2010); Ramirez v. Yates,

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571 F.3d 993, 997 (9th Cir. 2009). The petitioner bears the burden of alleging facts sufficient to

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support equitable tolling. Pace v. Di Guglielmo, 544 U.S. 408, 418 (2005).
To satisfy the first prong, the petitioner must demonstrate reasonable diligence. Bills v.

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Clark, 628 F.3d 1092, 1096 (9th Cir. 2010). Failure to act diligently throughout the time at issue

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will break the link of causation between the extraordinary circumstance and the failure to timely

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pursue relief. See Spitsyn v. Moore, 345 F.3d 796, 802 (9th Cir. 2003) (finding equitable tolling

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unavailable when the petitioner failed to exercise reasonable diligence under the circumstances

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that he faced); Guillory, 329 F.3d at 1016 (in the absence of diligent effort, extraordinary

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circumstance did not mandate equitable tolling); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.

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1999) (denying equitable tolling when the petitioner's own conduct rather than external forces

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accounted for the untimely filing).

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"[T]he threshold necessary to trigger equitable tolling under [the] AEDPA is very high,

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lest the exceptions swallow the rule." Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006). A

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court should "permit equitable tolling of AEDPA's limitations period 'only if extraordinary

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circumstances beyond a prisoner's control make it impossible to file a claim on time.'" Miles, 187

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F.3d at 1107, quoting Calderon v. United States District Court, 163 F.3d 530, 541 (9th Cir. 1998),

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abrogated on other grounds, Woodford v. Garceau, 538 U.S. 202 (2003). The petitioner must

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show that an external force caused the petition's untimeliness, not "oversight, miscalculation, or

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negligence." Waldon-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). A court should

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determine whether the circumstances are extraordinary using a flexible case-by-case approach,

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looking for special circumstances that warrant special treatment in an appropriate case. Holland,

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130 S.Ct. at 2563.

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Allegations that a petitioner lacked legal knowledge do not constitute extraordinary

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circumstances since nearly all inmates lack legal knowledge and rely on the legal assistance of

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untrained jailhouse lawyers. See, e.g., Fisher v. Ramirez-Palmer, 219 F.Supp.2d 1076, 1080-81

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(E.D.Cal. 2002); Wilson v. Bennett, 188 F.Supp.2d 347, 353-54 (S.D.N.Y. 2002); Henderson v.

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Johnson, 1 F.Supp.2d 650, 655 (N.D.Tex. 1998). Equitable tolling is not warranted based on a

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petitioner's lack of understanding of the law. See, e.g., Chaffer v. Prosper, 592 F.3d 1046, 1049

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(9th Cir. 2010) (finding that the petitioner's pro se status, the law library's missing some reporter

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volumes, and the petitioner's reliance on busy inmate helpers were not extraordinary

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circumstances "given the vicissitudes of prison life"); Raspberry v. Garcia, 448 F.3d 1150, 1154

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(9th Cir. 2006) ("[A] pro se petitioner's lack of legal sophistication is not, by itself, an

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extraordinary circumstance warranting equitable tolling"); Marsh v. Soares, 223 F.3d 1217, 1220

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(10th Cir. 2000) ("[It] is well established that 'ignorance of the law, even for an incarcerated pro

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se petitioner, generally does not excuse prompt filing'"); Turner v. Johnson, 177 F.3d 390, 392

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(5th Cir. 1999) ("[N]either a plaintiff's unfamiliarity with the legal process nor his lack of

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representation during the applicable filing period merits equitable tolling . . . It is irrelevant
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whether the unfamiliarity is due to illiteracy or any other reason"); Hughes v. Idaho State Bd. of

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Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (finding pro se petitioner's illiteracy and lack of

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legal knowledge insufficient to justify equitable tolling). Nor is equitable tolling warranted

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because of the delays inherent to prison life, such as lockdowns, inability to obtain relevant legal

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documents, or physical inability to access the law library: the law requires petitioners to take the

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restrictions of prison life into account when calculating the time needed to complete and file a

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federal petition. See, e.g., Ramirez, 571 F.3d at 998 (finding ordinary limitations on access to law

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library insufficient to warrant equitable tolling); United States v. Van Poyck, 980 F.Supp. 1108,

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1111 (C.D.Cal. 1997) (finding limitations on law library access due to lockdowns insufficient to

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merit equitable tolling). Because the circumstances leading to Petitioner's untimely submission of

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his habeas petition were not extraordinary, the undersigned recommends that the Court find that

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Petitioner is not entitled to equitable tolling of the statute of limitations.

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IV.

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Certificate of Appealability
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a

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district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v.

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Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a

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certificate of appealability is 28 U.S.C. § 2253, which provides:

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(a) In a habeas corpus proceeding or a proceeding under section 2255
before a district judge, the final order shall be subject to review, on appeal, by
the court of appeals for the circuit in which the proceeding is held.

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(b) There shall be no right of appeal from a final order in a proceeding
to test the validity of a warrant to remove to another district or place for
commitment or trial a person charged with a criminal offense against the
United States, or to test the validity of such person's detention pending
removal proceedings.
(c) (1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the denial of a
constitutional right.

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(3) The certificate of appealability under paragraph (1) shall
indicate which specific issues or issues satisfy the showing required by
paragraph (2).

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If a court denies a habeas petition, the court may only issue a certificate of appealability

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"if jurists of reason could disagree with the district court's resolution of his constitutional claims

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or that jurists could conclude the issues presented are adequate to deserve encouragement to

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proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Although the petitioner is not required to prove the merits of his case, he must demonstrate

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"something more than the absence of frivolity or the existence of mere good faith on his . . .

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part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's determination that the petition is barred by

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the statute of limitations to be debatable, wrong, or deserving of encouragement to proceed

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further. Accordingly, the undersigned recommends that the Court decline to issue a certificate of

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appealability.

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V.

Conclusion and Recommendation
The undersigned recommends that the Court dismiss the Petition for writ of habeas corpus

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with prejudice and decline to issue a certificate of appealability.
These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty

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(30) days after being served with these Findings and Recommendations, either party may file

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written objections with the Court. The document should be captioned AObjections to Magistrate

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Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and

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filed within fourteen (14) days after service of the objections. The parties are advised that failure
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to file objections within the specified time may constitute waiver of the right to appeal the District

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Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

October 7, 2016

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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