McLaughlin v. Spearman

Filing 15

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 8/15/2014 RECOMMENDING that petitioner's 13 motion to file a response to respondent's reply be granted; and respondent's 10 motion to dismiss be granted. Referred to Judge Troy L. Nunley; Objections due within 14 days.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD MICHAEL McLAUGHLIN,

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Petitioner,

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vs.

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No. 2:13-cv-0924-TLN-CMK-P

M. SPEARMAN,

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FINDINGS AND RECOMMENDATION

Respondent.

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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is Respondent’s motion to

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dismiss (Doc. 10), petitioner’s opposition (Doc. 11), and respondent’s reply (Doc. 12). Petitioner

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also filed a motion for additional time to file a response to respondent’s reply (Doc. 13). Such a

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pleading is not contemplated by the Federal Rules of Civil Procedure. However, as petitioner

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filed his response prior to the court’s review of the motion to dismiss, the court has reviewed the

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response.

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I.

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Petitioner is challenging his 1996 conviction and sentence out of the Solano

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BACKGROUND

County Superior Court. His conviction was affirmed by the California Court of Appeal in 1997.
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No direct appeal was filed in the California Supreme Court. His first habeas petition was filed in

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the California Supreme Court in 2013.

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II.

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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to

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dismiss a petition if it “plainly appears from the petition and any attached exhibits that the

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petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing

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Section 2254 Cases. The Ninth Circuit has allowed respondents to file a motion to dismiss in

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lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being

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in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th

MOTION TO DISMISS

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Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state

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remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural

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grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F. Supp.

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1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss

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after the court orders a response, and the Court should use Rule 4 standards to review the motion.

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See Hillery, 533 F. Supp. at 1194 & n.12. The petitioner bears the burden of showing that he has

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exhausted state remedies. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).

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Respondent brings this motion to dismiss Petitioner’s habeas corpus petition as

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filed beyond the one-year statute of limitations, pursuant to 28 U.S.C. § 2244(d). Petitioner does

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not dispute the statute of limitations, but asserts that he is entitled to equitable tolling.

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Federal habeas corpus petitions must be filed within one year from the later of:

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(1) the date the state court judgment became final; (2) the date on which an impediment to filing

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created by state action is removed; (3) the date on which a constitutional right is newly-

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recognized and made retroactive on collateral review; or (4) the date on which the factual

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predicate of the claim could have been discovered through the exercise of due diligence. See 28

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U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court

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judgment becomes final by the conclusion of direct review or expiration of the time to seek direct
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review. See 28 U.S.C. § 2244(d)(1).

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Where a petition for review by the California Supreme Court is filed and no

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petition for certiorari is filed in the United States Supreme Court, the one-year limitations period

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begins running the day after expiration of the 90-day time within which to seek review by the

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United States Supreme Court. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

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Where a petition for writ of certiorari is filed in the United States Supreme Court, the one-year

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limitations period begins to run the day after certiorari is denied or the Court issued a merits

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decision. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). Where no petition for

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review by the California Supreme Court is filed, the conviction becomes final 40 days following

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the Court of Appeal’s decision, and the limitations period begins running the following day. See

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Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002). If no appeal is filed in the Court of Appeal, the

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conviction becomes final 60 days after conclusion of proceedings in the state trial court, and the

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limitations period begins running the following day. If the conviction became final before April

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24, 1996 – the effective date of the statute of limitations – the one-year period begins to run the

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day after the effective date, or April 25, 1996. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th

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Cir. 1999).

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The limitations period is tolled, however, for the time a properly filed application

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for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be

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“properly filed,” the application must be authorized by, and in compliance with, state law. See

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Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 552 U.S. 3 (2007); Pace v.

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DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a

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state’s timeliness bar, time limits for filing a state post-conviction petition are filing conditions

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and the failure to comply with those time limits precludes a finding that the state petition is

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properly filed). A state court application for post-conviction relief is “pending”during all the

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time the petitioner is attempting, through proper use of state court procedures, to present his

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claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered
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“pending” after the state post-conviction process is concluded. See Lawrence v. Florida, 549

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U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari

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petition to the Supreme Court was pending). Where the petitioner unreasonably delays between

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state court applications, however, there is no tolling for that period of time. See Carey v. Saffold,

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536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as

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untimely, the federal court must independently determine whether there was undue delay. See id.

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at 226-27.

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There is no tolling for the interval of time between post-conviction applications

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where the petitioner is not moving to the next higher appellate level of review. See Nino, 183

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F.3d at 1006-07; see also Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001). There is also no

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tolling for the period between different sets of post-conviction applications. See Biggs v.

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Duncan, 339 F.3d 1045 (9th Cir. 2003). Finally, the period between the conclusion of direct

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review and the filing of a state post-conviction application does not toll the limitations period.

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See Nino, 1983 F.3d at 1006-07.

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Here, petitioner is challenging his 1996 conviction. Petitioner appealed his

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conviction to the California Court of Appeal, which affirmed his conviction in September 1997.

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No appeal was filed with the California Supreme Court, an no post conviction petition for writ of

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habeas corpus was filed until 2013, when petitioner filed a petition with the California Supreme

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Court. The California Supreme Court denied his petition on April 10, 2013, and petitioner filed

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the current petition on May 10, 2013.

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The statute of limitations therefore began to run following the Court of Appeal’s

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decision in 1997. The statute expired by the end of 1998, when petitioner did not file either an

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appeal to the California Supreme Court nor a post-conviction petition for writ of habeas corpus.

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Petitioner’s 2013 petition filed in this court is therefore untimely, and barred by the statute of

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limitations, unless he is entitled to equitable tolling as he argues.

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Petitioner contends he is entitled to equitable tolling due to the abandonment of

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counsel. He argues he was abandoned by four separate post conviction attorneys, each of whom

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took his case and his files but failed to file his post-conviction petition to protect his interests,

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despite his attempts to have them do so.

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Petitioner is correct, that the Supreme Court has determined the statute of

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limitations under 28 U.S.C. § 2244(d) is subject to equitable tolling principles. See Holland v.

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Florida, 560 U.S. __, 130 S. Ct. 2549, 2562 (2010). To be entitled to equitable tolling, the

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petitioner must demonstrate that: (1) he has been diligent in pursuing his rights; and (2)

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extraordinary circumstances prevented him from filing on time. See Pace v. DiGuglielmo, 544

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U.S. 408 (2005).

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Petitioner contends his situation is equivalent to that in Holland, in that he was

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abandoned by counsel and despite his many efforts, was unable to timely file his petition.

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Petitioner argues that following the appeal of his conviction to the California Court of Appeal,

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which affirmed his conviction in 1997, his attorney, Bloodgood, failed to inform him of the

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court’s opinion for eight months after it was issued. He states it was not until May 1998 that he

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was informed the Court of Appeal had denied his appeal. He further argues that attorney

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Bloodgood had been retained not only to appeal his conviction, but also to file his state habeas

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petition. Bloodgood failed to do so, and failed to inform him of the proceedings in a timely

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fashion.

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Following the last correspondence with Bloodgood, in May 1998, petitioner

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claims he hired a new attorney, Dangler, to pursue his post-conviction remedies in early 1999.

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According to the mail log petitioner provided to the court, his first correspondence with attorney

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Dangler was in May 1999. Petitioner and attorney Dangler corresponded regularly throughout

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1999 and 2000. There was then intermittent communication in 2001 and 2002. In the

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meantime, petitioner began communicating with attorney Bloom, who was again hired to pursue

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petitioner’s post-conviction remedies. The letters petitioner provides to the court indicate some
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difficulties Bloom had in obtaining his file from Dangler. There appears to have been regular

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communication with attorney Bloom from 2001 until 2004, with Bloom providing drafts of a

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petition to petitioner in 2003. However, by 2006 communication with Bloom had ceased, and

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petitioner hired yet another attorney in 2007, Bassis. Attorney Bassis apparently communicated

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with petitioner and worked on another draft petition until 2008, when petitioner complained to

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the California State Bar about the lack of communication and work product from Bassis despite

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paying her a retainer. He continued his efforts to communicate with Bassis however, until 2013.

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He then filed his pro se petition in the California Supreme Court in January 2013, and in this

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court in May 2013.

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It would appear petitioner has had a difficult time with the attorneys who

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represented him through his trial and post-conviction. Apparently at least two of these attorneys

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have been disbarred, and he had communication issues with all of them. However, equitable

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tolling is an extraordinary remedy, and “the threshold necessary to trigger equitable tolling [under

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AEDPA] is very high, lest the exceptions swallow the rule.” Spitsyn v. Moore, 345 F.3d 796, 799

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(9th Cir.2003) (citation omitted). It is petitioner’s burden to show he is entitled to equitable

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tolling. See Espinoza–Matthews v. People of the State of California, 432 F.3d 1021, 1026 (9th

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Cir.2005). Thus, petitioner must show not only that he was faced with extraordinary

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circumstances which prevented him from filing on time, but also that he was diligent in pursuing

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his rights. The diligence prong in Pace requires the petitioner to show he engaged in reasonably

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diligent efforts to file his § 2254 petition throughout the time the limitations period was running.

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Mendoza v. Carey, 449 F.3d 1065, 1071 n. 6 (9th Cir.2006) (stating that equitable tolling

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“requires both the presence of an extraordinary circumstance and the inmate’s exercise of

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diligence”). The petitioner must also demonstrate that he exercised reasonable diligence in

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attempting to file his habeas petition after the extraordinary circumstances began, otherwise the

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“link of causation between the extraordinary circumstances and the failure to file [is] broken.”

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Spitsyn, 345 F.3d at 802. The “extraordinary circumstances” prong in Pace requires the
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petitioner to “additionally show that the extraordinary circumstances were the cause of his

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untimeliness, and that the extraordinary circumstances made it impossible to file a petition on

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time.” Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir.2009) (internal quotations and citations

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omitted).

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Here, petitioner claims abandonment by counsel was the cause of his untimely

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petition, which should be considered an extraordinary circumstance. In order for the misconduct

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of counsel to warrant equitable tolling, the misconduct must have been egregious, not merely

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negligent. See Holland, 130 S. Ct. At 2564; Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003).

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Petitioner states his appellate attorney failed to notify him of the Court of

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Appeal’s decision affirming his conviction for eight months. He then claims he attempted to

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have his attorney file his post-conviction habeas petitions, but those efforts were thwarted by

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uncooperative and neglectful attorneys. Assuming, without deciding, that petitioner’s claims are

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sufficient to meet the first prong of extraordinary circumstances, petitioner must also meet the

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second prong of diligence.

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Petitioner claims he was not notified of the Court opinion affirming his conviction

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until May 1998. He then waited for almost a year of no activity from attorney Bloodgood to hire

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a new attorney. He hired attorney Dangler in May of 1999. Communication with Dangler began

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to break down by 2001, and petitioner sought an evaluation of his case by attorney Bloom in

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November 2001. Communication again broke down with attorney Bloom by 2004, but he did

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not hire attorney Bassis until 2007.

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Petitioner argues he was as diligent as he could be given his limited legal

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experience and his inability to obtain assistance from other prisoners given the charges against

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him. The best he could do was hire attorneys to assist him, which is what he did. He claims he

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had no way of knowing or controlling the lack of ethics of the attorneys he hired.

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The undersigned sympathizes with petitioner’s plight. It would appear that
petitioner had more than his fair share of difficulties with his representation. Having one’s
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attorney get disbarred for misconduct is difficult, and petitioner apparently had at least two.

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However, despite the hardships petitioner was faced with, he was still obligated to act diligently

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in getting a post-conviction petition filed within the statute of limitations. It is not uncommon

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for prisoners to have limited education and limited legal experience. Even those prisoners who

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have limited reading and writing skills are governed by the same standards. Section 2254

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requires prisoners file their post-conviction petitions within a one-year statute of limitations.

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Petitioner’s situation is not so unlike other prisoners that he would be entitled to special

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consideration as to that time frame. While the undersigned might be inclined to find petitioner

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entitled to equitable tolling for some of time he was unable to get his attorneys to file his petition

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despite his request to do so, petitioner gave these attorneys too much time to accomplish what

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needed to be done within the time set by the statute of limitations. Waiting for a year to pass

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before hiring new counsel, and not attempting to get a pro-se petition on file very shortly after he

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discovered the lack of his attorneys does not support his argument that he acted diligently.

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The undersigned agrees with petitioner’s assessment that “reasonable diligence,”

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not “maximum feasible diligence,” is required to demonstrate he is entitled to equitable tolling.

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See Holland, 130 S.Ct. at 2565. Like the instant petitioner, the petitioner in Holland, “not only

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wrote his attorney numerous letters,” he “also repeatedly contacted the state courts, their clerks,

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and the Florida State Bar Association.” Id. at 2565. However, Mr. Holland filed his federal

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petition five weeks late, and did so the very day he discovered the statute of limitations had run.

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Here, petitioner filed his federal petition over fifteen years too late, and at least ten to fourteen

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years after he knew about the statute of limitations issue.

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Therefore, even if the attorneys’ misconduct in this case would be considered an

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exceptional circumstance, the undersigned has to agree with respondent that petitioner failed to

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act reasonably diligently in pursuing his rights and getting his post-conviction habeas petition

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filed. Petitioner’s arguments to the contrary are unpersuasive.

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III.

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The undersigned finds the petitioner’s federal habeas petition was filed beyond the

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CONCLUSION

statute of limitations, and petitioner is not entitled to equitable tolling.
Based on the foregoing, the undersigned recommends that petitioner’s motion to

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file a response to respondent’s reply (Doc. 13) be granted; and respondent’s motion to dismiss

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(Doc. 10) be granted.

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These findings and recommendations are 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)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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

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DATED: August 15, 2014
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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