Leyba v. Foulk

Filing 32

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/9/2015 GRANTING petitioner 14 days to file objections to the 10/17/2014 findings and recommendations 18 ; AND RECOMMENDING that petitioner's 30 motion to stay be denied. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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IGNACIO LEYBA,

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No. 2:13-cv-2341 MCE KJN P

Petitioner,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

FRED FOULK, Warden,

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Respondent.

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Petitioner is a state prisoner, proceeding without counsel and in forma pauperis. As set

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forth below, petitioner’s motion for stay should be denied, and petitioner is granted an extension

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of time in which to file objections to the findings and recommendations issued on the merits of

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his petition.

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I. Background

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On October 17, 2014, the undersigned issued findings and recommendations on the merits

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of the original petition. On December 18, 2014, petitioner filed a motion to amend the petition,

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and sought leave to stay and abey the instant petition pending his return to state court to exhaust

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the issue of prosecutorial misconduct in state court. On December 18, 2014, petitioner also filed

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an application for certificate of appealability in which he referenced claims of prosecutorial

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misconduct and ineffective assistance of counsel which were not contained in petitioner’s original

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petition or addressed on the merits in the findings and recommendations.
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On January 16, 2015, petitioner’s motion to amend was denied without prejudice. (ECF

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No. 24 at 2-4.) Petitioner’s request for a stay was also denied without prejudice, and he was

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informed of the requirements for seeking a stay under Rhines v. Weber, 544 U.S. 269 (2005), and

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Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). (ECF No. 24 at 4-6.) Also, because the instant

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petition contains only exhausted claims, petitioner was advised that he must be granted leave to

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amend to include the unexhausted claims in order to pursue a stay under Rhines, and that if he

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were granted a stay under Kelly, he would have to seek leave to amend once he had exhausted

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any new claims. Specifically, petitioner was informed that if he chooses to file a motion to stay,

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he must identify the type of stay he seeks, and, if he seeks a stay under Rhines, petitioner must

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address each condition set forth in Rhines, 544 U.S. at 278, and file a motion to amend,

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accompanied by a proposed amended petition.

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After receiving two extensions of time, petitioner filed a motion to stay on April 30, 2015.

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Petitioner claims to seek a stay under Rhines, but failed to submit a motion to amend or a

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proposed amended petition. (ECF No. 30.) Petitioner alleges that he has limited access to the

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prison law library due to continuous prison lockdowns and overcrowding, which he claims

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obstructs his ability to research and prepare an amended petition and other documents, and to

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effectively argue the causes for his failure to exhaust state court remedies. (ECF No. 30 at 3-4.)

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Respondent opposes petitioner’s motion for stay because petitioner has no unexhausted

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claims pending and failed to identify any new potentially-meritorious claims he seeks to exhaust.

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Moreover, respondent contends that any new claims are barred by the statute of limitations.

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Petitioner did not file a reply.
II. Discussion - Motion to Stay

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Respondent’s arguments are well-taken. Petitioner was provided specific information on

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what he must file in order to obtain a stay, and was granted over three months in which to file the

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motions for stay and to amend. Indeed, the instant petition was filed November 12, 2013;

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petitioner could have filed his motions for stay and to amend at any point thereafter. Petitioner

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also failed to identify any new, potentially-meritorious claim. His argument concerning limited

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access to the prison law library is unavailing because the court provided him with the
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requirements for filing a motion for stay, many of which required factual, not legal, arguments to

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demonstrate good cause for petitioner’s failure to exhaust the proposed new claims, and to show

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that petitioner had been diligent, not intentionally dilatory. Hamilton v. Clark, 2010 WL 530111,

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at *2 (E.D. Cal. Feb. 9, 2010) (holding that lack of understanding of the exhaustion requirement

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and limited access to prison law library insufficient to show good cause for failure to exhaust and

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collecting cases).

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Moreover, any new claim would now be time-barred. The Antiterrorism and Effective

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Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1) provides a one year statute of limitations

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period. The California Supreme Court denied the petition for review on September 26, 2012.

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Petitioner’s conviction became final ninety days later, on December 25, 2012, when the time for

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seeking certiorari with the United States Supreme Court expired. Bowen v. Roe, 188 F.3d 1157

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(9th Cir. 1999). The AEDPA statute of limitations period began to run the following day, on

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December 26, 2012. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Absent tolling,

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petitioner’s last day to file his federal petition was on December 25, 2013. Petitioner filed no

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additional state court petitions, so is not entitled to statutory tolling.

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In addition, petitioner fails to demonstrate entitlement to equitable tolling because his

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allegations do not constitute extraordinary circumstances which made it impossible to timely file

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his motion for stay, motion to amend, or proposed amended petition. See, e.g., Fail v. Hubbard,

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315 F.3d 1059, 1061-62 (9th Cir. 2001) (“equitable tolling is warranted only by extraordinary

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circumstances beyond the petitioner’s control”); Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.

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2001) (rejecting argument that lack of access to library materials automatically constitutes

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extraordinary circumstances). Limited library access is an ordinary prison limitation that is

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routinely faced by prisoners in California, and this alone is insufficient to justify entitlement to

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equitable tolling. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (petitioner’s four

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month stay in administrative segregation with limited access to the law library and a copier did

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not justify equitable tolling because “[o]rdinary prison limitations on [one’s] access to the law

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library and copier (quite unlike the denial altogether of access to his personal legal papers) were

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neither ‘extraordinary’ nor made it ‘impossible’ for him to file a petition in a timely manner.”).
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For all of the above reasons, the undersigned recommends that petitioner’s motion to stay

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be denied.

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III. Pending Findings and Recommendations

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In light of the above recommendation, petitioner is granted fourteen days in which to file

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objections to the October 17, 2014 findings and recommendations issued on the merits of the

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petition.

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IV. Conclusion

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Accordingly, IT IS HEREBY ORDERED that petitioner is granted fourteen days in which
to file objections to the October 17, 2014 findings and recommendations (ECF No. 18); and

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IT IS RECOMMENDED that petitioner’s motion to stay (ECF No. 30) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

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he shall also address whether a certificate of appealability should issue and, if so, why and as to

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which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after

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service of the objections. The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: June 9, 2015

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