(HC)Sanford v. Bird

Filing 8

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/21/2022 DIRECTING the clerk to assign a District Judge to this case. Chief District Judge Kimberly J. Mueller and Magistrate Judge Allison Claire assigned to this case for all further proceedings. It is hereby RECOMMENDED that the 1 Petition for Writ of Habeas Corpus be dismissed without prejudice. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. New Case Number: 2:22-cv-1304 KJM AC (HC). (Spichka, K.)

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Case 2:22-cv-01304-KJM-AC Document 8 Filed 11/21/22 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREW E. SANFORD, 12 Petitioner, 13 14 15 No. 2:22-cv-1304 AC P v. ORDER AND FINDINGS & RECOMMENDATIONS BIRD, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. By order filed October 20, 2022, petitioner was ordered to show 19 cause why the petition should not be dismissed as untimely. ECF No. 6. Petitioner has now filed 20 a response. ECF No. 7. 21 As outlined in the October 20, 2022 order, the statute of limitations to file a federal habeas 22 petition expired on May 11, 2022. ECF No. 6 at 3. As a result, the instant petition, filed on July 23 20, 2022, is untimely unless petitioner can show he is entitled to tolling. In his response to the 24 order to show cause, petitioner asserts that he is entitled to equitable tolling based on two separate 25 sets of circumstances. ECF No. 7. 26 A habeas petitioner is entitled to equitable tolling of AEDPA’s one-year statute of 27 limitations “only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some 28 extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 1 Case 2:22-cv-01304-KJM-AC Document 8 Filed 11/21/22 Page 2 of 3 1 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “[T]he 2 statute-of-limitations clock stops running when extraordinary circumstances first arise, but the 3 clock resumes running once the extraordinary circumstances have ended or when the petitioner 4 ceases to exercise reasonable diligence, whichever occurs earlier.” Luna v. Kernan, 784 F.3d 5 640, 651 (9th Cir. 2015) (citing Gibbs v. Legrand, 767 F.3d 879, 891-92 (9th Cir. 2014). An 6 “extraordinary circumstance” has been defined as an external force that is beyond the inmate’s 7 control. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (citations omitted). “The diligence 8 required for equitable tolling purposes is ‘reasonable diligence,’ not ‘maximum feasible 9 diligence.’” Holland, 560 U.S. at 653 (internal citations and some quotation marks omitted). 10 Petitioner first claims entitlement to equitable tolling on the ground that he was deprived 11 of his trial transcripts from March 10, 2021 until June 23, 2021. ECF No. 7 at 2. However, even 12 if the court assumes that the statute of limitations was tolled until petitioner received his 13 transcripts, the deadline would be extended only until June 23, 2022, and the petition is still 14 nearly one month late. 15 Petitioner also states that he is entitled to equitable tolling because he has been unable to 16 reach his trial attorney—who has been suspended from practice—in order to obtain “much 17 needed attorney trial files.” Id. at 3. The Ninth Circuit has held that in some circumstances, 18 equitable tolling may be appropriate where a pro se petitioner is entirely deprived of access to 19 case materials. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (“complete lack of 20 access to a legal file may constitute an extraordinary circumstance”); Lott v. Muller, 304 F.3d 21 918, 924 (lack of access to files during temporary transfers); United States v. Battles, 362 F.3d 22 1195, 1196-97 (9th Cir. 2004) (transcripts withheld by former counsel). However, petitioner has 23 failed to demonstrate that this is such a situation. Petitioner’s general claim that he has been 24 deprived of necessary files does not make a particularized showing that the portions of the record 25 he lacked were so crucial that nothing else could be done until they were received. See Waldron- 26 Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir. 2009) (“Deprivation of legal materials is the 27 type of external impediment for which we have granted equitable tolling. But [petitioner] bears 28 the burden of showing his own diligence and that the hardship caused by lack of access to his 2 Case 2:22-cv-01304-KJM-AC Document 8 Filed 11/21/22 Page 3 of 3 1 materials was an extraordinary circumstance that caused him to file his petition . . . late.” (internal 2 citations omitted)). 3 Petitioner has failed to demonstrate that he is entitled to a period of equitable tolling 4 sufficient to make the petition timely, and he has not identified any other grounds for tolling the 5 statute of limitations. For these reasons, and those set forth in the October 20, 2022 order to show 6 cause (ECF No. 6), which is incorporated herein by reference, the petition is untimely and should 7 be dismissed. 8 9 10 11 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly assign a United States District Judge to this action. IT IS FURTHER RECOMMENDED that petitioner’s application for a writ of habeas corpus be dismissed without prejudice. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 17 objections shall be filed and served within fourteen days after service of the objections. The 18 parties are advised that failure to file objections within the specified time may waive the right to 19 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 If petitioner files objections, he may also address whether a certificate of appealability 21 should issue and, if so, why and as to which issues. Pursuant to Rule 11 of the Federal Rules 22 Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it 23 enters a final order adverse to the applicant. A certificate of appealability may issue only “if the 24 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 25 § 2253(c)(2). 26 DATED: November 21, 2022 27 28 3

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