Grecu v. Evans

Filing 87

ORDER - SECOND ORDER Denying 64 Respondent's Motion to Dismiss. Signed by Judge Edward M. Chen on 4/2/2013. (emcsec, COURT STAFF) (Filed on 4/2/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID B. GRECU,

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Petitioner,
SECOND ORDER DENYING
RESPONDENT’S MOTION TO DISMISS

v.

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For the Northern District of California

United States District Court

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No. C-07-0780 EMC

M.S. EVANS, WARDEN,

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Respondent.
___________________________________/

(Docket No. 64)

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I.

INTRODUCTION

This case is before the Court on remand from the U.S. Court of Appeals for the Ninth

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Circuit. Respondent M.S. Evans, Warden of the Salinas Valley State Prison, has filed a renewed

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Motion to Dismiss inmate Petitioner David B. Grecu’s petition for a Writ of Habeas Corpus as

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untimely under 28 U.S.C. § 2244(d), the statute of limitations established by the Antiterrorism and

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Effective Death Penalty Act of 1996 (“AEDPA”). Resp.’s Mot. to Dismiss (Docket No. 64). The

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Court previously dismissed in part Respondent’s motion by an order dated October 1, 2012. See

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Order Denying Respondent’s Mot. to Dismiss (Docket No. 77). In that Order, the Court held that

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Petitioner was entitled to an evidentiary hearing on the issue of whether equitable tolling covers the

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time period between the California Supreme Court’s denial of his state habeas petition and his filing

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of a habeas petition in federal court so as to render his habeas petition timely. Id. at 14. Petitioner

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waived his right to an evidentiary hearing and requested instead that the Court decide this remaining

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issue of equitable tolling on the parties’ briefs and supporting declarations. See Letter from Henry

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C. Su (Docket No. 82). Having considered the parties’ briefs and accompanying submissions, the

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Court finds that Petitioner Grecu is entitled to equitable tolling for the subject time period, and

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hereby DENIES the remainder of Respondent’s Motion to Dismiss for the reasons discussed herein.

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II.

FACTUAL BACKGROUND

On February 3, 1992, Petitioner pled guilty, as part of a negotiated plea agreement, to six

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counts of residential burglary (Cal. Penal Code § 459) and one count of possession of cocaine (Cal.

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Health & Safety Code § 11350). See Entry of Sentence (Docket No. 64-1, Ex. 1). On March 30,

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1992, he was sentenced to state prison for a term of ten years. Execution of the sentence, however,

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was suspended and Petitioner was placed on probation for five years. Petitioner’s probation was

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revoked and subsequently reinstated both on November 30, 1994, and December 8, 1995. Transcript
of Proceedings, September 2, 2005 (Docket No. 64-1, Ex. 2-A) at 8:26-9:4. On June 13, 1997, at a

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For the Northern District of California

United States District Court

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probation violation hearing, a California Superior Court found Mr. Grecu in violation of the terms of

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his probation and sentenced him to the previously suspended ten years.1 The California Court of

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Appeal affirmed his conviction on July 21, 1998, in an unpublished opinion. On appeal, Mr. Grecu

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had argued that his sentence should have been vacated and the matter remanded to Superior Court

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because the “trial court was unaware of its authority to modify the previously suspended ten-year

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sentence to a lower term or to reinstate probation.” Transcript of Proceedings at 9:21-10:3.

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Petitioner’s appeal did not raise the issue of ineffective assistance of counsel (a claim upon which

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the instant habeas petition is based), and, after his conviction was upheld, he did not seek review in

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the California Supreme Court. Id. at 10:3-9.

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Mr. Grecu then filed a petition for writ of habeas corpus in the California Superior Court for

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Santa Cruz County on August 23, 1999. His state habeas petition argued that his conviction was

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invalid due to ineffective assistance of counsel, prosecutorial misconduct, and the entry of

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involuntary pleas. Pet. for Writ of Hab. Corpus (Docket No. 1) (“Habeas Petition”) ¶ 9(a)(I). After

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a number of delays, including thirty continuances at the request of Mr. Grecu, the court held a

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hearing on the petition and denied it on September 2, 2005. See Transcript of Proceedings at 13, 15;

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Petitioner is currently serving a “Three Strikes” life sentence as well as a ten year
determinate sentence for burglary in Mule Creek State Prison. Decl. of David Grecu (Docket No. 1)
¶ 1; Letter RE Change of Address (Docket No. 7).

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Order Granting Mot. to Dismiss (Docket No. 22) at 2. Thereafter, Petitioner filed a petition for writ

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of habeas corpus alleging the same three grounds for relief on March 13, 2006, in the California

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Court of Appeal. The appellate court denied the petition on April 14, 2006. Habeas Petition ¶

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9(a)(II); Appellate Ct. Deny Order (Docket No. 1), Ex. Z at 2. Petitioner then filed a petition for

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writ of habeas corpus on the same grounds in the California Supreme Court on May 12, 2006. On

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January 17, 2007, that petition was also denied. Habeas Petition ¶ 9(a)(III); Supreme Ct. Deny

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Order (Docket No. 1), Ex. Z at 6. He then filed the instant federal petition, which was signed on

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January 31, 2007, and received by the federal district court on February 6, 2007. As with his state

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petition, Mr. Grecu’s federal habeas petition alleges that his conviction is invalid due to ineffective
assistance of counsel, prosecutorial misconduct, and the entry of involuntary pleas. See Habeas

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For the Northern District of California

United States District Court

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Petition at 6.

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III.

PROCEDURAL BACKGROUND AND PRIOR FINDINGS

Approximately ten months after Petitioner lodged his habeas petition with this Court,

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Respondent moved to dismiss the petition on timeliness grounds due to “the lapse of time between

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the denial of state postconviction relief by the Supreme Court of California and the filing of Mr.

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Grecu’s federal habeas petition.” Memorandum Order Reversing and Remanding (“Memorandum

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Order”) (Docket No. 51) at 3.2 See First Mot. to Dismiss (Docket No. 14). The district court

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granted the motion, but not on the grounds argued by the State. Rather, “the district court held that

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Mr. Grecu was not entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) during the pendency of

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his state habeas petitions because his petition to the state appellate court had been untimely,” which

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likewise rendered his federal habeas petition untimely under the AEDPA. Id. at 3. See also Order

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Granting Mot. to Dismiss at 4. Petitioner filed a motion for reconsideration, stating that he could

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explain the delay between the denial of his state superior court filing and his filing in the state

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appellate court on account of his placement in administrative segregation and his consequent lack of

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access to his court files. See Motion for Reconsideration (Docket No. 28). The district court denied

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Petitioner’s motion, finding that he had not established a basis for reconsideration under Fed. R. Civ.

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Although it is marked as “not for publication,” this Memorandum Order is binding upon
this Court under the doctrine of law of the case. See 9th Cir. R. 36-3(a).

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P. 60(b) and had not “provide[d] any extraordinary reason justifying relief.” Order Denying Mot.

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for Reconsideration (Docket No. 39) at 2. Petitioner appealed.

rehearing, the court reversed and remanded the matter back to this Court. Memorandum Order at 2.

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The Ninth Circuit found that “the district court’s dismissal of Mr. Grecu’s petition [could] not be

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squared with Herbst v. Cook,” id. at 4, which held that “[a] habeas court must give a petitioner

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notice of the procedural default and an opportunity to respond to the argument for dismissal,” Herbst

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v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001) (quoting Boyd v. Thompson, 147 F.3d 1124, 1128 (9th

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Cir. 1998)). Holding that “Mr. Grecu never had an adequate opportunity to respond to the argument

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that formed the basis for the district court’s judgment,” the Ninth Circuit reversed the district court’s

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For the Northern District of California

The Ninth Circuit Court of Appeals initially affirmed the district court’s ruling, but on

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United States District Court

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decision and remanded the matter “for further consideration of Mr. Grecu’s claim that he was

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entitled to statutory tolling during the pendency of his state habeas petitions.” Memorandum Order

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at 5.

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The Ninth Circuit’s Memorandum Order instructed the district court on remand to “address

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Mr. Grecu’s equitable tolling argument with respect to the filing of his federal habeas petition” if it

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were to conclude “that Mr. Grecu’s state filings were timely.” Memorandum Order at 5. It also

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noted that “Mr. Grecu has made the necessary showing for a hearing on the issue of equitable

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tolling,” citing Roy v. Lampert, 465 F.3d 964 (9th Cir. 2006), for the proposition that “[a] habeas

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petitioner . . . should receive an evidentiary hearing when he makes a good-faith allegation that

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would, if true, entitle him to equitable tolling.” Id. at 6 (quoting Roy, 465 F.3d at 969). See also id.

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at 7 (“In sum, Mr. Grecu has alleged facts that, if established, may entitle him to equitable tolling of

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the time period after the state supreme court’s denial of his state petition.”).

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Following remand, Respondent filed a renewed motion to dismiss, arguing that Mr. Grecu’s

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federal habeas petition ought to be dismissed as untimely under the § 2244(d) of the AEDPA. See

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Resp.’s Mot. to Dismiss. Respondent’s motion argues that Petitioner is neither entitled to statutory

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tolling for the time elapsed while his state habeas petitions were pending in the state courts, nor to

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equitable tolling for the period between the California Supreme Court’s denial of his state habeas

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petition and his filing of a habeas petition in federal court. This Court denied Respondent’s motion

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by the Santa Cruz Superior Court, and remained pending until the State of California completed a

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full round of collateral review with the denial of Mr. Grecu’s petition by the California Supreme

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Court on January 17, 2007, and thus Petitioner was entitled to statutory tolling under 28 U.S.C. §

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2244(d)(2).3 See Order Denying Respondent’s Mot. to Dismiss at 9, 11. The Court deferred ruling

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on Petitioner’s claim to equitable tolling for the period between the California Supreme Court’s

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denial of his state habeas petition and his filing of a habeas petition in federal court, holding instead

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that Petitioner was entitled to an evidentiary hearing on the issue of whether equitable tolling covers

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this time period so as to render his habeas petition timely. Id. at 14. Petitioner waived his right to

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an evidentiary hearing through counsel by a letter dated November 8, 2012, and requested that the

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For the Northern District of California

in part, holding that Mr. Grecu’s habeas petition was properly filed at the time it was first reviewed

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United States District Court

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Court decide this remaining issue of equitable tolling on the parties’ briefs and supporting

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declarations. See Letter from Henry C. Su.4 Thus, the only matter that remains undecided is

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whether Petitioner is entitled to equitable tolling.

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IV.
A.

DISCUSSION

Writ of Habeas Corpus
This Court may entertain a petition for writ of habeas corpus on “behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v.

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Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order directing the

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“[t]he time during which a properly filed application for State postconviction 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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Section 2244(d)(2) provides,

28 U.S.C. § 2244(d)(2).
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Prior to waiving his right to an evidentiary hearing, Petitioner indicated “that it may be
possible for the Court to take in the evidence relevant to the equitable tolling claim through
declarations submitted with the motion papers in lieu of an evidentiary hearing with live testimony,”
in part because the “putative witnesses have [already] submitted declarations, the contents of which
do not appear to be disputed or to be in conflict with one another.” Parties’ Joint Status Conference
Statement (Docket No. 78) at 2.

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respondent to show cause why the writ should not be granted, unless it appears from the application

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that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Under Rule 4 of the

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Rules Governing Section 2254 Cases In The United States District Courts, a district court may also

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order the respondent to file another pleading where neither summary dismissal nor service is

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appropriate. See Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. following § 2254 (“If the

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petition is not dismissed, the judge must order the respondent to file an answer, motion, or other

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response within a fixed time, or to take other action the judge may order.”).

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B.

Statute of Limitations

state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences

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For the Northern District of California

The AEDPA created a statute of limitations on petitions for writs of habeas corpus filed by

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United States District Court

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must be filed within one year of the latest of the date on which: (1) the judgment became final after

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the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to

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filing an application created by unconstitutional state action was removed, if such action prevented

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petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if

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the right was newly recognized by the Supreme Court and made retroactive to cases on collateral

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review; or (4) the factual predicate of the claim could have been discovered through the exercise of

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due diligence. See 28 U.S.C. § 2244(d)(1). Any time elapsed during which a properly filed

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application for state post-conviction or other collateral review is pending is excluded from §

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2244(d)(1)’s one-year time limit. See 28 U.S.C. § 2244(d)(2).

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It is uncontested that the one-year statute of limitations in this matter commenced on August

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31, 1998, 40 days after the California Court of Appeal filed its opinion denying Petitioner’s direct

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appeal of his conviction. See Cal. Rules of Court Rule 8.366(b)(1) (providing that Court of Appeal

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decisions in criminal appeals become final 30 days after filing), and Rule 8.500(e)(1) (requiring that

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petitions for review to the California Supreme Court be filed within 10 days after the Court of

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Appeal decision becomes final). See also Smith v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002),

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overruled on other grounds by Pace v. DiGuglielmo, 544 U.S. 408 (2005) (“AEDPA’s limitation

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period began to run from the date [petitioner’s] judgment of conviction became final, based on the

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expiration of the time for seeking direct review from the California Court of Appeal. Under

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California law, [petitioner’s] conviction became final . . . forty (40) days after the California Court

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of Appeal filed its opinion.”). Petitioner filed his writ of habeas corpus in the California Superior

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Court for the County of Santa Cruz on August 23, 1999 – eight days prior to the expiration of the

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limitations period. Although Petitioner did not file his federal habeas petition until February 6,

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2007, almost seven years later (see Habeas Petition (Docket No. 1)), this Court has already held that

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the limitations period was statutorily tolled under 28 U.S.C. § 2244(d)(2) from the time his writ was

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filed with the Superior Court on August 23, 1999, until it was denied on appeal by the California

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Supreme Court on January 17, 2007.5 See Order Denying Respondent’s Mot. to Dismiss at 9, 11.

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The statute of limitations began to run once again on January 18, 2007, and expired eight
days later on January 26, 2007. Mr. Grecu did not file his habeas petition in federal court until

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For the Northern District of California

United States District Court

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February 6, 2007, twelve days after the limitations period had run. Absent further equitable tolling

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of the statute of limitations, Petitioner’s federal habeas corpus petition is untimely under the

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AEDPA.6

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C.

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Equitable Tolling
Federal courts recognize that the AEDPA statute of limitations may be equitably tolled in

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certain circumstances. Holland v. Florida, 130 S. Ct. 2549, 2554 (2010) (“We here decide that the

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timeliness provision in the federal habeas corpus statute is subject to equitable tolling.”); id. at 2560

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(“like all 11 Courts of Appeals that have considered the question, we hold that § 2244(d) is subject

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to equitable tolling in appropriate cases”). In the Ninth Circuit, equitable tolling has been found

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warranted where a delay in filing a habeas petition by a Spanish-speaking inmate was attributable to

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a lack of access to Spanish-language legal materials and an inability to obtain translation assistance.

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See Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 2006). Equitable tolling has also been found

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appropriate for periods during which a habeas petitioner was housed in administrative segregation

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The California Supreme Court’s denial of a petition for habeas relief is final upon filing.
See Cal. Rules of Court rule 8.532(b)(2)(C); Phelps v. Alameda, 366 F.3d 722, 724 n.1 (9th Cir.
2004).
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Both parties concede that Petitioner’s federal habeas corpus petition was filed twelve days
after the expiration of the statute of limitations. See Petitioner’s Brief on Equitable Tolling (Docket
No. 83) at 4; Respondent’s Brief on Equitable Tolling (Docket No. 84) at 1.

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and denied access to his legal materials, recognizing that it was “unrealistic to expect [a habeas

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petitioner] to prepare and file a meaningful petition on his own within the limitations period without

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access to his legal file.” Espinoza-Matthews v. California, 432 F.3d 1021, 1027 (9th Cir. 2005)

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(internal citation omitted).

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“[A] litigant seeking equitable tolling [of the one-year AEDPA limitations period] bears the

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burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that

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some extraordinary circumstance stood in his way.” Holland v. Florida, 130 S. Ct. at 2562 (quoting

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Pace v. DiGuglielmo, 125 S.Ct. at 1814). “[T]he threshold necessary to trigger equitable tolling

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under [the] AEDPA is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d
1063, 1066 (9th Cir. 2002) (internal citations and quotation marks omitted). This high standard

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For the Northern District of California

United States District Court

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effectuates the “AEDPA’s statutory purpose of encouraging prompt filings in federal court in order

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to protect the federal system from being forced to hear stale claims.” Guillory v. Roe, 329 F.3d

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1015, 1018 (9th Cir. 2003) (internal citations and quotation marks omitted). However, “[w]hen

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considering whether to apply equitable tolling, the Supreme Court has emphasized the need for

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‘flexibility’ and for ‘avoiding mechanical rules.’” Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir.

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2012) (quoting Holland, 130 S.Ct. at 2563). “A court reviewing a habeas petition should adhere to

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‘a tradition in which courts of equity have sought to relieve hardships which, from time to time, arise

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from a hard and fast adherence to more absolute legal rules, which, if strictly applied, threaten the

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evils of archaic rigidity.’” Nedds, 678 F.3d at 780 (quoting Holland, 130 S.Ct. at 2563). Equitable

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tolling determinations are thus “highly fact-dependent.” Whalem/Hunt v. Early, 233 F.3d 1146,

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1148 (9th Cir. 2000) (en banc) (per curiam). See also Lott v. Mueller, 304 F.3d 918, 923 (9th Cir.

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2002) (equitable tolling determinations “turn[ ] on an examination of detailed facts”); Nedds, 678

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F.3d at 780 (“The grounds for granting equitable tolling are ‘highly fact-dependent.’”) (quoting

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Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003)). “[C]ourts of equity can and do draw upon

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decisions made in other similar cases for guidance . . . but with awareness of the fact that specific

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circumstances, often hard to predict in advance, could warrant special treatment in an appropriate

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case.” Holland v. Florida, 130 S. Ct. at 2563.

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The parties disagree over whether Petitioner is entitled to equitable tolling which would

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preserve the timeliness of his federal habeas petition. Petitioner argues that his placement in

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administrative segregation for the months leading up to the expiration of the statute of limitations

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entitles him to equitable tolling. See Petitioner’s Brief on Equitable Tolling (“Petitioner’s Brief”)

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(Docket No. 83) at 8 (“Although his petition was therefore twelve days late, Mr. Grecu is entitled to

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equitable tolling for the slightly late filing because, as this Brief explains, he has established both

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diligence and extraordinary circumstance in this case.”). Respondent, in opposition, contends that

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Mr. Grecu may not avail himself of equitable tolling because he was neither diligent in pursuing his

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case, nor can his delay in filing be attributed to extraordinary circumstance. See Respondent’s Brief
on Equitable Tolling (“Respondent’s Brief”) (Docket No. 84) at 4, 6.

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For the Northern District of California

United States District Court

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Following the Ninth Circuit’s instruction on remand, this Court ordered an evidentiary

Legal Standard

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hearing “to determine if Petitioner is entitled to equitable tolling for the period between the

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California Supreme Court’s denial [of his state petition] and the filing of the federal petition.” Order

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Denying Respondent’s Mot. to Dismiss at 14. “In habeas proceedings, an evidentiary hearing is

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required when the petitioner’s allegations, if proven, would establish the right to relief.” Totten v.

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Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). To succeed on his claim to equitable tolling, Mr.

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Grecu must show by a preponderance of the evidence that he “has been pursuing his rights

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diligently,” and that “some extraordinary circumstance stood in his way.” Holland v. Florida, 130

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S. Ct. at 2562. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (In federal habeas corpus

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proceedings, “it is the petitioner’s burden to prove his custody is in violation of the Constitution,

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laws or treaties of the United States,” and “[t]his burden of proof must be carried by a

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preponderance of the evidence.”) (quoting Snook v. Wood, 89 F.3d 605, 609 (9th Cir. 1996) and

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McKenzie v. McCormick, 27 F.3d 1415, 1419 (9th Cir. 1994)). See also Sumner v. Mata, 449 U.S.

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539, 551 (1981) (Unless otherwise provided by statute, the “usual [civil] ‘preponderance of the

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evidence’ standard” applies in a habeas corpus proceeding, and “the burden shall rest on the habeas

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petitioner.”). As noted, Petitioner waived his right to an evidentiary hearing and requested that the

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Court decide this remaining issue of equitable tolling on the basis of the parties’ briefs and

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supporting declarations. See Letter from Henry C. Su.

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2.

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As a threshold matter, a petitioner must show that “some extraordinary circumstance stood in

Extraordinary Circumstance

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his way” to prevent the timely filing of a habeas petition in order to receive equitable tolling.

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Holland, 130 S. Ct. at 2562. The extraordinary circumstance must be “beyond a prisoner’s control

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[and] make it impossible to file a petition on time.” Espinoza-Matthews, 432 F.3d at 1026 (quoting

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Spitsyn v. Moore, 345 F.3d 799 (9th Cir. 2003)) (internal quotation marks and citations omitted); but

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see Espinoza-Matthews, 432 F.3d at 1026 n.5 (acknowledging potential abrogation of “impossible to

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For the Northern District of California

United States District Court

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file” standard).
Mr. Grecu argues that his placement in the administrative segregation unit at Salinas Valley

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State Prison on November 8, 2006, up to and through the expiration of the AEDPA statute of

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limitations on January 26, 2007, constitutes an “extraordinary circumstance” warranting equitable

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tolling. Petitioner’s Brief at 4-5, 12-16. The uncontested evidence submitted by Petitioner indicates

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that he was placed in administrative segregation for “[b]attery on inmate,” was “found guilty” of

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battery by the Prison’s Institutional Classification Committee (ICC), and was sentenced to a three

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month term in the administrative segregation unit.7 Declaration of David Grecu (“First Grecu

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Declaration”) (Docket No. 67), Ex. B at 1. The ICC’s record of its proceedings indicates that

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Petitioner was to be released from administrative segregation on January 17, 2007 – coincidentally,

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the same day that the California Supreme Court denied his habeas petition – but, due to “enemy

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concerns” and the presence of a “documented confidential enemy,” Petitioner remained in

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administrative segregation for the remainder of his housing at Salinas Valley State Prison until his

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transfer to Mule Creek State Prison around March of 2007. Id.; see also Petitioner’s Letter RE

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Change of Address (Docket No. 7). The ICC record also indicates that “[a] review of subject’s

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Central file does not reflect a pervasive pattern of violence or predatory behavior toward cellmates,”

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Regarding this battery charge, Mr. Grecu states, “I was violently assaulted, I was forced to
defend myself.” First Grecu Declaration at 2. The ICC record does not indicate whether Petitioner
acted in self defense.

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but that the Committee “elect[ed] not to Mitigate” Petitioner’s sentence “due to disciplinary

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history.”8 First Grecu Declaration, Ex. B at 1. While in administrative segregation, Petitioner states

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that he was denied access to his legal files. First Grecu Declaration, Ex. B at 2 (“for seven (7)

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months I was denied access to all my legal work”); id. at 3 (“for the 7 months I was confined to

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[administrative segregation] prison staff was refusing to provide me my legal work”). Respondent

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does not dispute this fact.

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The Ninth Circuit has repeatedly found that lack of access to one’s legal files may constitute

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an extraordinary circumstance entitling a habeas petitioner to equitable tolling. See Spitsyn v.

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Moore, 345 F.3d 796 (equitable tolling appropriate when a prisoner could not timely access legal
files in possession of his attorney to prepare a pro se habeas petition); Espinoza-Matthews, 432 F.3d

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For the Northern District of California

United States District Court

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at 1028 (equitable tolling appropriate where prisoner in administrative segregation was denied

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access to legal files for eleven months and, following release from administrative segregation, “had

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only slightly over a month with his legal file to try to prepare a proper petition.”); Lott v. Mueller,

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304 F.3d 918 (equitable tolling may be warranted where petitioner was denied access to the legal

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files related to his federal habeas petition for eighty-two days). Indeed, in the Memorandum Order

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remanding Petitioner’s case to this Court, the Ninth Circuit specifically noted that “placement in

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administrative segregation” as alleged by the Petitioner “may constitute an extraordinary

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circumstance for purposes of equitable tolling.” Memorandum Order at 6 (citing Espinoza-

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Matthews, 432 F.3d 1021). “[W]ithout access to his legal file,” it is “unrealistic to expect a habeas

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petitioner to prepare and file a meaningful petition on his own within the limitations period.”

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Espinoza-Matthews, 432 F.3d at 1027 (citation and quotation marks omitted).

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“[E]ven where a petitioner had access to his legal files on the days before his AEDPA

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limitations period expired, . . . earlier events may have so disabled him as to make a timely filing

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impossible.” Id., 432 F.3d at1028 n.8 (citation and quotation marks omitted). Further, any period of

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confinement in administrative segregation “makes compliance with procedural deadlines difficult

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A separate section of the ICC record indicates that Petitioner’s disciplinary history
includes, among other things, mutual combat, behavior which could lead to violence, refusal to obey
orders, threatening staff, threatening crime, disruptive behavior, disobeying orders, conduct that may
lead to violence, jumping a fence, and altering a weight card. First Grecu Declaration, Ex. B at 1.

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because of restrictions on [a] prisoner’s ability to monitor [a] lawsuit’s progress,” particularly when

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that confinement immediately precedes a critical litigation deadline. Rand v. Rowland, 154 F.3d

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952, 958 (9th Cir. 1998) (quoting Houston v. Lack, 487 U.S. 266, 270-71 (1988)).

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Petitioner alleges that the delay in filing his federal habeas petition was on account of his

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placement in administrative segregation without access to his legal files. The Court finds that the

6

evidence before it proves the truth of this allegation by a preponderance of the evidence. Following

7

Ninth Circuit precedent, the Court finds that this lack of access to legal materials sufficiently

8

impaired Mr. Grecu’s ability to timely file his habeas petition so as to entitle him to equitable

9

tolling.
Respondent contests Mr. Grecu’s claimed lack of access to his legal files during this period

11
For the Northern District of California

United States District Court

10

by noting statements in his declaration where Petitioner admits to receiving mail while in

12

administrative segregation. Respondent’s Motion at 8. See First Grecu Declaration at 2 (“On

13

December 01’ 2006, I received Salinas Valley-SP, re-route mail it was 2 weeks late, it was a letter

14

from my attorney dated November 14’ 2006 . . . I immediately wrote my lawyer and asked him to

15

place the date on my habeas declaration and to file it as soon as the California Supreme Court

16

[ruled]”). The fact that Petitioner apparently received one piece of mail and may have been able to

17

dispatch a reply letter is not, in the Court’s view, sufficient to show that Mr. Grecu had such a level

18

of access to his legal files so as to “prepare and file a meaningful petition on his own within the

19

limitations period.” Espinoza-Matthews, 432 F.3d at 1027. The record shows, as Respondent

20

acknowledges, that “petitioner mailed his signed [habeas] petition to [his friend] Couenhoven one

21

week before he was placed in administrative segregation.” Respondent’s Brief at 8 (emphasis in

22

original). Petitioner alleges, and Respondent does not dispute, that Couenhoven “took possession of

23

my already prepared federal U.S. Northern District habeas petition” and that Couenhoven

24

maintained “total control of my Federal habeas Corpus Petition and separate volume of Exhibits.”

25

First Grecu Declaration at 3. Under these circumstances, the Court agrees that Mr. Grecu “was

26

dependent on . . . Couenhoven[] to properly file [his] legal documents” while he was confined in

27

administrative segregation. Id. Absent some showing by Respondent that Petitioner was able to

28

12

1

make a copy of that petition, Petitioner’s subsequent placement in administrative segregation

2

materially deprived him of access to what was apparently the only copy of his habeas petition.

3

Petitioner has proven by a preponderance of the evidence that his placement in

4

administrative segregation and lack of meaningful access to his legal materials, including the draft of

5

his habeas petition, rises to the level of an “extraordinary circumstance” entitling him to equitable

6

tolling. See Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (“And a person is plainly

7

‘prevented’ from filing a pleading for some period of time if he is deprived of the sole copy of that

8

pleading, something that the petitioner asserts happened to him here.”). Petitioner generally asserts

9

that he was “denied access to all my legal work” (First Grecu Declaration at 2, 3); the state does not

11
For the Northern District of California

United States District Court

10

argue that Grecu had the ability to use a prison law library or access other relevant materials.
Respondent also argues that Mr. Grecu “cannot rely on his placement in [administrative

12

segregation” as grounds for equitable tolling since he is the one who “caused his placement [there].”

13

Respondent’s Brief at 5. Respondent disputes Petitioner’s claim that he acted in self-defense during

14

the November 8, 2006, altercation by highlighting the fact that the ICC found him guilty of battery,

15

and the fact that the ICC record suggests Mr. Grecu has an “extensive disciplinary history.” Id. at 6.

16

See First Grecu Declaration, Ex. B at 1 (ICC Record). The ICC record is not detailed enough to

17

conclude whether Petitioner instigated the altercation that led to his placement in segregated

18

housing, or whether he acted in self defense as he claims. However, even if Mr. Grecu was

19

responsible for his initial placement in administrative segregation, the record reflects, and

20

Respondent does not dispute, that for the period after January 7, 2007 – the day on which the Mr.

21

Grecu’s AEDPA statute of limitations once again began to run – Petitioner was retained in

22

administrative segregation for his own protection. See First Grecu Declaration, Ex. B at 1 (“ICC

23

notes that the inmate [minimum eligible release date] expires on 1-17-07, in which it now creates an

24

enemy concerns . . . ICC elects to retain in [administrative segregation unit]”). The Ninth Circuit

25

has held that when a petitioner who is deprived of access to his legal materials is unable to timely

26

file a habeas petition because he is being held in administrative segregation for his own protection,

27

such deprivation is an “extraordinary circumstance” for equitable tolling purposes. See e.g.

28

Espinoza-Matthews, 432 F.3d 1021 (equitable tolling warranted for petitioner placed in

13

1

administrative segregation for his own protection who was denied access to his legal files). Thus,

2

for the critical eight days remaining in Petitioner’s AEDPA limitations period after the California

3

Supreme Court issued its final decision, Mr. Grecu was held without access to his legal materials for

4

his own protection. Respondent fails to demonstrate that Petitioner is not entitled to equitable

5

tolling for these reasons.

6

3.

7

To receive equitable tolling, a petitioner must also show that “he has been pursuing his rights

Diligence

8

diligently.” Holland, 130 S. Ct. at 2562. “The diligence required for equitable tolling purposes is

9

reasonable diligence, not maximum feasible diligence.” Id. at 2565 (internal citations and quotation
marks omitted). Generally, “[w]hen external forces, rather than a petitioner’s lack of diligence,

11
For the Northern District of California

United States District Court

10

account for the failure to file a timely claim, equitable tolling may be appropriate.” Lott v. Mueller,

12

304 F.3d at 922. However, “if the person seeking equitable tolling has not exercised reasonable

13

diligence in attempting to file, after the extraordinary circumstances began, the link of causation

14

between the extraordinary circumstances and the failure to file is broken.” Spitsyn v. Moore, 345

15

F.3d at 802 (quoting Valverde v. Stinson, 224 F.3d at 134).

16

The uncontested evidence submitted by Petitioner indicates that on November 1, 2006, one

17

week before his altercation with another prisoner that led to his placement in administrative

18

segregation, Mr. Grecu sent a signed but undated copy of his federal habeas petition to Paul

19

Couenhoven, a staff attorney with the Sixth District Appellate Program, for a quick review. First

20

Grecu Declaration at 2; id., Ex. A at 1 (Letter from Couenhoven expressing willingness to “spend

21

fifteen minutes” reviewing the petition). After his placement in administrative segregation on

22

November 9, 2006, Petitioner contacted Mr. Couenhoven and requested that he file the habeas

23

petition “as soon as the California Supreme Court decides/denies [the] pending habeas petition.”

24

First Grecu Declaration at 2. See also Declaration of Paul Couenhoven (“Couenhoven Declaration”)

25

(Docket No. 69) ¶¶ 8-10. In reply, Mr. Couenhoven stated “I can certainly file the petition for you,”

26

but declined to “‘thumb through’ the exhibits” or do any substantive work on the petition. First

27

Grecu Declaration, Ex. A at 2 (Letter from Couenhoven stating, inter alia, “I will not retype

28

anything, and I will not rip out exhibits. I do not have the time to redo your habeas petition.”).

14

1

Despite an apparent earlier request from the Petitioner for a legal opinion regarding the timeliness of

2

his petition, this letter from Mr. Couenhoven offers no legal advice on the timeliness of Mr. Grecu’s

3

petition. See id. On January 30, 2007, five days after the AEDPA statute of limitations had run, Mr.

4

Couenhoven wrote to Petitioner indicating that he had paid the filing fee and mailed Mr. Grecu’s

5

petition to this Court, and provided Petitioner with a copy of the California Supreme Court’s order

6

denying his state habeas petition. First Grecu Declaration, Ex. A at 4. Couenhoven’s letter also

7

advises Petitioner on how to request that this Court appoint an attorney to assist him during the

8

pendency of his habeas petition. Id. Mr. Grecu’s federal habeas petition was not received by the

9

Court until February 6, 2007, 12 days after the statute of limitations had run.
Petitioner argues that he satisfied the diligence requirement for showing entitlement to

11
For the Northern District of California

United States District Court

10

equitable tolling by preparing a draft of his federal habeas petition in advance of the California

12

Supreme Court’s ruling on his state petition, and by enlisting the help of “his friend, Mr.

13

Couenhoven” to “look over the draft.” Petitioner’s Brief at 9. Upon losing access to his legal files

14

with his placement in administrative segregation, Mr. Grecu arranged for Mr. Couenhoven to file the

15

draft petition in his possession as soon as the California Supreme Court made its ruling. Id. at 10.

16

Petitioner argues that these acts show Mr. Grecu acted with reasonable diligence under the

17

circumstances to comply with AEDPA’s statute of limitations.

18

The Court is cognizant of the fact that Petitioner was unrepresented by counsel at the time he

19

filed his federal habeas petition (discussed infra). Recent Ninth Circuit decisions “reaffirm the clear

20

principle that, even though pro se status alone is not enough to warrant equitable tolling, it informs

21

and colors the lens through which we view the filings, and whether these filings made sufficient

22

allegations of diligence.” Roy v. Lampert, 465 F.3d at 970 (citing Balistreri v. Pacifica Police

23

Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (“This court recognizes that it has a duty to ensure that pro

24

se litigators do not lose their right to a hearing on the merits of their claim due to ignorance of

25

technical procedural requirements.”)). Bearing Petitioner’s pro se status in mind, the Court finds

26

that Mr. Grecu acted with reasonable diligence in preparing his federal habeas petition. Aware of

27

the possibility that the California Supreme Court could issue its ruling on his state habeas petition at

28

any time, Petitioner prepared an advance draft of his federal petition and sent it to his friend, Mr.

15

1

Couenhoven, for a cursory review. When he lost access to his legal files, he contacted his friend and

2

asked him to submit the draft petition as soon as the California Supreme Court issued its decision.

3

These acts are enough to satisfy the “reasonable diligence” standard articulated by the U.S. Supreme

4

Court in Holland. To hold otherwise would impose upon a pro se petitioner an unreasonably high

5

burden, especially given that this petitioner’s sole copy of the habeas petition was in the possession

6

of another person, and his legal files were inaccessible. Under the circumstances, it was reasonable

7

for Petitioner to rely on Mr. Couenhoven to mail the petition as soon as the California Supreme

8

Court ruling was issued. Indeed, enlisting the help of Mr. Couenhoven arguably resulted in the

9

federal petition being filed much earlier than would have been the case had Mr. Grecu been left to
do it on his own, since he was not released from administrative segregation and did not regain access

11
For the Northern District of California

United States District Court

10

to his legal files until several months after Mr. Couenhoven mailed the petition on January 30, 2007.

12

Respondent counters that this Court’s diligence examination “does not pertain solely to the

13

filing of the federal habeas petition, but [extends to] the time period that petitioner is exhausting

14

state court remedies as well.” Respondent’s Brief at 2 (citing Roy v. Lampert, 465 F.3d at 969).

15

Respondent argues that “Petitioner waited over seven years after his guilty plea and placement on

16

probation to file his first state court habeas petition challenging the validity of his plea.”

17

Respondent’s Brief at 4. Acknowledging that “[h]e was not incarcerated for most of that period,”

18

Respondent contends nonetheless that “[t]he fact that petitioner had only eight days after the

19

California Supreme Court’s denial of his state habeas petition in which to file his federal petition is

20

attributable solely to petitioner’s prior failure to exercise diligence.” Respondent’s Brief at 4.

21

Respondent’s argument is insufficient to rebut Petitioner’s showing of diligence for three

22

reasons. First, for a substantial portion of this period, the challenge to the suspended sentence was

23

in essence premature; he was not affected by the sentence until probation was revoked in 1997.

24

Respondent cites no authority from this Circuit or any other suggesting that a habeas petitioner fails

25

to act diligently when he chooses not to challenge a suspended sentence on direct appeal until

26

probation is revoked and he faces incarceration on the previously suspended sentence. Cf. Pace v.

27

DiGuglielmo, 544 U.S. at 419 (denying equitable tolling, in part, because “petitioner [sat] on his

28

rights for years” before filing for state post-conviction review); Bryant v. Arizona Atty. Gen., 499

16

1

F.3d 1056, 1061 (9th Cir. 2007) (denying equitable tolling, in part, because petitioner “made no

2

effort to seek relief between the denial of his last [state post-conviction review] petition in October

3

1994 and the filing of the motion to recall the mandate in March 2000”).

4

Second, Petitioner did timely file his petition with the Superior Court once his conviction

5

became final on direct appeal; and as this Court found, he pursued that petition through the state

6

courts in a timely fashion.

7

Third, the Ninth Circuit has repeatedly held that “‘[t]he person seeking equitable tolling

circumstances began.’” Roy, 465 F.3d at 971 (quoting Spitsyn, 345 F.3d at 802) (emphasis in

10

original). Here, the extraordinary circumstance claimed by Mr. Grecu was his placement in

11
For the Northern District of California

[must demonstrate] reasonable diligence in attempting to file ... after the extraordinary

9

United States District Court

8

administrative segregation, and his consequent lack of access to his legal files. This “circumstance”

12

did not come into being until November 8, 2006 while his petition was pending before the California

13

Supreme Court. Thus, as Petitioner argues, “the diligence inquiry in this case properly focuses on

14

the twelve-day delay in filing the federal petition” after the California Supreme Court denied the

15

petition. Petitioner’s Brief at 11. While the Ninth Circuit has also considered important the fact that

16

a habeas petitioner pursued his or her claim “within a reasonable period of time before the external

17

impediment . . . came into existence,” Roy, 465 F.3d at 972, Respondent has failed to demonstrate

18

that Petitioner did not act timely before the external impediment occurred in his case. Nor has

19

Respondent cited a single authority holding that filing a habeas petition only eight days before the

20

expiration of the AEDPA statute of limitations amounts to a failure to diligently pursue one’s claim.

21

Cf. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (no finding of diligence where petitioner

22

waited more than a year before the extraordinary circumstance came into being) (cited by Roy, 465

23

F.3d at 972) (emphasis added); LaCava v. Kyler, 398 F.3d 271, 272 (3d Cir. 2005) (no finding of

24

diligence where petitioner waited twenty-one months before the extraordinary circumstance arose)

25

(cited by Roy, 465 F.3d at 972).

26

In sum, the conditions giving rise to Petitioner’s claim of extraordinary circumstance

27

occurred prior to the expiration of the AEDPA statute of limitations. By producing uncontroverted

28

evidence that Petitioner took reasonable steps to file his federal habeas petition before the statute of

17

1

limitation expired, Mr. Grecu has shown that he was diligent in pursuing his claim. See Roy, 465

2

F.3d at 973 (“By alleging what they did to pursue their claims and complain about their situations,

3

and alleging that they did so before AEDPA’s statute of limitations expired, Roy and Kephart have

4

done enough to demonstrate that they were not the cause of their tardiness, and that they would have

5

filed on time but for their transfer to Arizona.”) (emphasis added).

6

4.

7

Respondent argues that equitable tolling should not be afforded Petitioner in this matter

Attorney Negligence

in filing his client’s federal habeas petition on time. See Respondent’s Brief at 3 (“Negligence on

10

the part of a prisoner’s post conviction attorney does not qualify as cause” for equitable tolling.)

11
For the Northern District of California

because Paul Couenhoven, serving as Mr. Grecu’s attorney and not as a mere friend, was negligent

9

United States District Court

8

(citation and quotation marks omitted). As a general matter, equitable tolling is unavailable when an

12

attorney’s negligent conduct causes a client’s habeas petition to be filed late, such as when the

13

attorney “forget[s] to file the habeas petition on time, mail[s] the petition to the wrong address, or

14

fail[s] to do the requisite research to determine the applicable deadline.” Holland, 130 S. Ct. at 2567

15

(Alito, J. concurring). “Cause for a procedural default exists where something external to the

16

petitioner, something that cannot fairly be attributed to him, impeded his efforts to comply” with a

17

procedural rule like the AEDPA’s statute of limitations. Maples v. Thomas, 132 S. Ct. 912, 922

18

(2012) (citations and quotation marks omitted). “Negligence on the part of a prisoner’s

19

postconviction attorney does not qualify as cause . . . because the attorney is the prisoner’s agent,

20

and under well-settled principles of agency law, the principal bears the risk of negligent conduct on

21

the part of his agent.” Id. (citations and quotation marks omitted). “Thus, when a petitioner’s

22

postconviction attorney misses a filing deadline, the petitioner is bound by the oversight and cannot

23

rely on it to establish cause.” Id. (citations and quotation marks omitted).

24

The parties disagree over whether Mr. Couenhoven was acting as Petitioner’s attorney when

25

he mailed the federal habeas petition on January 30, 2007. Respondent argues that the

26

correspondence submitted by the Petitioner, as well as his own declarations, establish that

27

“petitioner was clearly proceeding with the assistance of counsel” during the time period in

28

question. Respondent’s Brief at 7. Petitioner counters that “Mr. Couenhoven was not acting as Mr.

18

1

Grecu’s counsel and agent with respect to the federal petition, but instead was providing only

2

ministerial services.” Petitioner’s Brief at 18.

3

Despite marking his correspondence with the heading “CONFIDENTIAL ATTORNEY

lawyer” and “my counsel” in his declarations, see First Grecu Declaration at 2; Second Declaration

6

of David Grecu (“Second Grecu Declaration”) (Docket No. 68) ¶ 3, Couenhoven insists that he was

7

not acting as Grecu’s attorney at the time he reviewed and mailed Grecu’s federal habeas petition.

8

Mr. Couenhoven, who had served as Petitioner’s attorney while his state habeas petition was on

9

appeal in the Sixth District, states that his “appointment as Mr. Grecu’s lawyer ceased” on

10

“September 22, 1998,” when the Sixth District rejected his client’s petition. Couenhoven

11
For the Northern District of California

CLIENT COMMUNICATION,” and despite Mr. Grecu referring to Mr. Couenhoven as “my

5

United States District Court

4

Declaration ¶ 4. Couenhoven states that he sent a letter to Petitioner on April 16, 1998, informing

12

Mr. Grecu that he “could not represent him after the appeal was over.” Id. ¶ 4. Regarding the

13

present federal petition, Mr. Couenhoven states “I had merely agreed, as a friend, to help Mr. Grecu

14

file his habeas petition in propria persona in this Court,” and that he explained to the Petitioner that

15

he “was not agreeing to do anything else other than to file the petition for him after the Supreme

16

Court of California had ruled on his pending habeas petition.” Id. ¶¶ 7-8. Mr. Couenhoven wrote a

17

letter to Petitioner on November 20, 2006, regarding the petition in which he reiterated that he “was

18

not going to redo his federal habeas petition or his exhibits, or give him any legal advice.”

19

Couenhoven Declaration ¶ 9. See also Couenhoven Declaration, Ex. C (November 20, 2006, Letter

20

from Couenhoven stating, inter alia, “I do not have the time to check a petition nor exhibits which

21

are as voluminous as yours,” “you should ask for appointment of counsel,” and “I do not remember

22

enough about the timing of your case to suggest whether you might have a problem with

23

timeliness.”). Couenhoven states, and the record before this Court confirms, that “at no time [has

24

Couenhoven] appeared as counsel for Mr. Grecu in this action or filed any other papers on his

25

behalf. Id. ¶ 11.

26

“An attorney-client relationship is not created by the unilateral declaration of one party to the

27

relationship.” Koo v. Rubio’s Restaurants, Inc., 109 Cal. App. 4th 719, 729 (2003) (citing Fox v.

28

Pollack, 181 Cal. App. 3d 954, 959 (1986), for the proposition that individuals cannot unilaterally

19

1

create an attorney-client relationship without the agreement of the attorney). “One of the most

2

important facts” in discerning the existence of an attorney-client relationship is “the expectation of

3

the client based on how the situation appears to a reasonable person in the client’s position.”

4

Certain Underwriters at Lloyd’s London v. Argonaut Ins. Co., 264 F. Supp. 2d 914, 920 n.1 (N.D.

5

Cal. 2003) (citing Responsible Citizens v. Superior Court, 16 Cal. App. 4th 1717, 1733 (1993)).

6

The evidence before the Court establishes that a reasonable person in Petitioner’s position

7

would not believe that an attorney-client relationship existed between Mr. Grecu and Mr.

8

Couenhoven at the time in question. Couenhoven’s letters to Petitioner as well as Couenhoven’s

9

sworn declaration make clear that he would not act as Mr. Grecu’s attorney in this matter.
Couenhoven’s written declinations to provide Petitioner with legal advice and his offer to perform

11
For the Northern District of California

United States District Court

10

nothing more than a cursory review of Mr. Grecu’s habeas petition are sufficient to indicate to a

12

reasonable person in Petitioner’s position that an attorney-client relationship was not being formed.

13

Couenhoven’s practice of marking his correspondence with the heading “CONFIDENTIAL

14

ATTORNEY CLIENT COMMUNICATION” as a precautionary measure in order to protect its

15

contents from prison officials does not alter this fact, given that Couenhoven formerly served as

16

Petitioner’s attorney, and Couenhoven had a continuing duty to preserve the confidence of his client

17

regarding information obtained during the course of that relationship. See Couenhoven Declaration

18

¶ 7 (“I put that legend on my letters to Mr. Grecu not because I was representing him, but because

19

we had a prior attorney-client relationship (from 1997 to 1998) and because without that legend,

20

prison officials would open Mr. Grecu’s mail from me and read it.”).

21

In sum, Respondent has not shown that Mr. Couenhoven was acting as Petitioner’s attorney

22

at the time he mailed Mr. Grecu’s federal habeas petition to this Court, and, consequently, the tardy

23

filing of Mr. Grecu’s petition cannot be attributed to attorney negligence. Cf. Stillman v. LaMarque,

24

319 F.3d 1199, 1201 (9th Cir. 2003) (“The lawyer prepared Stillman’s habeas petition and arranged

25

with prison officials for Stillman to sign the document. She then filed the document once Stillman

26

had signed it. When a lawyer prepares legal documents on behalf of a prisoner and arranges for

27

those documents to be signed and filed, the prisoner is not proceeding without assistance of

28

counsel.”) (emphasis added); Birbrower, Montalbano, Condon & Frank v. Superior Court, 17

20

1

Cal.4th 119, 128 (1998) (defining the practice of law in California to include the preparing of legal

2

documents and the giving of legal advice).

3

V.

CONCLUSION

4

For the reasons stated above, the Court finds that Petitioner has met his burden to show

5

entitlement to equitable tolling. The Court, therefore, DENIES the remainder of Respondent’s

6

Motion to Dismiss. Respondent shall file an Answer to Petitioner’s Habeas petition within 60 days,

7

pursuant to Rules 4 and 5 Governing Section 2254 Cases in the United States District Courts, and

8

Habeas Corpus Local Rule 2254-6. See 28 U.S.C. foll. § 2254 R. 4 & 5; N.D. Cal. Habeas L.R.

9

2254-6.
This order disposes of Docket No. 64.

11
For the Northern District of California

United States District Court

10

12

IT IS SO ORDERED.

13
14

Dated: April 2, 2013

15

_________________________
EDWARD M. CHEN
United States District Judge

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