Knight v. Virga

Filing 43

ORDER by Judge Saundra Brown Armstrong DENYING PETITIONERS 38 REQUEST FOR A CERTIFICATE OF APPEALIBILITY. (ndr, COURT STAFF) (Filed on 7/10/2014)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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8 TENACE D. KNIGHT,

Petitioner,

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vs.

11 TIM VIRGA, Warden,

Case No: C 10-00276 SBA (pr)
Ninth Cir. Case No. 11-17350
ORDER DENYING PETITIONER’S
REQUEST FOR A CERTIFICATE
OF APPEALIBILITY

California State Prison, Sacramento,
Dkt. 38

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Respondent.
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This is a habeas action under 28 U.S.C. § 2254 in which Petitioner Tenace Knight

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seeks to challenge his state court conviction for attempted second degree robbery and

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numerous other criminal charges. Dkt. 19, 20. The Court dismissed the petition on the

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ground that it was filed outside the one-year statute of limitations prescribed by the

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Petitioner appealed

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the dismissal and was appointed counsel by the Ninth Circuit for the purpose of preparing a

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more complete record that may support Petitioner’s request for a certificate of appealability

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(“COA”). Dkt. 25.

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With leave of this Court, Petitioner’s counsel filed a Motion for Relief from

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Judgment of Dismissal Pursuant to Fed. R. Civ. P. 60(b)(6). Dkt. 27. Petitioner’s

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principal argument was that AEDPA’s limitations period should be tolled on the ground

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that a prison deputy working in the law library erroneously advised him to mail his federal

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habeas petition to the state court where he suffered his conviction. The Ninth Circuit issued

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a limited remand for the Court to consider Petitioner’s motion. Dkt. 31. On June 16, 2014,

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the Court denied Petitioner’s motion. Dkt. 37. Relying on Miranda v. Castro, 292 F.3d

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1063, 1067-68 (9th Cir. 2002), among other cases, the Court found that a prisoner’s

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reliance on erroneous third-party advice does not provide a basis for equitable tolling. Id.

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at 6. In addition, the Court noted that the state court returned the habeas petition to

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Petitioner before the expiration of the limitations period, and, notwithstanding the

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erroneous advice, he could have timely filed his petition. Moreover, Petitioner

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acknowledged that the proper mailing address for the petition was disclosed in the

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instructions accompanying the habeas form, but that he had overlooked that information.

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Id. at 7.

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Petitioner’s has now filed a Request for a COA to appeal the Court’s denial of his

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Rule 60(b) motion. Dkt. 27. To obtain a COA, a petitioner must make “a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “When the district

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court denies a habeas petition on procedural grounds without reaching the prisoner’s

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underlying constitutional claim, a COA should issue when the prisoner shows, at least, that

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jurists of reason would find it debatable whether the petition states a valid claim of the

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denial of a constitutional right and that jurists of reason would find it debatable whether the

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district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

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(2000).

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In his present motion, Petitioner does not address Castro, but instead asserts that

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“there is some authority that supports tolling when there is reliance upon advice of prison

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officials.” Mot. at 5. The cases cited by Petitioner are inapposite. For example, in United

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States v. Buckles, 647 F.3d 883 (9th Cir. 2011), the court held that the petitioner’s reliance

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on erroneous advice given to his sister by a court clerk (i.e., “that the timeline for filing the

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Writ of Certiorari would be stayed until a ruling was made on the Petition for Appointment

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of Counsel and a new mandate date would be issued”) “may” support a claim for equitable

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tolling. Id. at 891. In this case, however, the allegedly erroneous was not provided by

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court staff nor did it pertain to a filing deadline. Rather, the advice here was allegedly

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provided by a prison staff member regarding where to mail the petition. As discussed in

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the Court’s Order denying Petitioner’s Rule 60(b) motion, the Ninth Circuit has
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consistently rejected equitable tolling claims in those particular circumstances. Dkt. 37 at 6

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(citing cases).1 Moreover, even if erroneous third party advice presented a colorable

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ground for equitable tolling, the fact remains that Petitioner failed to file his timely file

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petition due to his inadvertent failure to exercise reasonable diligence in identifying where

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to mail his petition. As noted, Petitioner had the mailing address in his possession all

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along, but overlooked such information.

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As for Petitioner’s remaining two arguments for relief under Rule 60(b)—i.e., that

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the date he erroneously filed his petition in state court should be deemed the filing date for

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petition and that the Ninth Circuit delayed in appointing appellate counsel—Petitioner

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makes no showing that jurists of reason would review these arguments differently.

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I.

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CONCLUSION
The Court finds that no reasonable jurist would find this Court’s denial of his Rule

60(b) motion debatable or wrong. Accordingly,
IT IS HEREBY ORDERED THAT Petitioner’s request for a COA is DENIED. The
Clerk shall serve a copy of this Order on the Ninth Circuit Court of Appeals.
IT IS SO ORDERED.
Dated: July 9, 2014

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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For the same reasons, Petitioner’s reliance on Ford v. Pliler, 590 F.3d 782, 793 (9th
Cir. 2009) (dissenting opinion) and Socop-Gonzalez v. I.N.S., 272 F.3d 1176 (9th Cir.
28 2001) (en banc) is misplaced.
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