Phan v. Cate

Filing 17

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND GRANTING CERTIFICATE OF APPEALABILITY by Judge Phyllis J. Hamilton granting 14 Motion to Dismiss. (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 4/22/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 TRUNG QUANG PHAN, Petitioner, 8 9 11 For the Northern District of California United States District Court 10 No. C 11-5286 PJH (PR) vs. ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND GRANTING CERTIFICATE OF APPEALABILITY MATHEW CATE, Warden, Respondent. / 12 13 This is a habeas case brought pro se by a state prisoner under 28 U.S.C. § 2254. 14 Petitioner was originally ordered to show cause why this petition should not be dismissed 15 as untimely as it appeared to have been filed nearly six years after the expiration of the 16 statute of limitations. Petitioner stated that he was unable to file a timely petition because 17 he only speaks Vietnamese and did not have access to any translators or anyone to aid 18 him in preparing a petition until now. The court served the petition on respondent to further 19 develop the record. Respondent has filed a motion to dismiss on the grounds that the 20 petition is barred by the statute of limitations. Petitioner has filed an opposition and 21 respondent has replied. The motion will be granted for the reasons set out below. DISCUSSION 22 23 Statute of Limitations 24 The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which 25 became law on April 24, 1996, imposed for the first time a statute of limitations on petitions 26 for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging 27 non-capital state convictions or sentences must be filed within one year of the latest of the 28 date on which: (A) the judgment became final after the conclusion of direct review or the 1 time passed for seeking direct review; (B) an impediment to filing an application created by 2 unconstitutional state action was removed, if such action prevented petitioner from filing; 3 (C) the constitutional right asserted was recognized by the Supreme Court, if the right was 4 newly recognized by the Supreme Court and made retroactive to cases on collateral 5 review; or (D) the factual predicate of the claim could have been discovered through the 6 exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly filed 7 application for state post-conviction or other collateral review is pending is excluded from 8 the one-year time limit. Id. § 2244(d)(2). The one-year period generally will run from "the 9 date on which the judgment became final by the conclusion of direct review or the 11 For the Northern District of California United States District Court 10 expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The one-year period may start running from "the expiration of the time for seeking 12 [direct] review." 28 U.S.C. § 2244(d)(1)(A). "Direct review" includes the period within which 13 a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, 14 whether or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 15 1159 (9th Cir. 1999). Accordingly, if a petitioner fails to seek a writ of certiorari from the 16 United States Supreme Court, the AEDPA's one-year limitations period begins to run on the 17 date the ninety-day period defined by Supreme Court Rule 13 expires. See Miranda v. 18 Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file petition for 19 certiorari, his conviction became final 90 days after the California Supreme Court denied 20 review); Bowen, 188 F.3d at 1159 (same). 21 Here, Petitioner had ninety days from August 11, 2004, when the state high court 22 denied review (Motion to Dismiss (MTD), Ex. 2), to file a petition for a writ of certiorari with 23 the Supreme Court. See Bowen, 188 F.3d at 1159. He did not. Thus, petitioner's one year 24 limitations period began to run on November 9, 2004, and expired on November 9, 2005. 25 See 28 U.S.C. § 2244(d)(1). Petitioner filed no state habeas petitions and this federal 26 petition was not filed until October 21, 2011, and is therefore untimely absent tolling. 27 Petitioner argues that while he was aware of the expiration of the statute of limitations, he is 28 entitled to equitable tolling pursuant to Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 2006), in 2 1 that he is Vietnamese and cannot read or write either English or Vietnamese, and has 2 “poor” spoken English. 3 Equitable Tolling 4 AEDPA's one-year statute of limitations is subject to equitable tolling in appropriate 5 circumstances. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). "[A] petitioner is entitled 6 to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and 7 (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. 8 at 2562 (internal quotation and citation omitted); accord Miles v. Prunty, 187 F.3d 1104, 9 1107 (9th Cir. 1999) ("When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may 11 For the Northern District of California United States District Court 10 be appropriate."). The diligence required to establish entitlement to equitable tolling is 12 "reasonable diligence." Holland, 130 S. Ct. at 2565. 13 Petitioner bears the burden of showing "extraordinary circumstances were the cause 14 of his untimeliness." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (internal quotation 15 and citation omitted). Where a petitioner fails to show "any causal connection" between the 16 grounds upon which he asserts a right to equitable tolling and his inability to timely file a 17 federal habeas application, the equitable tolling claim will be denied. Gaston v. Palmer, 18 417 F.3d 1030, 1034–35 (9th Cir. 2005). Further, such Petitioner must show "his 19 untimeliness was caused by an external impediment and not by his own lack of diligence." 20 Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007) (citing Roy v. 21 Lampert, 465 F.3d 964, 973 (9th Cir. 2006)). 22 In Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 2006), a magistrate judge issued an 23 order for the petitioner to show cause why his petition should not be dismissed as untimely. 24 See id. at 1067. The petitioner there responded that he spoke Spanish, there were no 25 Spanish language law books in the law library, and only English-speaking clerks in the 26 library. Id. The magistrate judge recommended that the petition be dismissed as untimely 27 and the district court accepted the recommendation. Id. at 1068. The Ninth Circuit held 28 that Mendoza’s allegations that “he lack[ed] English language ability, was denied access to 3 1 Spanish-language legal materials, and could not procure the assistance of a translator 2 during the running of the AEDPA limitations period” was sufficient to allege “facts that, if 3 true, may entitle him to equitable tolling.” Id. at 1071. The court reversed and remanded 4 for “development of the record.” Id. Though, the Ninth Circuit was clear in stating “we 5 conclude that a non-English-speaking petitioner seeking equitable tolling must, at a 6 minimum, demonstrate that during the running of the AEDPA time limitation, he was 7 unable, despite diligent efforts, to procure either legal materials in his own language or 8 translation assistance from an inmate, library personnel, or other source.” Id. at 1070. 9 Here, petitioner contends that he speaks almost no English and very little Spanish. He states he was born in Vietnam and lived in a Vietnamese community in the Bay Area his 11 For the Northern District of California United States District Court 10 entire life, but is not educated or intelligent. Petitioner has also supplied a declaration from 12 another inmate who states that petitioner is minimally competent in English and there are 13 very few other Vietnamese speakers at their facility, and they only speak a little 14 Vietnamese. For purposes of this motion the court will assume petitioner’s statement are 15 accurate and he has very little command of English, and Vietnamese speakers are rare or 16 non-existent at his facility. 17 However, to warrant equitable tolling petitioner must also demonstrate diligence in 18 attempting to file his petition or obtain assistance. See Mendoza at 1070. The statute of 19 limitations expired on November 9, 2005. Petitioner includes a letter he wrote to the 20 Northern California Innocence Project in 2005 where he requested and received his state 21 appellate filings. While this could perhaps show diligence in 2005, this federal petition was 22 not filed until 2011. Petitioner describes no other specific actions he took over the next six 23 years, instead stating that he sought help, but provides no details. This is insufficient to 24 warrant equitable tolling for such a long period of time. Moreover, the letter to the 25 California Innocence Project in 2005 demonstrates that petitioner did have at least some 26 ability to seek help but there is no indication of other letters sent to other legal organizations 27 or for translation assistance. Based on the bare record set forth by petitioner and the lack 28 of diligence in seeking assistance, both during or even after the AEDPA statute of 4 1 limitations, he is not entitled to equitable tolling and this petition is untimely. 2 CONCLUSION 3 4 Respondent’s motion to dismiss (Docket No. 14) is GRANTED as discussed above. The petition is DISMISSED. The clerk shall close the file. 5 APPEALABILITY 6 The federal rules governing habeas cases brought by state prisoners require a 7 district court that enters a final order adverse to the petitioner to grant or deny a certificate 8 of appealability in the order. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. 9 foll. § 2254. A petitioner may not appeal a final order in a federal habeas corpus proceeding 11 For the Northern District of California United States District Court 10 without first obtaining a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. 12 P. 22(b). Section 2253(c)(1) applies to an appeal of a final order entered on a procedural 13 question antecedent to the merits, for instance a dismissal on statute of limitations grounds, 14 as here. See Slack v. McDaniel, 529 U.S. 473, 483 (2000). 15 “Determining whether a COA should issue where the petition was dismissed on 16 procedural grounds has two components, one directed at the underlying constitutional 17 claims and one directed at the district court’s procedural holding.” Id. at 484-85. “When the 18 district court denies a habeas petition on procedural grounds without reaching the 19 prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at 20 least, that jurists of reason would find it debatable whether the petition states a valid claim 21 of the denial of a constitutional right and that jurists of reason would find it debatable 22 whether the district court was correct in its procedural ruling.” Id. at 484. As each of these 23 components is a “threshold inquiry,” the federal court “may find that it can dispose of the 24 application in a fair and prompt manner if it proceeds first to resolve the issue whose 25 answer is more apparent from the record and arguments.” Id. at 485. Supreme Court 26 jurisprudence “allows and encourages” federal courts to first resolve the procedural issue, 27 as was done here. See id. 28 /// 5 1 Here, the court concludes that reasonable jurists could find it debatable whether 2 petitioner could be entitled to equitable tolling. The court therefore GRANTS a COA as to 3 the issue of petitioner’s lack of English language ability and inability to procure the 4 assistance of a translator. 5 Accordingly, the clerk shall forward the file, including a copy of this order, to the 6 Court of Appeals. See Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 7 (9th Cir. 1997). 8 9 IT IS SO ORDERED. Dated: April 22, 2013. PHYLLIS J. HAMILTON United States District Judge 11 For the Northern District of California United States District Court 10 12 13 G:\PRO-SE\PJH\HC.11\Phan5286.mtd.wpd 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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