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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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TRUNG QUANG PHAN,
Petitioner,

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For the Northern District of California

United States District Court

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No. C 11-5286 PJH (PR)

vs.

ORDER GRANTING
RESPONDENT'S MOTION TO
DISMISS AND GRANTING
CERTIFICATE OF
APPEALABILITY

MATHEW CATE, Warden,
Respondent.
/

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This is a habeas case brought pro se by a state prisoner under 28 U.S.C. § 2254.

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Petitioner was originally ordered to show cause why this petition should not be dismissed

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as untimely as it appeared to have been filed nearly six years after the expiration of the

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statute of limitations. Petitioner stated that he was unable to file a timely petition because

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he only speaks Vietnamese and did not have access to any translators or anyone to aid

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him in preparing a petition until now. The court served the petition on respondent to further

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develop the record. Respondent has filed a motion to dismiss on the grounds that the

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petition is barred by the statute of limitations. Petitioner has filed an opposition and

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respondent has replied. The motion will be granted for the reasons set out below.
DISCUSSION

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Statute of Limitations

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The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which

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became law on April 24, 1996, imposed for the first time a statute of limitations on petitions

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for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging

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non-capital state convictions or sentences must be filed within one year of the latest of the

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date on which: (A) the judgment became final after the conclusion of direct review or the

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time passed for seeking direct review; (B) an impediment to filing an application created by

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unconstitutional state action was removed, if such action prevented petitioner from filing;

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(C) the constitutional right asserted was recognized by the Supreme Court, if the right was

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

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

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exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time 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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the one-year time limit. Id. § 2244(d)(2). The one-year period generally will run from "the

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date on which the judgment became final by the conclusion of direct review or the

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For the Northern District of California

United States District Court

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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

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[direct] review." 28 U.S.C. § 2244(d)(1)(A). "Direct review" includes the period within which

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a petitioner can file a petition for a writ of certiorari from the United States Supreme Court,

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whether or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 1157,

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1159 (9th Cir. 1999). Accordingly, if a petitioner fails to seek a writ of certiorari from the

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United States Supreme Court, the AEDPA's one-year limitations period begins to run on the

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date the ninety-day period defined by Supreme Court Rule 13 expires. See Miranda v.

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Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file petition for

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certiorari, his conviction became final 90 days after the California Supreme Court denied

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review); Bowen, 188 F.3d at 1159 (same).

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Here, Petitioner had ninety days from August 11, 2004, when the state high court

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denied review (Motion to Dismiss (MTD), Ex. 2), to file a petition for a writ of certiorari with

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the Supreme Court. See Bowen, 188 F.3d at 1159. He did not. Thus, petitioner's one year

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limitations period began to run on November 9, 2004, and expired on November 9, 2005.

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See 28 U.S.C. § 2244(d)(1). Petitioner filed no state habeas petitions and this federal

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petition was not filed until October 21, 2011, and is therefore untimely absent tolling.

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Petitioner argues that while he was aware of the expiration of the statute of limitations, he is

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entitled to equitable tolling pursuant to Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 2006), in
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that he is Vietnamese and cannot read or write either English or Vietnamese, and has

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“poor” spoken English.

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Equitable Tolling

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AEDPA's one-year statute of limitations is subject to equitable tolling in appropriate

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circumstances. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). "[A] petitioner is entitled

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to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and

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(2) that some extraordinary circumstance stood in his way and prevented timely filing." Id.

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at 2562 (internal quotation and citation omitted); accord Miles v. Prunty, 187 F.3d 1104,

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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

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For the Northern District of California

United States District Court

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be appropriate."). The diligence required to establish entitlement to equitable tolling is

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"reasonable diligence." Holland, 130 S. Ct. at 2565.

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Petitioner bears the burden of showing "extraordinary circumstances were the cause

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of his untimeliness." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (internal quotation

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and citation omitted). Where a petitioner fails to show "any causal connection" between the

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grounds upon which he asserts a right to equitable tolling and his inability to timely file a

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federal habeas application, the equitable tolling claim will be denied. Gaston v. Palmer,

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417 F.3d 1030, 1034–35 (9th Cir. 2005). Further, such Petitioner must show "his

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untimeliness was caused by an external impediment and not by his own lack of diligence."

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Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007) (citing Roy v.

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Lampert, 465 F.3d 964, 973 (9th Cir. 2006)).

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In Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 2006), a magistrate judge issued an

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order for the petitioner to show cause why his petition should not be dismissed as untimely.

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See id. at 1067. The petitioner there responded that he spoke Spanish, there were no

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Spanish language law books in the law library, and only English-speaking clerks in the

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library. Id. The magistrate judge recommended that the petition be dismissed as untimely

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and the district court accepted the recommendation. Id. at 1068. The Ninth Circuit held

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that Mendoza’s allegations that “he lack[ed] English language ability, was denied access to
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Spanish-language legal materials, and could not procure the assistance of a translator

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during the running of the AEDPA limitations period” was sufficient to allege “facts that, if

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true, may entitle him to equitable tolling.” Id. at 1071. The court reversed and remanded

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for “development of the record.” Id. Though, the Ninth Circuit was clear in stating “we

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conclude that a non-English-speaking petitioner seeking equitable tolling must, at a

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minimum, demonstrate that during the running of the AEDPA time limitation, he was

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unable, despite diligent efforts, to procure either legal materials in his own language or

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translation assistance from an inmate, library personnel, or other source.” Id. at 1070.

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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

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For the Northern District of California

United States District Court

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entire life, but is not educated or intelligent. Petitioner has also supplied a declaration from

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another inmate who states that petitioner is minimally competent in English and there are

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very few other Vietnamese speakers at their facility, and they only speak a little

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Vietnamese. For purposes of this motion the court will assume petitioner’s statement are

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accurate and he has very little command of English, and Vietnamese speakers are rare or

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non-existent at his facility.

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However, to warrant equitable tolling petitioner must also demonstrate diligence in

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attempting to file his petition or obtain assistance. See Mendoza at 1070. The statute of

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limitations expired on November 9, 2005. Petitioner includes a letter he wrote to the

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Northern California Innocence Project in 2005 where he requested and received his state

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appellate filings. While this could perhaps show diligence in 2005, this federal petition was

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not filed until 2011. Petitioner describes no other specific actions he took over the next six

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years, instead stating that he sought help, but provides no details. This is insufficient to

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warrant equitable tolling for such a long period of time. Moreover, the letter to the

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California Innocence Project in 2005 demonstrates that petitioner did have at least some

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ability to seek help but there is no indication of other letters sent to other legal organizations

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or for translation assistance. Based on the bare record set forth by petitioner and the lack

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of diligence in seeking assistance, both during or even after the AEDPA statute of
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limitations, he is not entitled to equitable tolling and this petition is untimely.

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CONCLUSION

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Respondent’s motion to dismiss (Docket No. 14) is GRANTED as discussed above.
The petition is DISMISSED. The clerk shall close the file.

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APPEALABILITY

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The federal rules governing habeas cases brought by state prisoners require a

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district court that enters a final order adverse to the petitioner to grant or deny a certificate

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of appealability in the order. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C.

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foll. § 2254.
A petitioner may not appeal a final order in a federal habeas corpus proceeding

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For the Northern District of California

United States District Court

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without first obtaining a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App.

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P. 22(b). Section 2253(c)(1) applies to an appeal of a final order entered on a procedural

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question antecedent to the merits, for instance a dismissal on statute of limitations grounds,

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as here. See Slack v. McDaniel, 529 U.S. 473, 483 (2000).

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“Determining whether a COA should issue where the petition was dismissed on

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procedural grounds has two components, one directed at the underlying constitutional

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claims and one directed at the district court’s procedural holding.” Id. at 484-85. “When the

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district court denies a habeas petition on procedural grounds without reaching the

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prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at

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

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

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whether the district court was correct in its procedural ruling.” Id. at 484. As each of these

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components is a “threshold inquiry,” the federal court “may find that it can dispose of the

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application in a fair and prompt manner if it proceeds first to resolve the issue whose

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answer is more apparent from the record and arguments.” Id. at 485. Supreme Court

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jurisprudence “allows and encourages” federal courts to first resolve the procedural issue,

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as was done here. See id.

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Here, the court concludes that reasonable jurists could find it debatable whether

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petitioner could be entitled to equitable tolling. The court therefore GRANTS a COA as to

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the issue of petitioner’s lack of English language ability and inability to procure the

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assistance of a translator.

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Accordingly, the clerk shall forward the file, including a copy of this order, to the

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Court of Appeals. See Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270

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(9th Cir. 1997).

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IT IS SO ORDERED.
Dated: April 22, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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