Hutchinson v. Brown et al

Filing 13

ORDER by Judge Yvonne Gonzalez Rogers granting 3 Motion to Dismiss; petition is Dismissed. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 1/10/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 12-1655 YGR (PR)

KEITH MONROE HUTCHINSON,
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ORDER OF DISMISSAL

Petitioner,
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v.
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RANDY GROUNDS, Warden,
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Respondent.
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INTRODUCTION

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Petitioner seeks federal habeas relief from his state convictions. For the reasons

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discussed herein, respondent’s motion to dismiss the petition as untimely (Docket No. 3) is

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GRANTED. The petition is DISMISSED.
DISCUSSION

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A.

Standard of Review

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Federal habeas petitions must be filed within one year of the latest of the date on

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which: (1) the judgment became final after the conclusion of direct review or the time passed

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for seeking direct review; (2) an impediment to filing an application created by

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unconstitutional state action was removed, if such action prevented petitioner from filing; (3)

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the constitutional right asserted was recognized by the Supreme Court, if the right was newly

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recognized by the Supreme Court and made retroactive to cases on collateral review; or (4)

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No. C 12-1655 YGR (PR)
ORDER OF DISMISSAL

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the factual predicate of the claim could have been discovered through the exercise of due

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diligence. See 28 U.S.C. § 2244(d)(1). “[W]hen a petitioner fails to seek a writ of certiorari

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from the United States Supreme Court, the AEDPA’s one-year limitations period begins to

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run on the date the ninety-day period defined by Supreme Court Rule 13 expires.” Bowen v.

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Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

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B.

Timeliness of the Petition Without Tolling

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On November 19, 2009, the Board of Parole hearings found petitioner unsuitable for

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parole. This decision became final 120 days later, on March 19, 2010. See Cal. Pen. Code

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§ 3041(b). Petitioner, then, had until March 20, 2011, one year from when the Board’s

United States District Court
For the Northern District of California

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decision became final,1 to file a timely federal habeas petition. The instant federal petition

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was not filed until March 14, 2012, well after the March 20, 2011 deadline.2 On this record,

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absent statutory or equitable tolling, the petition is barred by AEDPA’s statute of limitations.

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C.

Statutory Tolling

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A federal habeas petitioner is entitled to statutory tolling of AEDPA’s limitations

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period for the time during which a properly filed application for state post-conviction or other

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collateral review was pending. See 28 U.S.C. § 2244(d)(2).

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Petitioner filed his first state habeas petition on March 18, 2011, two days before the

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March 20, 2011 federal filing deadline. Thus, as of that day, Petitioner had used 363 days of

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the one-year limitations period. The state superior court denied the petition on May 23,

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2011. Thirty days later, on June 22, 2011, petitioner filed his next habeas petition, this one in

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the state appellate court, which denied the petition on July 26, 2011. Sixty-six days later, on

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September 30, 2011, petitioner filed a petition in the state supreme court, which denied the

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Because this was a habeas petition and not a direct appeal, petitioner was not
entitled to the additional 90 days accorded to appellants who seek review in the United States
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Supreme Court from a direct review decision by the state’s highest court.
Petitioner is entitled to this filing date, rather than the April 3, 2012 date listed in the
docket. The Court assumes that he put the petition in the prison mail the day he signed it
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(March 14, 2012) and will use that as the filing date under the prisoner mailbox rule. See
generally Houston v. Lack, 487 U.S. 266, 276 (1988).
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No. C 12-1655 YGR (PR)
ORDER OF DISMISSAL

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petition on February 15, 2012. Twenty-eight days later, he filed the instant federal petition

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on March 14, 2012.
On this record, the federal petition is untimely, even if one applies statutory tolling.

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More specifically, there was a delay of 487 days (363 + 30 + 66 + 28) before petitioner filed

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the instant action. This is well in excess of the one-year limitations period. On such a

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record, absent equitable tolling, the petition is barred by AEDPA’s statute of limitations.

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D.

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Equitable Tolling
A petitioner is entitled to equitable tolling “only if he shows ‘(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’

United States District Court
For the Northern District of California

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and prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quoting

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Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Miles v. Prunty, 187 F.3d 1104, 1107 (9th

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Cir. 1999) (“When external forces, rather than a petitioner’s lack of diligence, account for the

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failure to file a timely claim, equitable tolling of the statute of limitations may be

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appropriate.”)

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Petitioner has not shown that he is entitled to the extraordinary relief of equitable

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tolling. He makes highly conclusory and undetailed assertions regarding lack of library

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access, reliance on the abilities of another inmate, and lack of legal knowledge. He has not

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shown how in specific instances these alleged difficulties prevented him from timely filing

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any of his petitions. Furthermore, a lack of library access is not an extraordinary

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circumstance, and petitioner has made no specific assertions about how much time he was

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allowed or deprived of. Additionally, his lack of legal sophistication is also not itself an

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extraordinary circumstance warranting equitable tolling, see Raspberry v. Garcia, 448 F.3d

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1150, 1154 (9th Cir. 2006); see also Majoy v. Roe, 296 F.3d 770, 776 n.3 (9th Cir. 2002), nor

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is his reliance on another inmate.

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No. C 12-1655 YGR (PR)
ORDER OF DISMISSAL

CONCLUSION

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For the reasons stated above, respondent’s motion to dismiss the petition as untimely

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(Docket No. 3) is GRANTED. Accordingly, the action is DISMISSED. Petitioner’s motion

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for an extension of time to file an opposition (Docket No. 9) is DENIED as moot, as he has

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filed an opposition, which the Court has considered and is deemed timely filed.

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A certificate of appealability will not issue. Petitioner has not shown “that jurists of

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

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constitutional right and that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

United States District Court
For the Northern District of California

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The Clerk shall enter judgment in favor of respondent, terminate Docket Nos. 3 and 9,
and close the file.
IT IS SO ORDERED.
DATED:

January 10, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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No. C 12-1655 YGR (PR)
ORDER OF DISMISSAL