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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 United States District Court For the Northern District of California 10 No. C 12-1655 YGR (PR) KEITH MONROE HUTCHINSON, 11 ORDER OF DISMISSAL Petitioner, 12 v. 13 RANDY GROUNDS, Warden, 14 Respondent. / 15 16 INTRODUCTION 17 Petitioner seeks federal habeas relief from his state convictions. For the reasons 18 discussed herein, respondent’s motion to dismiss the petition as untimely (Docket No. 3) is 19 GRANTED. The petition is DISMISSED. DISCUSSION 20 21 A. Standard of Review 22 Federal habeas petitions must be filed within one year of the latest of the date on 23 which: (1) the judgment became final after the conclusion of direct review or the time passed 24 for seeking direct review; (2) an impediment to filing an application created by 25 unconstitutional state action was removed, if such action prevented petitioner from filing; (3) 26 the constitutional right asserted was recognized by the Supreme Court, if the right was newly 27 recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) 28 No. C 12-1655 YGR (PR) ORDER OF DISMISSAL 1 the factual predicate of the claim could have been discovered through the exercise of due 2 diligence. See 28 U.S.C. § 2244(d)(1). “[W]hen a petitioner fails to seek a writ of certiorari 3 from the United States Supreme Court, the AEDPA’s one-year limitations period begins to 4 run on the date the ninety-day period defined by Supreme Court Rule 13 expires.” Bowen v. 5 Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). 6 B. Timeliness of the Petition Without Tolling 7 On November 19, 2009, the Board of Parole hearings found petitioner unsuitable for 8 parole. This decision became final 120 days later, on March 19, 2010. See Cal. Pen. Code 9 § 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 10 decision became final,1 to file a timely federal habeas petition. The instant federal petition 11 was not filed until March 14, 2012, well after the March 20, 2011 deadline.2 On this record, 12 absent statutory or equitable tolling, the petition is barred by AEDPA’s statute of limitations. 13 C. Statutory Tolling 14 A federal habeas petitioner is entitled to statutory tolling of AEDPA’s limitations 15 period for the time during which a properly filed application for state post-conviction or other 16 collateral review was pending. See 28 U.S.C. § 2244(d)(2). 17 Petitioner filed his first state habeas petition on March 18, 2011, two days before the 18 March 20, 2011 federal filing deadline. Thus, as of that day, Petitioner had used 363 days of 19 the one-year limitations period. The state superior court denied the petition on May 23, 20 2011. Thirty days later, on June 22, 2011, petitioner filed his next habeas petition, this one in 21 the state appellate court, which denied the petition on July 26, 2011. Sixty-six days later, on 22 September 30, 2011, petitioner filed a petition in the state supreme court, which denied the 23 24 1 26 2 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 25 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 27 (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). 28 2 No. C 12-1655 YGR (PR) ORDER OF DISMISSAL 1 petition on February 15, 2012. Twenty-eight days later, he filed the instant federal petition 2 on March 14, 2012. On this record, the federal petition is untimely, even if one applies statutory tolling. 3 4 More specifically, there was a delay of 487 days (363 + 30 + 66 + 28) before petitioner filed 5 the instant action. This is well in excess of the one-year limitations period. On such a 6 record, absent equitable tolling, the petition is barred by AEDPA’s statute of limitations. 7 D. 8 9 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 10 and prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quoting 11 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Miles v. Prunty, 187 F.3d 1104, 1107 (9th 12 Cir. 1999) (“When external forces, rather than a petitioner’s lack of diligence, account for the 13 failure to file a timely claim, equitable tolling of the statute of limitations may be 14 appropriate.”) 15 Petitioner has not shown that he is entitled to the extraordinary relief of equitable 16 tolling. He makes highly conclusory and undetailed assertions regarding lack of library 17 access, reliance on the abilities of another inmate, and lack of legal knowledge. He has not 18 shown how in specific instances these alleged difficulties prevented him from timely filing 19 any of his petitions. Furthermore, a lack of library access is not an extraordinary 20 circumstance, and petitioner has made no specific assertions about how much time he was 21 allowed or deprived of. Additionally, his lack of legal sophistication is also not itself an 22 extraordinary circumstance warranting equitable tolling, see Raspberry v. Garcia, 448 F.3d 23 1150, 1154 (9th Cir. 2006); see also Majoy v. Roe, 296 F.3d 770, 776 n.3 (9th Cir. 2002), nor 24 is his reliance on another inmate. 25 26 27 28 3 No. C 12-1655 YGR (PR) ORDER OF DISMISSAL CONCLUSION 1 2 For the reasons stated above, respondent’s motion to dismiss the petition as untimely 3 (Docket No. 3) is GRANTED. Accordingly, the action is DISMISSED. Petitioner’s motion 4 for an extension of time to file an opposition (Docket No. 9) is DENIED as moot, as he has 5 filed an opposition, which the Court has considered and is deemed timely filed. 6 A certificate of appealability will not issue. Petitioner has not shown “that jurists of 7 reason would find it debatable whether the petition states a valid claim of the denial of a 8 constitutional right and that jurists of reason would find it debatable whether the district court 9 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 10 11 12 13 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 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 No. C 12-1655 YGR (PR) ORDER OF DISMISSAL

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