Ha v. Lewis

Filing 48

ORDER GRANTING MOTION TO DISMISS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Jeremy Fogel on 9/1/11. (dlm, COURT STAFF) (Filed on 9/16/2011)

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NOT FOR CITATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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HOA QUANG HA,
Petitioner,

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No. C 03-03828 JF (PR)

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vs.

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GAIL LEWIS, Warden,
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Respondent.
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ORDER GRANTING MOTION TO
DISMISS; DENYING CERTIFICATE
OF APPEALABILITY

(Docket No. 27)

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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254, challenging his state conviction. Respondent has moved to

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dismiss the amended petition as untimely. (Docket No. 27.) Petitioner filed opposition,

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and Respondent filed a reply. For the reasons discussed below, the Court grants

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Respondent’s motion to dismiss.

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BACKGROUND
On March 27, 2008, Petitioner was convicted of “second degree robbery,

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attempted second degree robbery, assault with a firearm, and possession of a firearm by a

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felon with personal use.” (Am. Pet. at 2; Docket No. 20.) Petitioner was sentenced to 62
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years-to-life and four months. (Id.) On September 28, 1999, the California Court of

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Appeal affirmed Petitioner’s conviction. (Resp’t Mot. to Dismiss at 2.) Petitioner did not

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seek review in the California Supreme Court. (Id.)
On August 18, 2003, Petitioner filed a federal habeas petition. (See Pet. at 1;

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Docket No. 1.) Petitioner raised numerous claims that had not been exhausted in state

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courts, and for good cause shown, the Courts stayed the matter pending exhaustion of all

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his claims. (See Docket No. 19.)

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Petitioner filed a state habeas petition raising the unexhausted claims, which was

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denied on May 16, 2005, by the Santa Clara County Superior Court. (Am. Pet. Ex. A.)

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Petitioner then filed another state habeas petition requesting reconsideration of his

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previously denied petition. (Id., Ex. B.) The superior court denied the petition on August

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16, 2005. (Id.) The California Supreme Court denied review on March 21, 2007. (Id. at

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5.)
Petitioner filed an amended petition alleging that he exhausted all his claims, and

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the action was reopened on May 21, 2009. (Id. at 1.)

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DISCUSSION

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A.

Statute of Limitations
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

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

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

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

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review or the time passed for seeking direct review; (B) an impediment to filing an

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application created by unconstitutional state action was removed, if such action prevented

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petitioner from filing; (C) the constitutional right asserted was recognized by the Supreme

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Court, if the right was newly recognized by the Supreme Court and made retroactive to

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cases on collateral review; or (D) the factual predicate of the claim could have been
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discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during

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which a properly filed application for state post-conviction or other collateral review is

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pending is excluded from the one-year time limit. Id. § 2244(d)(2). The one-year period

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generally will run from “the date on which the judgment became final by conclusion of

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direct review or the expiration of the time for seeking such review.” 28 U.S.C. §

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2244(d)(1)(A).

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“Direct review” includes the period within which a petitioner can file a petition for

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a writ of certiorari from the United States Supreme Court, whether or not the petitioner

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actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

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Accordingly, if a petitioner fails to seek a writ of certiorari from the United States

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Supreme Court, the AEDPA’s one-year limitations period begins to run on the date the

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ninety-day period defined by Supreme Court Rule 13 expires. See Miranda v. Castro,

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

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his conviction became final 90 days after the California Supreme Court denied review);

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Bowen, 188 F.3d at 1159 (same). As the Eighth Circuit put it: “[T]he running of the

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statute of limitations imposed by § 2244(d)(1)(A) is triggered by either (i) the conclusion

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of all direct criminal appeals in the state system, followed by either the completion or

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denial of certiorari proceedings before the United States Supreme Court; or (ii) if

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certiorari was not sought, then by the conclusion of all direct criminal appeals in the state

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system followed by the expiration of the time allotted for filing a petition for the writ.”

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Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525 U.S. 1187

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(1999).

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Petitioner’s state judgment became final on November 7, 1999, when the time to

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seek a petition for review in the California Supreme Court expired. See Smith v. Duncan,

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297 F.3d 809, 812-13 (9th Cir. 2002) (limitation period began running day after time to

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seek discretionary review of California Court of Appeal’s decision in the Supreme Court

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of California expired, which was forty days after the Court of Appeal filed its opinion)

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(citing Cal. Rules of Court 24(a), 28(b), 45(a); Cal. Civ. Proc. Code § 12a). Thus,
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Petitioner had until November 7, 2000, to file a timely federal petition. See 28 U.S.C. §

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2244(d)(1). Petitioner did not do so until August 18, 2003, which was approximately two

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years and nine months after the limitations period expired on November 7, 2000.

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Accordingly, the instant petition is untimely unless tolling applies to render it timely.

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B.

Statutory Tolling

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The one-year statute of limitations is tolled under § 2244(d)(2) for the “time during

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which a properly filed application for State post-conviction or other collateral review with

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respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).
Petitioner pursued collateral review in the state courts more than four years after

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the statute of limitations had expired in November 2000. See supra at 2. A state habeas

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petition filed after AEDPA’s statute of limitations ended cannot toll the limitation period.

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See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does

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not permit the reinitiation of the limitations period that has ended before the state petition

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was filed,” even if the state petition was timely filed). Accordingly, Petitioner is not

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entitled to statutory tolling. Unless Petitioner is entitled to equitable tolling, the

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limitations period for filing a timely federal habeas petition expired on November 7,

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2000.

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C.

Equitable Tolling

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Petitioner claims he is entitled to equitable tolling. The Supreme Court has

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determined that § 2244(d), AEDPA’s statute of limitations, is subject to equitable tolling

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in appropriate cases. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). “[A] ‘petitioner’

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is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights

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

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timely filing.” Holland, 130 S. Ct. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408,

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418 (2005)); accord Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (quoting

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Pace, 544 U.S. at 418); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (“When

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external forces, rather than a petitioner’s lack of diligence, account for the failure to file a

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timely claim, equitable tolling of the statute of limitations may be appropriate.”). The
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diligence required to establish entitlement to equitable tolling is “reasonable diligence.”

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Holland, 130 S. Ct. at 2565 (finding district court’s finding of lack of diligence incorrect

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and remanding for detailed examination of facts to “determine whether they indeed

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constitute extraordinary circumstances sufficient to warrant equitable relief”).

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The Ninth Circuit has held that the petitioner bears the burden of showing that this

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“extraordinary exclusion” should apply to him. Miranda, 292 F.3d at 1065. The prisoner

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also must show that “the extraordinary circumstances were the cause of his untimeliness

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and that the extraordinary circumstances made it impossible to file a petition on time.”

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Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal quotation marks and

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citations omitted). Where a prisoner 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, 417 F.3d at

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1034-35 (holding that where prisoner fails to show causal connection between self-

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representation on direct appeal or physical and mental disabilities and inability to timely

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file petition, district court’s finding that he was not entitled to equitable tolling where he

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had earlier filed a state habeas petition was not clear error). He must, furthermore, show

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that his untimeliness was caused by an external impediment and not by his own lack of

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diligence. Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007) (no

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equitable tolling where petitioner was not diligent in that he failed to seek any state court

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relief for six years, or to take advantage of available paralegal assistance).

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Petitioner claims that his petition is timely because “[a]ppellate counsel’s failure to

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recognize the instant meritorious issues raised in this petition [] hindered petitioner’s

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interest in perfecting his appeal and abandoned petitioner without the aid of counsel.”

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(Am. Pet. at 23.) Respondent contends that counsel’s ordinary negligence does not justify

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equitable tolling. (Resp’t Mot. to Dismiss at 4.) Only where an attorney’s conduct is

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sufficiently egregious that it may constitute an “extraordinary circumstance” does it

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warrant equitable tolling. Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003).

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Furthermore, the alleged extraordinary circumstances must have “proximately caused”
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the late filing. Id. at 799. Here, Petitioner fails to identify any such egregious misconduct

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by counsel and does nothing more than make general allegations of negligence.

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Petitioner also fails to specify how his attorney’s alleged failures caused him to file an

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untimely petition. Lastly, because the appellate counsel’s opening brief was filed in the

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California Court of Appeal on December 31, 1998 (Resp’t Mot. to Dismiss Ex. 1), it

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cannot be said that any deficiency on the part of counsel would have effected the

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limitations period which began to run nearly a year later on November 7, 1999.

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Petitioner also claims that “appellate counsel’s ineffectiveness, abandonment, and

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misadvice... vitiates the independent and adequate state grounds doctrine....” (Am. Pet. at

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25.) Petitioner reiterates this claim in his opposition, arguing “the state procedural bar is

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inapplicable in this case.” (Opp’n at 10.) When a state prisoner has defaulted a claim by

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violating a state procedural rule which would constitute an adequate and independent

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ground to bar direct review in the United States Supreme Court, he may not raise the

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claim in federal habeas. Coleman v. Thompson, 501 U.S. 722, 729-30, 750-51 (1991).

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Petitioner does not explain how state procedural bar is relevant to the timeliness of the

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instant petition. In fact, whether or not Petitioner defaulted his claims in state court does

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not affect the untimeliness of his petition in this Court. See Bennett v. Mueller, 322 F.3d

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573, 582-83 (9th Cir. 2003).

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Petitioner next claims that he is entitled to equitable tolling because “his claims are

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based on newly discovered factual predicates not previously known to him and

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discoverable through exercise of due diligence.” (Am. Pet. at 26 (emphasis in original).)

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Petitioner argues that the statute of limitations should not begin until “the date on which

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the factual predicate of the claim presented was discovered or could have been discovered

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through the exercise of due diligence.” (Id. (citing 28 U.S.C. § 2244(d)(1)(D)).)

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Respondent contends that “factual predicates” refers to petitioner’s knowledge of the

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facts supporting the claim, not evidentiary support for the claim. (Resp’t at 5.)

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Respondent asserts that Petitioner knew the facts of his claims at the time of trial, and

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thus the claims in his amended petition are not based on “newly discovered” factual
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predicates. (Id.) Moreover, Petitioner fails to specify which factual predicates were

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newly discovered, making it impossible to determine whether they could have been

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discovered through due diligence, nor does he explain why the “factual predicates” were

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only recently discoverable.

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Petitioner claims in opposition that he “was effectively obstructed from filing his

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first state petition in a timely manner” because his trial counsel “knew or should have

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known that Petitioner was mentally retarded and developmentally disabled from the time

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of his birth.” (Opp’n at 2.) Petitioner argues that he did not know what was going on at

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trial, and that he experienced hallucinations before and after his arrest and also during his

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court proceedings. (Id. at 3.) However, Petitioner again fails to show causation, i.e., how

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his alleged incompetence during trial or his counsel’s failure to recognize such alleged

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incompetence prevented him from filing a timely federal petition.

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Petitioner also claims that he lacked “the records and transcripts which he needed”

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and had “insufficient access to the prison library.” (Am. Pet. at 9.) However, Petitioner

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fails to specify which records or transcripts he needed, or why his library access was

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insufficient. Furthermore, he fails to establish why his inability to access these materials

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resulted in an untimely federal petition, especially for such a lengthy period of several

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years. Petitioner must point to the particular documents he lacked that were necessary to

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file a timely petition. Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010). He fails

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to do so here.

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Petitioner claims that he is entitled to equitable tolling because he is mentally

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incompetent. (Opp’n at 6, 17.) Respondent contends that Petitioner’s claim fails because

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he does not show a causal connection between his disability and the untimely petition.

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(Resp’t at 2.) Specifically, Petitioner claims that he “was always a very low functioning

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child with many mental disorders,” and as a result “had to attend special schools staffed

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by teachers who taught children that were mentally retarded.” (Opp’n at 2.) Petitioner

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provides a declaration in which he states that he “suffers from mental retardation in

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addition to mental defects which may have resulted from exposure to various toxins” and
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that he is “dyslexic and developmentally disabled.” (Opp’n Decl. Ha at 1.) Petitioner

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contends that “[i]t is the consensus opinion of my [prison school] teachers that I either

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suffer from mental retardation, brain damage, a severe learning disability, or dyslexia.”

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(Id. at 2.)

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Eligibility for equitable tolling due to mental impairment requires the petitioner to

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meet a two-part test: (1) a petitioner must show his mental impairment was an

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extraordinary circumstance beyond his control by demonstrating the impairment was so

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severe that either (a) petitioner was unable rationally or factually to personally understand

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the need to timely file, or (b) petitioner’s mental state rendered him unable personally to

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prepare a habeas petition and effectuate its filing; and (2) the petitioner must show

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diligence in pursuing the claims to the extent he could understand them, but that the

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mental impairment made it impossible to meet the filing deadline under the totality of the

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circumstances, including reasonably available access to assistance. Bills v. Clark, 628

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F.3d 1092, 1099-100 (9th Cir. 2010) (citations and footnote omitted).

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Petitioner alleges that he potentially suffers from “mental retardation, brain

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damage, a severe learning disability, or dyslexia,” and offers declarations from his family

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in support. However, Petitioner fails to show a causal connection between his alleged

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disabilities and his inability to file a timely petition. Petitioner admits that he “depended

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on assistance from another inmate...” (Opp’n at 9), which demonstrates that despite his

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alleged mental disabilities, he reasonably was aware of his right to pursue collateral

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review. Respondent also offers evidence in reply showing that Petitioner’s alleged

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disabilities were not an “extraordinary circumstance” warranting equitable tolling.

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Petitioner passed a routine mental health screening on April 7, 1998, with the screening

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report stating “there is not an indication that this offender is suffering from a mental

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illness.” (Reply Ex. 1. at 4.) Moreover on July 3, 2003, Petitioner received a passing

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score on a cognitive test, which excluded him from the prison Developmental Disability

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Program. (Reply Ex. 1 at 2.) On September 20, 2006, Petitioner demonstrated a 5.6

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reading score, 6.9 math score, and 3.3 language score.1 Based on this record, it cannot be

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said that Petitioner’s alleged mental disability constitutes an “extraordinary circumstance”

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that warrants equitable tolling. The Superior Court of California denied Petitioner’s state

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habeas for these same reasons, finding that “Petitioner fail[ed] to provide any relevant

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medical or expert opinion on the issue of his competency,” and failed “to adequately

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explain why it has taken him over seven years to come forward with this claim.” (Resp’t

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Mot. to Dismiss Ex. 3 at 3.) Accordingly, Petitioner is not entitled to equitable tolling to

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save the instant petition from being untimely.

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CONCLUSION

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For the foregoing reasons, Respondent’s motion to dismiss the petition as untimely

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(Docket No. 27) is GRANTED. The instant petition for a writ of habeas corpus is

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DISMISSED.
No certificate of appealability is warranted in this case. See Rule 11(a) of the

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Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district court to rule on

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certificate of appealability in same order that denies petition). Petitioner has not shown

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

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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.” Slack v. McDaniel, 529

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U.S. 473, 484 (2000).

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This order terminates Docket No. 27.

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IT IS SO ORDERED.

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9/1/11
DATED:_______________________

___________________________
JEREMY FOGEL
United States District Judge

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A 5.6 reading score indicates that Petitioner is at a fifth grade and six months reading
level.
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

HOA QUANG HA,

Case Number: CV03-03828 JF

Petitioner,

CERTIFICATE OF SERVICE

v.
GAIL LEWIS, Warden,
Respondent.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on 9/16/11
, I SERVED a true and correct copy(ies) of the
attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s)
hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into
an inter-office delivery receptacle located in the Clerk's office.

Hoa Quang Ha K-90907
California State Prison-Solano
PO Box 4000
Bld #6-142up
Vacaville, CA 95696
Dated:

9/16/11
Richard W. Wieking, Clerk