Skidmore v. Lizarraga

Filing 29

ORDER GRANTING 16 RESPONDENT'S MOTION TO DISMISS WITH LEAVE TO AMEND. Signed by Judge Beth Labson Freeman.(blflc2S, COURT STAFF) (Filed on 1/28/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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CARL SKIDMORE,

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Case No. 14-cv-04222-BLF

Petitioner,
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v.
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JOE LIZARRAGA,

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Respondent.

ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS WITH LEAVE
TO AMEND
[Re: ECF 16]

United States District Court
Northern District of California

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Carl Skidmore filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254

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seeking post-conviction relief. Respondent moved to dismiss the petition on the basis that it was

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time-barred. The motion came on for hearing on January 21, 2016. For the reasons stated on the

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record and below, Respondent’s motion is GRANTED with leave to amend.
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), “[a] 1-year period

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of limitation shall apply to an application for a writ of habeas corpus by a person in custody

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pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). Petitioner acknowledges that

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the one-year period began to run on the day that his conviction became final—that is, on February

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10, 2010.1 By his calculation, he therefore had until February 10, 2011 (i.e., one year later) to file

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a habeas petition in federal court. This petition was filed on September 18, 2014, well after the

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AEDPA statute of limitations had run. Petitioner contends, however, that he is entitled to

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equitable tolling of the limitations period.
The Supreme Court in Holland v. Florida explained that “a ‘petitioner’ is ‘entitled to

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equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that

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By the Court’s calculation, Petitioner’s conviction became final on February 8, 2010, ninety days
after the California Supreme Court issued its ruling on November 10, 2009. The parties have
offered alternative dates within four days of the Court’s calculation; however, this disparity is not
dispositive of any issues presented.

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some extraordinary circumstance stood in his way’ and prevented timely filing.” 560 U.S. 631,

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649 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (emphasis omitted)). The

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petitioner bears the burden to show that he is entitled to equitable tolling of the limitations period

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by a preponderance of the evidence. Id.; see also Grecu v. Evans, No. C-07-0780, 2013 U.S. Dist.

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LEXIS 47800, at *18 (N.D. Cal. Apr. 2, 2013). Assuming all of Petitioner’s factual allegations to

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be true, he has not pled sufficient facts to meet that burden.

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Specifically, the Court finds that, on the papers presented, Petitioner has not shown he
acted with the requisite degree of diligence sufficient under Holland. The Court notes two periods

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of minimal activity. First is the thirty-seven month period between late December 2009 when

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Petitioner retained habeas counsel, Angelyn Gates, and his own independent inquiry into the

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United States District Court
Northern District of California

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AEDPA limitations period in late January 2013 from a “jailhouse lawyer.” See Opposition to

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Motion to Dismiss (dkt. 23) at 5. The second period is the year between learning about that statute

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of limitations in January 2013 and his eventual filing of a state habeas petition in January 2014.

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See generally Petition for Writ of Habeas Corpus (“Pet.,” dkt.1) Ex. 1.

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Petitioner alleges that he maintained contact with Gates throughout her representation, but

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the Court notes that much of their correspondence was of matters altogether unrelated to his

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habeas petition. See generally Pet. Ex. 1; see also Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir.

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2011) (citing Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003)) (explaining that district courts

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consider, among other things, “the frequency and nature of the attorney-client communications” in

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evaluating a petitioner’s diligence). Here, Petitioner made no inquires with Gates regarding the

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status of his petition during that time. See Schlueter v. Varner, 384 F.3d 69, 76 (3d Cir. 2004)

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(holding that equitable tolling was not warranted when the petitioner “could have brought his

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claims in a timely fashion” had he “exercised reasonable diligence,” notwithstanding the

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shortcomings of his habeas counsel). Furthermore, the petition also fails to allege sufficient facts

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to support the requisite degree of diligence in filing the petition after Gates was fired. Hiring a

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paralegal and an advice-only attorney do not substitute for Petitioner’s own pro se obligation to

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diligently pursue his claim. Fue v. Biter, No. 12–55307, 2016 WL 192000, at *2 (9th Cir. Jan. 15,

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2016) (citing Diaz v. Kelly, 515 F.3d 149, 155 (2d Cir. 2008)) (“[R]easonable diligence requires
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action on the part of the petitioner—including one appearing pro se.”). The Court finds that

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Petitioner’s allegations regarding his activity over these periods are insufficient to establish

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diligence.

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Likewise, the allegations do not establish “extraordinary circumstances” warranting
equitable tolling of the limitations period. Petitioner alleges that Gates misled him to believe she

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was actively pursuing filing a habeas petition on his behalf, but that in fact, she abandoned him

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over the course of the representation. Pet. at 15. The Court notes, however, that none of the

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proffered exhibits, including his own declaration, attests to that position. Ashcroft v. Iqbal, 556

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U.S. 662, 677 (2009) (“The plausibility standard . . . asks for more than a sheer possibility that a

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defendant has acted unlawfully.”). To the contrary, the delay of three years after retaining Gates

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United States District Court
Northern District of California

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to inquire as to the filing of his habeas petition lends support to the more plausible circumstance

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that Petitioner agreed with Gates’ strategy to pursue a claim of actual innocence, for which the

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AEDPA limitations period did not apply. See Malcom v. Payne, 281 F.3d 951, 962 (9th Cir. 2002)

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(concluding that equitable tolling was unavailable where the petitioner assented to her lawyer’s

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strategic decision to file a petition for clemency, rather than pursue a timely federal habeas

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petition). Accordingly, Petitioner has not shown the existence of extraordinary circumstances

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under Holland.

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For the foregoing reasons, the Court finds that Petitioner fails to set forth a sufficient claim

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to equitable tolling. Respondent’s motion to dismiss the petition is therefore GRANTED. At the

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motion hearing, Petitioner requested the opportunity to address these and other of the Court’s

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concerns in an amended petition. Petitioner is given leave to file an amended petition addressing

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the deficiencies discussed above. Any amended petition shall be filed no later than May 20, 2016.

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Dated: January 28, 2016
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BETH LABSON FREEMAN
United States District Judge

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