Lowe v. Tilton

Filing 44

ORDER Denying Request for Leave to Renew a Motion for Relief from Judgment or Order. Signed by Judge Larry Alan Burns on 11/18/15. (All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CLARKE SHELDON LOWE,

CASE NO. 07cv2232-LAB
Petitioner,

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ORDER DENYING REQUEST FOR
LEAVE TO RENEW A MOTION FOR
RELIEF FROM JUDGMENT OR
ORDER

vs.
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JAMES E. TILTON,
Respondent.

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Clarke Sheldon Lowe was convicted in San Diego County Superior Court of several

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charges including rape, kidnapping, and indecent exposure. He was sentenced to a

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determinate term of eight years and an indeterminate term of 25 years to life. The California

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Court of Appeal affirmed the conviction. The Supreme Court of California denied review.

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Since then, Lowe has collaterally attacked the judgment both in state and federal court on

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several occasions. Each time the petition was denied as untimely under the Antiterrorism

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and Effective Death Penalty Act of 1996 ("AEDPA") statute of limitations based on the three

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month delay between the denial of Lowe's habeas corpus petition in San Diego County

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Superior Court and the filing of his habeas petition in the California Court of Appeal.

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Lowe argues that his petition was untimely because his attorney, John Lanahan, was

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unaware that the AEDPA statute of limitations was tolled for only 60-days after the trial

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court's denial of habeas relief, causing him to miss a filing deadline. Lowe filed a complaint

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against Lanahan with the Arbitration Committee of the San Diego County Bar Association
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07cv2232

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alleging professional negligence. The Arbitration Committee found in Lowe's favor without

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deciding his professional negligence claim. Lowe claims that the arbitration proceeding

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uncovered a March 2007 e-mail between his mother and Lanahan. The e-mail suggests that

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Lanahan was unaware of the filing deadline. Based on the e-mail, Lowe renews his previous

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request for Leave to Renew a Motion for Relief from Judgment pursuant to Rule 60(b)(6) of

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the Federal Rules of Civil Procedure.

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I.

Discussion

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AEDPA gives a state prisoner whose conviction has become final one year to seek

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federal habeas corpus relief. 28 U.S.C. § 2244(d)(1)(A). But, the one year limitations period

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is subject to equitable tolling for the "time during which a properly filed application for State

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. . . collateral review . . . is pending." 28 U.S.C. § 2244(d)(2).1 In addition, a petitioner may

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be entitled to equitable tolling if he can show: (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. See Holland v. Florida, 560 U.S. 631, 648 (2010).

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Lowe hasn't acted with reasonable diligence. Lowe was aware that his attorney had

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missed the deadline by, at the latest, July of 2012, but did not bring this motion until August

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of 2015. And the e-mail underlying this motion is from March 2007. There's no reason why

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Lowe couldn't retrieve it from his mother and submit it to the Court years before he did.

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While it's unlikely, even if Lowe could credibly claim that the e-mail between his mother and

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Lanahan wasn't available until he filed a complaint with the Arbitration Committee, Lowe

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offers no explanation for waiting until August 2014 to do so.

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Lowe also hasn't shown "extraordinary circumstances." "A garden variety claim of

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excusable neglect, such as a simple 'miscalculation' that leads a lawyer to miss a filing

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deadline, does not warrant equitable tolling." Holland, 560 U.S. 651–52. That a petitioner's

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attorney failed to file a habeas petition on time and was "unaware of the date on which the

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Tolling is also available for the intervening period between state habeas petitions but
only when the petitioner files the later state habeas petition "within what California would
consider a 'reasonable time.'" Evans v. Chavis, 546 U.S. 189, 198 (2006). A reasonable
time to file an appeal from the denial of a habeas petition is 30 to 60 days. Id. at 192–93.
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limitations period expired"—as Lanahan's e-mail exchange indicates here—"might suggest

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simple negligence," but doesn't rise to the level of extraordinary circumstances envisioned

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in Holland. Cf. id. at 652. In that case, the petitioner wrote his attorney numerous letters

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seeking crucial information and repeatedly emphasizing the importance of filing a timely

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petition, and he even identified the applicable legal rules. Id. at 652–53. In this case,

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however, Lowe's mother sent only one e-mail plausibly bearing on the subject, and she sent

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it after Lanahan had already missed the statute of limitations deadline.

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III. Conclusion

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For the reasons set forth above, this Court DENIES Petitioner’s request.

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IT IS SO ORDERED.
DATED: November 18, 2015

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HONORABLE LARRY ALAN BURNS
United States District Judge

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07cv2232