Whitney v. Hedopeth

Filing 23

REPORT AND RECOMMENDATION and ORDER Denying Request for Evidentiary Hearing: Recommending that Respondent's 11 Motion to Dismiss be granted. Any party may file written objections with the Court and serve a copy on all parties on or before August 31, 2009. Any reply to the objections shall be served and filed on or before September 14, 2009. Signed by Magistrate Judge Ruben B. Brooks on 7/28/09. (All non-registered users served via U.S. Mail Service).(pdc)(jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 v. A. HEDGPETH, Warden, Respondent. DARREN LEE WHITNEY, Petitioner, ) ) ) ) ) ) ) ) ) ) Civil No. 08cv2195 LAB(RBB) REPORT AND RECOMMENDATION GRANTING RESPONDENT'S MOTION TO DISMISS [DOC. NO. 11] AND ORDER DENYING REQUEST FOR EVIDENTIARY HEARING UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Petitioner Darren Whitney, a prisoner proceeding pro se and in forma pauperis, filed his Petition for Writ of Habeas Corpus on November 24, 2008, pursuant to 28 U.S.C. § 2254 [doc. no. 1]. Petitioner claims he is entitled to habeas relief for the following reasons: (1) The trial court erred in admitting his codefendant's

prior conviction; (2) Whitney received ineffective assistance of trial counsel; (3) the trial judge erred by imposing enhancements at sentencing; (4) Petitioner received ineffective assistance of appellate counsel; (5) his sentences for counts three and four

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should have been stayed; and (6) there were errors in his resentencing brief.1 (Pet. 7.)

On February 25, 2009, Respondent Hedgpeth filed a Motion to Dismiss with a Memorandum of Points and Authorities and Lodgments [doc. no. 11]. Respondent argues the Petition should be dismissed

because the claims are time barred by the statute of limitations in 28 U.S.C. § 2244(d), and although there is some statutory tolling, it is not sufficient to make the Petition timely. Attach. #1 Mem. P. & A. 5.) (Mot. Dismiss

Petitioner's Opposition Motion to

Respondent's Request to Dismiss was filed nunc pro tunc to March 30, 2009 [doc. nos. 15, 17]. I. FACTUAL BACKGROUND

On January 14, 2003, a jury convicted Whitney of two counts of robbery and two counts of assault with a firearm, and found that multiple enhancement allegations were true. (Pet. 20.) On April

16, 2003, he was sentenced to a total of forty-five years to life on count one. (Id. at 20-21.) He received the same sentence for

the remaining robbery and two assault convictions, but the sentences were concurrent. (Id. at 21.) Whitney appealed his

conviction, and on December 13, 2004, the California Court of Appeal affirmed the convictions but held that the trial court erred in not striking section 12022.5 sentencing enhancements and violated Whitney's rights under Blakely v. Washington, 542 U.S. 296 (2004). (Pet. 21-22, 70.) The appellate court concluded that the

trial court "committed Blakely error by imposing upper term enhancements with respect to counts 3 and 4 on the basis of facts Because Whitney's Petition is not consecutively paginated, the Court will use the page numbers assigned by the electronic case filing system. 2
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not found by the jury beyond a reasonable doubt."

(Id. Ex. 1,

People v. Gains, Case No. D042073, slip op. at 4 (Cal. Ct. App. Dec. 13, 2004). The court remanded Petitioner to the trial court (Id.) "On remand, the court corrected the (Lodgment No. 1,

for resentencing.

errors and again imposed the 45-year term."

People v. Whitney, No. D046443, slip op. at 4 (Cal. Ct. App. Sept. 14, 2005).) II. PROCEDURAL BACKGROUND After resentencing, Whitney filed his second appeal. His

appointed counsel did not raise any issues; instead, he provided a summary of the proceedings and facts with citations to the transcript pursuant to People v. Wende, 25 Cal. 3d 436, 600 P.2d 1071, 158 Cal. Rptr. 839 (1979), and Anders v. California, 386 U.S. 738 (1967). (Pet. Attach. #1 (Ex. J at 1, Appellant's Opening Br., Whitney filed two supplemental

Whitney v. People, No. D046443).) briefs on his own behalf. 3.)

(Mot. Dismiss Attach. #1 Mem. P. & A.

On September 14, 2005, the California Court of Appeal affirmed Whitney's conviction and resentencing. (Lodgment No. 1, People v. Although

Whitney, No. D046443, slip op. at 4-5; see Pet. 2.)

Whitney states that he filed a petition for review with the California Supreme Court that was denied on July 11, 2007, it appears that he filed a petition for habeas corpus relief. (Compare Pet. 2-4, with Lodgment No. 2, In re Whitney, No S146087, and Lodgment No. 3, In re Whitney, No. S146087, slip op. at 1.) His habeas corpus petition was submitted to the California Supreme Court on August 18, 2006, over eleven months after his conviction was affirmed. (Lodgment No. 2, In re Whitney, No. S146087.) 3 On

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July 11, 2007, the California Supreme Court summarily denied the habeas petition. op. at 1.) On August 10, 2007, Whitney timely filed a federal Petition for Writ of Habeas Corpus. Whitney v. Hedopeth, Case No. 07cv1592 (Lodgment No. 3, In re Whitney, No. S146087, slip

LAB (PLC) (S.D. Cal. filed Aug. 10, 2007) (petition for habeas corpus).2 The petition was dismissed without prejudice on

September 6, 2007, due to Whitney's failure to use the proper form. Whitney v. Hedopeth, Case No. 07cv1592 LAB (PLC) (S.D. Cal. Sept. 6, 2007) (amended order dismissing petition without prejudice). filed a First Amended Petition that was also dismissed without prejudice on September 28, 2007, for failure to name the proper respondent and failure to allege exhaustion of state judicial remedies. Whitney v. Hedopeth, Case No. 07cv1592 LAB (PLC) (S.D. He

Cal. Sept. 28, 2007) (order dismissing amended petition at 2-4). Whitney was given until November 16, 2007, to file a second amended petition that cured the pleading deficiencies. amended petition by the deadline. He did not file an

Instead, Whitney filed his

Petition for Writ of Habeas Corpus on November 24, 2008, over a year later and sixteen months after the state supreme court denied his last state petition [doc. no. 1]. III. STANDARD OF REVIEW

Whitney is subject to the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 because he filed his Petition after

In that petition, Whitney named the respondent as Warden Hedopeth, and the Court's docket identifies the case as Whitney v. Hedopeth, Case No. 07cv1592 LAB (PCL). The respondent's actual name appears to be Hedgpeth, and some subsequent court orders identify the respondent as Warden Hedgpeth. 4
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April 24, 1996.

28 U.S.C.A. § 2244 (West 2006).

AEDPA sets forth

the scope of review for federal habeas corpus claims: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C.A. § 2254(a) (West 2006); see also Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991). To present a cognizable federal habeas corpus claim, a state prisoner must allege that his conviction was obtained "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.A. § 2254(a). See

Petitioner must allege that the state court See Reed v. Farley,

violated his federal constitutional rights.

512 U.S. 339, 347 (1994); Hernandez, 930 F.2d at 719; Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990). In 1996, Congress "worked substantial changes to the law of habeas corpus." Moore v. Calderon, 108 F.3d 261, 263 (9th Cir.

1997) (abrogated on other grounds by Williams v. Taylor, 529 U.S. 362 (2000)). Amended § 2254(d) now reads:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C.A. § 2254(d). 5
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IV. DISCUSSION The One-Year Statute of Limitations

The statute of limitations for habeas corpus petitions is set forth in AEDPA. As amended by AEDPA, 28 U.S.C. § 2244(d) provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of ­(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date one which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C.A. § 2244(d)(1). Petitioner has not asserted that

subsections (B)-(D) of § 2244(d)(1) apply to his case, so § 2244(d)(1)(A) provides the applicable standard for determining when the limitations period began to run. Petitioner timely appealed his conviction to the California Court of Appeal, and on September 14, 2005, the court affirmed his conviction and resentencing. (Lodgment No. 1, People v. Whitney, Whitney did not file a petition for (See Pet. 2-3, 164, 166; Consequently, his

No. D046443, slip op. at 3-4.)

review in the California Supreme Court. Mot. Dismiss Attach. #1 Mem. P. & A. 3.)

conviction became final thirty days after the court of appeal's 6

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decision.

Cal. R. Ct. 8.366(b)(1).

Whitney could have filed a

petition for review in the state supreme court within ten days of the appellate decision becoming final, but he did not. See Cal. R.

Ct. 8.500(e)(1); Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008). Accordingly, the statute of limitations for Petitioner's

federal habeas corpus claims began to run on October 24, 2005, and, absent statutory or equitable tolling, would have expired on October 23, 2006. See Patterson v. Stewart, 251 F.3d 1243, 1245-46

(9th Cir. 2001) (quoting Fed. R. Civ. Pro. 6(a)) (explaining that "[i]n computing any amount of time prescribed or allowed . . . by any applicable statute, the day of the act, event, or default from which the designated period of time runs shall not be included[]"). Whitney's first state habeas corpus petition was filed on August 25, 2006, approximately ten months after his conviction became final; the petition was summarily denied by the California Supreme Court on July 11, 2007. (Lodgment No. 2, In re Whitney,

No. S146087; Lodgment No. 3, In re Whitney, No. S146087, slip op. 1.) The Petition for Writ of Habeas Corpus, which is the subject

of the Respondent's Motion to Dismiss, was filed on November 24, 2008 [doc. no. 1]. Unless Petitioner is entitled to sufficient

statutory or equitable tolling, this action is barred by AEDPA's statute of limitations. 1. Statutory Tolling

Under AEDPA, the statute of limitations is tolled during periods when a petitioner has a properly filed application for collateral review pending in state court. Specifically, 28 U.S.C.

§ 2244(d)(2) states, "The time during which a properly filed

7

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application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C.A. § 2244(d)(2).

In addition, the interval between the disposition of one state

6 petition and the filing of another may be tolled under "interval 7 tolling." Carey v. Saffold, 536 U.S. 214, 223 (2002). "[T]he

8 AEDPA statute of limitations is tolled for `all of the time during 9 which a state prisoner is attempting, through proper use of state 10 court procedures, to exhaust state court remedies with regard to a 11 particular post-conviction application.'" Nino v. Galaza, 183 F.3d

12 1003, 1006 (9th Cir. 1999) (quoting Barnett v. Lemaster, 167 F.3d 13 1321, 1323 (10th Cir. 1999)); see also Carey, 536 U.S. at 219-22. 14 AEDPA's limitations period is tolled from the time a

15 petitioner's first state habeas petition is filed until state 16 collateral review is concluded, but it is not tolled before the 17 first state collateral challenge is filed. Thorson v. Palmer, 479 A

18 F.3d 643, 646 (9th Cir. 2007) (citing Nino, 183 F.3d at 1006). 19 subsequently filed petition for state collateral relief cannot 20 revive an expired statute of limitations.

Pace v. DiGuglielmo, 544

21 U.S. 408, 417 (2005); see also Jiminez v. Rice, 276 F.3d 478, 482 22 (9th Cir. 2001); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 23 2000). 24 When Whitney submitted his state habeas corpus petition to the

25 California Supreme Court on August 18, 2006, he had sixty-seven 26 days remaining before the AEDPA statute of limitations expired. 27 While his state petition was pending, the limitations period was 28 tolled. Thorson, 479 F.3d at 646. 8 On July 11, 2007, the

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1 California Supreme Court denied Whitney's habeas petition.

Thus,

2 he had until September 17, 2007, to file his federal habeas corpus 3 petition. 4 See Fed. R. Civ. P. 6.

On August 10, 2007, Whitney timely filed a federal Petition Whitney v. Hedopeth, Case No. 07cv1592

5 for Writ of Habeas Corpus.

6 LAB (PLC) (S.D. Cal. filed Aug. 10, 2007) (petition for habeas 7 corpus). 8 6, 2007. The petition was dismissed without prejudice on September Whitney filed a First Amended Petition that was also

9 dismissed without prejudice on September 28, 2007, for failure to 10 name the proper respondent and failure to allege exhaustion of 11 state judicial remedies. Whitney v. Hedopeth, Case No. 07cv1592 Whitney was

12 LAB (PLC) (order dismissing amended petition at 2-4).

13 given until November 16, 2007, to file a second amended petition 14 that cured the pleading deficiencies. 15 petition by the deadline. He did not file an amended

Instead, Whitney filed this second

16 action on November 24, 2008 [doc. no. 1]; see also Whitney v. 17 Hedopeth, Case No. 07cv1592 LAB (PLC) (S.D. Cal. Dec. 3, 2008) 18 (order striking second amended petition at 2) (explaining that 19 "[t]he Court has since determined the petition was erroneously 20 filed in this case and that, instead, Petitioner intended to file a 21 new petition[]"). 22 "Whether a habeas application is deemed second or successive

23 can be critical because `AEDPA greatly restricts the power of 24 federal courts to award relief to state prisoners who file second 25 or successive habeas corpus applications.'" United States v.

26 Lopez, 534 F.3d 1027, 1033 (9th Cir. 2009) (quoting Cooper v. 27 Calderon, 274 F.3d 1270, 1272-73 (9th Cir. 2001) (internal 28 quotation marks omitted). 9

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1

Whitney's August 10, 2007, petition does prevent consideration

2 of the Petition in this case because the former was never properly 3 filed and was not decided on the merits. See Thai v. United

4 States, 391 F.3d 491, 495 (2nd Cir. 2004) (citation omitted) 5 (making a distinction between original and second or successive 6 petitions by explaining that "an initial petition that is dismissed 7 without prejudice because it contains curable procedural defects or 8 because it presents unexhausted claims is not a first petition for 9 purposes of §§ 2244 and 2255[]"); Felder v. McVicar, 113 F.3d 696, 10 697 (7th Cir. 1997) (quoting Benton v. Washington, 106 F.3d 162, 11 164-65 (7th Cir. 1996)) (finding that "if the first petition was 12 not accepted (maybe it was returned for nonpayment of the filing 13 fee . . . or it simply was unintelligible), . . . then the second 14 petition is not a successive petition, because the first is a 15 nullity[]").) Whitney's current Petition is not a second or

16 successive petition; consequently, the Court must evaluate whether 17 the statute of limitations bars this proceeding. 18 After Petitioner's state petition was denied by the California

19 Supreme Court on July 11, 2007, Whitney had sixty-seven days to 20 file his federal Petition before the statute of limitations ran. 21 Thirty days later, he filed a petition in Whitney v. Hedopeth, Case 22 No. 07cv01592 LAB (PCL). 23 amend. 24 Whitney is not entitled to statutory tolling between the time The petition was dismissed with leave to

25 his first federal petition was filed and the date he filed the 26 Petition initiating this proceeding. "[T]he filing of a petition

27 for habeas corpus in federal court does not toll the statute of 28 limitations . . . ." Rhines v. Weber, 544 U.S. 269, 274-75 (2005) 10

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1 (citing Duncan v. Walker, 533 U.S. 167, 181-82 (2001)). 2 situation Whitney faced has been addressed before. 3 4 5 6 7

The

Petitioner argues he is entitled to tolling because his federal habeas petition was dismissed without prejudice. The limitations period is not statutorily tolled during the pendency of a federal habeas petition that is subsequently dismissed without prejudice. See Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir. 1999). Further, the dismissal without prejudice did not excuse Petitioner from complying with any applicable limitations statutes.

8 Hampton v. Dretke, 2004 U.S. Dist. LEXIS 24017, at **6-7 (N.D. Tex. 9 Nov. 29, 2004); accord Singleton v. Vasquez, 2008 U.S. Dist. LEXIS 10 14000, at *16 (C.D. Cal. Feb. 1, 2008). Although some statutory

11 tolling applies to the period during which Whitney's state 12 petitions were pending, statutory tolling does not apply to his 13 first federal petition. As a result, this Petition was filed over

14 fourteen months past too late. 15 16 2. Equitable Tolling

Equitable tolling of the statute of limitations is appropriate

17 when "`extraordinary circumstances beyond a prisoner's control make 18 it impossible'" to file a timely petition. Spitsyn v. Moore, 345

19 F.3d 796, 799 (9th Cir. 2003) (quoting Brambles v. Duncan, 330 F.3d 20 1197, 1202 (9th Cir. 2003)); Stillman v. LaMarque, 319 F.3d 1199, 21 1202 (9th Cir. 2003). "[A] litigant seeking equitable tolling (1) that he has

22 bears the burden of establishing two elements:

23 been pursuing his rights diligently, and (2) that some 24 extraordinary circumstance stood in his way." Pace v. DiGuglielmo,

25 544 U.S. at 418 (citations omitted); see also Lawrence v. Florida, 26 549 U.S. 327, 335 (2007); Rouse v. U.S. Dept. of State, 548 F.3d 27 871, 878-79 (9th Cir. 2008); Espinoza-Matthews v. California, 432 28 F.3d 1021, 1026 (9th Cir. 2005). 11

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1

"`[T]he threshold necessary to trigger equitable tolling

2 [under AEDPA] is very high, lest the exceptions swallow the rule.'" 3 Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting 4 United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). 5 The failure to file a timely petition must be the result of 6 external forces, not the result of the petitioner's lack of 7 diligence. Miles, 187 F.3d 1104, 1107 (9th Cir. 1999).

8 "Determining whether equitable tolling is warranted is a `fact9 specific inquiry.'" Spitsyn, 345 F.3d at 799 (quoting Frye v.

10 Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)). 11 12 (A) Confusion and Ignorance of the Law

Whitney claims he believed that "all motions or writs [had] (Opp'n 8.) He attached the first page

13 been timely filed . . . ."

14 of the federal Petition for Habeas Corpus filed on August 10, 2007, 15 along with his incoming and outgoing mail records as evidence. 16 (Id. Attach. #1, App. H, I.) 17 legal knowledge. (Opp'n 7.) Whitney also explains that he lacks Petitioner's claim can be construed

18 as an argument that equitable tolling should apply because he was 19 ignorant of the law. 20 (Id. at 8.)

"[I]t is well settled that inexperience and ignorance of the

21 law are insufficient to constitute extraordinary circumstances[]" 22 to justify equitable tolling. Furr v. Small, No. CV 08-6870 ODW

23 (FMO), 2009 WL 1598419, at *5 (C.D. Cal. June 4, 2009) (citing 24 Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000); Felder v. 25 Johnson, 204 F.3d 168, 172-73 (5th Cir. 2000); Turner v. Johnson, 26 177 F.3d 390, 392 (5th Cir. 1999) (per curiam); Hines v. Runnell, 27 2003 WL 21031967 at *2 (N.D. Cal. 2003); Fisher v. Ramirez-Palmer, 28 219 F. Supp. 2d 1076, 1081 (E.D. Cal. 2002); Frances v. Miller, 198 12

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1 F. Supp. 2d 232, 235 (E.D. N.Y. 2002).)

Petitioner's ignorance of

2 the legal requirements for satisfying AEDPA's statute of 3 limitations does not justify equitable tolling. Even if Whitney

4 believed his August 10, 2007, petition tolled the statute of 5 limitations, he did not pursue his rights diligently. Although

6 Whitney was instructed to file a second amended petition no later 7 than November 16, 2007, he did not file the current Petition until 8 over a year later on November 24, 2008. Whitney v. Hedgpeth, Case

9 No. 07cv1592 LAB (PLC), slip op. 2-4; see (Pet. 1.) 10 11 (B) Whitney's Declaration Whitney attached a declaration to his Petition, signed on

12 August 3, 2006, in which he explains there was "good cause for the 13 delay" in filing his state habeas corpus petition. 14 #1 Ex. 3, at 43-51.) (Pet. Attach.

Petitioner alleges the following (1) He was on

15 circumstances prevented him from filing earlier:

16 lockdown so he was unable to access the law library between August 17 2005 and September 12, 2005; (2) he did not have access to one of 18 his appellate transcripts until October 2005; (3) his appellate 19 counsel did not help him prepare his state habeas corpus petition; 20 and (4) he was a "special Ed student all [his] life[.]" 21 48-51.) (Id. at

He did not make similar arguments in his Opposition Motion

22 to Respondent's Request to Dismiss [doc. nos. 15, 17]. 23 Whitney's first two explanations for his delay involve events

24 that occurred before his AEDPA statute of limitation began running 25 on October 24, 2005; therefore, they are not relevant to any 26 request for equitable tolling. 27 Whitney's allegation that he was delayed by his appellate

28 counsel's failure to help him prepare a state habeas corpus 13

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1 petition does not justify equitable tolling.

See Lawrence v.

2 Florida, 549 U.S. at 337 (explaining that "a State's effort to 3 assist prisoners in postconviction proceedings does not make the 4 State accountable for a prisoner's delay[]"); see also Miranda v. 5 Castro, 292 F.3d 1063, 1068 (9th Cir. 2002) (holding that 6 petitioner has no right to appointed counsel for post-conviction 7 relief). 8 Petitioner's unsupported allegation that he had a learning

9 disability that prevented him from filing sooner does not establish 10 "extraordinary circumstances" justifying equitable tolling. 11 Lawrence v. Florida, 549 U.S. at 337 (finding that petitioner had 12 fallen short of showing "extraordinary circumstances" where 13 petitioner "has made no factual showing of mental incapacity[]"); 14 see also Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005) 15 (holding that petitioner had the burden to show a "causal 16 connection" between his self-represented mental disability and a 17 failure to file a timely petition). Furthermore, the chronology

18 outlined above establishes that Whitney was able to file his first 19 federal petition on August 10, 2007. He was not, however, diligent

20 in filing an amended petition, although he was given leave to do 21 so, or in filing a new action. 22 equitable tolling. 23 Corjasso v. Ayers, 278 F.3d 874, 878-79 (9th Cir. 2002), cited Petitioner is not entitled to

24 by Whitney in his Opposition, is consistent with this Court's 25 conclusion that extraordinary circumstances did not prevent Whitney 26 from timely filing his Petition. In Corjasso, the Ninth Circuit

27 held that "[t]he district court's incorrect dismissal [of the 28 original petition], combined with its loss of the body of 14

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1 Corjasso's petition, constitutes an `extraordinary circumstance' as 2 contemplated by our equitable tolling cases." The circumstances in

3 Whitney's case do not rise to the level of extraordinary. 4 Petitioner has made no other arguments that he has been

5 pursuing his rights diligently but extraordinary circumstances 6 prevented him from timely filing. See Pace, 544 U.S. at 418.

7 Thus, equitable tolling is not appropriate. 8 9 B. Evidentiary Hearing

Whitney asks that an evidentiary hearing be held in connection (Pet. 1.) An evidentiary

10 with his request for habeas relief.

11 hearing is not required "when the files and records in the case 12 conclusively show that the prisoner is entitled to no relief." 13 Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (quoting 14 United States v. Birtle, 792 F.2d 846, 849 (9th Cir. 1986). 15 Furthermore, conclusory allegations that are unsupported by 16 specific facts do not warrant an evidentiary hearing. 17 Woodford, 384 F.3d 567, 588 (9th Cir. 2004). 18 Because the record establishes that Whitney's Petition is Williams v.

19 barred by the one-year statute of limitations, the Court will not 20 conduct an evidentiary hearing. 21 22 V. CONCLUSION Whitney is entitled to statutory tolling during the pendency

23 of his state habeas corpus petition, but he is not entitled to any 24 equitable tolling. Therefore, his second federal Petition was

25 filed after the expiration of the AEDPA statute of limitations. 26 Respondent's Motion to Dismiss the Petition for Writ of Habeas 27 Corpus [doc. no. 11] should be GRANTED. The accompanying request 28 for an evidentiary hearing is DENIED. 15

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1

This Report and Recommendation will be submitted to the United

2 States District Court judge assigned to this case, pursuant to the 3 provisions of 28 U.S.C. § 636(b)(1). Any party may file written

4 objections with the Court and serve a copy on all parties on or 5 before August 31, 2009. The document should be captioned Any reply to the

6 "Objections to Report and Recommendation."

7 objections shall be served and filed on or before September 14, 8 2009. The parties are advised that failure to file objections

9 within the specified time may waive the right to appeal the 10 district court's order. 11 Cir. 1991). 12 13 Dated: July 28, 2009 14 15 cc: 16 17 18 19 20 21 22 23 24 25 26 27 28 16 Judge Burns All parties of record RUBEN B. BROOKS United States Magistrate Judge Martinez v. Ylst, 951 F.2d 1153, 1157 (9th

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