Bjorstrom v. San Diego County Sheriff et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION of United States Magistrate Judge; Granting Respondent's 12 Motion to Dismiss First Amended Petition for Writ of Habeas Corpus; Denying as Moot Petitioner's 20 Motion to Appoint Counsel; Declining to Issue Certificate of Appealability. Signed by Judge Michael M. Anello on 2/10/2017.(All non-registered users served via U.S. Mail Service)(ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 16cv151-MMA (WVG) GARY LEE BJORSTROM, Petitioner, 12 13 v. 14 ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; SCOTT KERNAN, Secretary of the California Department of Corrections and Rehabilitation, 15 16 [Doc. No. 18] Respondent. GRANTING RESPONDENT’S MOTION TO DISMISS FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS; 17 18 19 [Doc. No. 12] 20 21 DENYING AS MOOT PETITIONER’S MOTION TO APPOINT COUNSEL; 22 23 [Doc. No. 20] 24 DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 25 26 27 28 Petitioner Gary Lee Bjorstrom, proceeding pro se, has filed a First Amended Petition for writ of habeas corpus (“petition”) pursuant to Title 28, United States Code, 1 16cv151-MMA (WVG) 1 section 2254. See Doc. No. 3. Respondent Scott Kernan, Secretary of the California 2 Department of Corrections and Rehabilitation, moves to dismiss the petition as untimely 3 under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which 4 imposes a one year statute of limitations period to file a federal habeas petition. See Doc. 5 No. 7. The Court referred the matter to United States Magistrate Judge William V. Gallo 6 for preparation of a Report and Recommendation pursuant to Title 28, section 636(b)(1), 7 and Civil Local Rule HC.2. Judge Gallo issued a well-reasoned and thorough report 8 recommending, inter alia, that the Court grant Respondent’s motion and dismiss the 9 petition as untimely. See Doc. No. 12. Petitioner filed objections to the Report and 10 Recommendation, contemporaneously with a motion to appoint counsel. See Doc. Nos. 11 20, 21. Respondent filed supplemental briefing in response to Petitioner’s motion to 12 appoint counsel. See Doc. No. 24. 13 DISCUSSION 14 1. Standard of Review 15 Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 16 636(b)(1), the Court must “make a de novo determination of those portions of the report . 17 . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, 18 the findings or recommendations made by the magistrate [judge].” 28 U.S.C. § 19 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 20 2. Analysis 21 Petitioner objects to the recommendation that his petition be dismissed as untimely 22 under AEDPA on three grounds. First, Petitioner contends that his post-conviction 23 filings in state court tolled the statutory time for filing his petition in federal court. 24 However, Judge Gallo correctly concluded that Petitioner’s state court submissions were 25 not “properly filed” applications for collateral relief under Section 2244(d)(2). Maes v. 26 Chavez, 792 F.3d 1132, 1134 (9th Cir. 2015). 27 28 Petitioner also raises two grounds for equitable relief from the statute of limitations. Petitioner asserts that he was unaware of the applicable one-year statute of 2 16cv151-MMA (WVG) 1 limitations. However, a pro se petitioner’s confusion or “ignorance of the law” is not an 2 “extraordinary circumstance warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d 3 1150, 1154 (9th Cir. 2006). 4 In addition, Petitioner argues that insufficient access to legal resources hindered his 5 ability to timely file a federal petition. Petitioner has complained repeatedly regarding 6 the lack of a law library at his current place of incarceration, East Mesa Detention 7 Facility, and the inadequacy of the legal research materials otherwise available. 8 However, limitations on law library access and research materials are considered to be 9 normal conditions of incarceration, and generally do not entitle a petitioner to equitable 10 relief. Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010). Furthermore, Petitioner 11 did not arrive at the East Mesa facility until several weeks subsequent to the expiration of 12 the AEDPA deadline. As such, any alleged inadequacy in the legal resources available at 13 East Mesa could not have caused him to miss the filing deadline. 14 Petitioner further contends that he attempted unsuccessfully to obtain a federal 15 habeas form prior to the expiration of the statute of limitations. According to Petitioner, 16 he ultimately had to request the form directly from the Clerk of Court, and did not receive 17 the form until after the deadline for filing his federal petition. While a state must provide 18 a law library or legal assistance during the pleading stage of a habeas action, Cornett v. 19 Donovan, 51 F.3d 894, 898 (9th Cir. 1995), Petitioner fails to establish that the lack of a 20 pre-printed federal habeas form resulted in the complete inability to assert his claims. 21 Equitable tolling is available to excuse an untimely petition only when “extraordinary 22 circumstances beyond a prisoner’s control make it impossible to file a petition on time 23 and the extraordinary circumstances were the cause of [the prisoner’s] untimeliness.” 24 Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010) (emphasis in original) (internal 25 quotations omitted). Petitioner makes no such showing, and the record demonstrates that 26 he clearly had the ability to prepare and file legal papers prior to his transfer to the East 27 Mesa facility. 28 3 16cv151-MMA (WVG) 1 Accordingly, upon due consideration and after conducting a de novo review of the 2 pertinent portions of the record, the Court OVERRULES Petitioner’s objections and 3 ADOPTS the Report and Recommendation. 4 Petitioner moves for appointment of counsel to represent him in any further 5 proceedings. Because Petitioner’s petition is untimely and therefore subject to dismissal, 6 the Court DENIES Petitioner’s motion as moot. 7 CERTIFICATE OF APPEALABILITY 8 The federal rules governing habeas cases brought by state prisoners require a 9 district court that dismisses or denies a habeas petition to grant or deny a certificate of 10 appealability in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. 11 § 2254. For the reasons stated above, and those set forth in detail in Judge Gallo’s Report 12 and Recommendation, Petitioner has not shown “that jurists of reason would find it 13 debatable whether the district court was correct in its procedural ruling.” Slack v. 14 McDaniel, 529 U.S. 473, 484 (2000). Accordingly, the Court DECLINES to issue a 15 certificate of appealability. 16 17 CONCLUSION Based on the foregoing, the Court OVERRULES Petitioner’s objections, 18 ADOPTS the Report and Recommendation, DENIES Petitioner’s motion to appoint 19 counsel as moot, and DISMISSES the petition with prejudice. The Court DECLINES to 20 issue a certificate of appealability. The Clerk of Court is instructed to close the case and 21 enter judgment in favor of Respondent. 22 23 24 IT IS SO ORDERED. DATE: February 10, 2017 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 25 26 27 28 4 16cv151-MMA (WVG)

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