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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16cv151-MMA (WVG)

GARY LEE BJORSTROM,
Petitioner,

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v.

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ORDER ADOPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE;

SCOTT KERNAN, Secretary of the
California Department of Corrections
and Rehabilitation,

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[Doc. No. 18]

Respondent.

GRANTING RESPONDENT’S
MOTION TO DISMISS FIRST
AMENDED PETITION FOR WRIT OF
HABEAS CORPUS;

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[Doc. No. 12]

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DENYING AS MOOT PETITIONER’S
MOTION TO APPOINT COUNSEL;

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[Doc. No. 20]

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DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY

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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,
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16cv151-MMA (WVG)

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section 2254. See Doc. No. 3. Respondent Scott Kernan, Secretary of the California

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Department of Corrections and Rehabilitation, moves to dismiss the petition as untimely

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under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which

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imposes a one year statute of limitations period to file a federal habeas petition. See Doc.

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No. 7. The Court referred the matter to United States Magistrate Judge William V. Gallo

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for preparation of a Report and Recommendation pursuant to Title 28, section 636(b)(1),

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and Civil Local Rule HC.2. Judge Gallo issued a well-reasoned and thorough report

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recommending, inter alia, that the Court grant Respondent’s motion and dismiss the

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petition as untimely. See Doc. No. 12. Petitioner filed objections to the Report and

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Recommendation, contemporaneously with a motion to appoint counsel. See Doc. Nos.

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20, 21. Respondent filed supplemental briefing in response to Petitioner’s motion to

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appoint counsel. See Doc. No. 24.

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DISCUSSION

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1. Standard of Review

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Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. §

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636(b)(1), the Court must “make a de novo determination of those portions of the report .

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. . to which objection is made,” and “may accept, reject, or modify, in whole or in part,

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the findings or recommendations made by the magistrate [judge].” 28 U.S.C. §

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636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

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2. Analysis

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Petitioner objects to the recommendation that his petition be dismissed as untimely

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under AEDPA on three grounds. First, Petitioner contends that his post-conviction

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filings in state court tolled the statutory time for filing his petition in federal court.

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However, Judge Gallo correctly concluded that Petitioner’s state court submissions were

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not “properly filed” applications for collateral relief under Section 2244(d)(2). Maes v.

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Chavez, 792 F.3d 1132, 1134 (9th Cir. 2015).

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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
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limitations. However, a pro se petitioner’s confusion or “ignorance of the law” is not an

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“extraordinary circumstance warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d

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1150, 1154 (9th Cir. 2006).

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In addition, Petitioner argues that insufficient access to legal resources hindered his

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ability to timely file a federal petition. Petitioner has complained repeatedly regarding

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the lack of a law library at his current place of incarceration, East Mesa Detention

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Facility, and the inadequacy of the legal research materials otherwise available.

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However, limitations on law library access and research materials are considered to be

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normal conditions of incarceration, and generally do not entitle a petitioner to equitable

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relief. Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010). Furthermore, Petitioner

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did not arrive at the East Mesa facility until several weeks subsequent to the expiration of

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the AEDPA deadline. As such, any alleged inadequacy in the legal resources available at

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East Mesa could not have caused him to miss the filing deadline.

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Petitioner further contends that he attempted unsuccessfully to obtain a federal

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habeas form prior to the expiration of the statute of limitations. According to Petitioner,

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he ultimately had to request the form directly from the Clerk of Court, and did not receive

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the form until after the deadline for filing his federal petition. While a state must provide

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a law library or legal assistance during the pleading stage of a habeas action, Cornett v.

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Donovan, 51 F.3d 894, 898 (9th Cir. 1995), Petitioner fails to establish that the lack of a

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pre-printed federal habeas form resulted in the complete inability to assert his claims.

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Equitable tolling is available to excuse an untimely petition only when “extraordinary

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circumstances beyond a prisoner’s control make it impossible to file a petition on time

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and the extraordinary circumstances were the cause of [the prisoner’s] untimeliness.”

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Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010) (emphasis in original) (internal

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quotations omitted). Petitioner makes no such showing, and the record demonstrates that

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he clearly had the ability to prepare and file legal papers prior to his transfer to the East

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Mesa facility.

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Accordingly, upon due consideration and after conducting a de novo review of the

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pertinent portions of the record, the Court OVERRULES Petitioner’s objections and

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ADOPTS the Report and Recommendation.

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Petitioner moves for appointment of counsel to represent him in any further

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proceedings. Because Petitioner’s petition is untimely and therefore subject to dismissal,

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the Court DENIES Petitioner’s motion as moot.

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CERTIFICATE OF APPEALABILITY

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The federal rules governing habeas cases brought by state prisoners require a

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district court that dismisses or denies a habeas petition to grant or deny a certificate of

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appealability in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll.

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§ 2254. For the reasons stated above, and those set forth in detail in Judge Gallo’s Report

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and Recommendation, Petitioner has not shown “that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Accordingly, the Court DECLINES to issue a

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certificate of appealability.

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CONCLUSION
Based on the foregoing, the Court OVERRULES Petitioner’s objections,

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ADOPTS the Report and Recommendation, DENIES Petitioner’s motion to appoint

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counsel as moot, and DISMISSES the petition with prejudice. The Court DECLINES to

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issue a certificate of appealability. The Clerk of Court is instructed to close the case and

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enter judgment in favor of Respondent.

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IT IS SO ORDERED.
DATE: February 10, 2017

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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