Perucci v. Belleque

Filing 42

Opinion and Order. The Petition for Writ of Habeas Corpus 2 is DISMISSED. Signed on 12/15/2010 by Judge Owen M. Panner. (dkj)

Perucci v. Belleque

Doc. 42

IN THE UNITED STATES D I S T R I C T COURT FOR THI: D I S T R I C T OF OREGON PORTLAND D I V I S I O N JASON MICHAEL PERUCCI, C i v i l No. 09-352-PA Petitioner,

v.
BRIAN BELLEQUE, O P I N I O N AND ORDER Respondent. Thomas J. Hester Assistant Federal Public Defender
101 S.W. Main S t r e e t , Suite 1700

Portland, Oregon 97204 Attorney for Petitioner John R. Kroger Attorney General Andrew Hallman Assistant Attorney General Department of Justice 1 1 6 2 C o u r t S t r e e t NE Salem, Oregon 97310 Attorneys for Respondent 1 - O P I N I O N AND ORDER

Dockets.Justia.com

PANNER, D i s t r i c t J u d g e . Peti tioner brings this habeas corpus case pursuant to 28

U.S.C. § 2254 in which he c1allenges the l e g a l i t y of his underlying state convictions for Manslaughter in the Second Degree. For the

reasons t h a t follow, the P e t i t i o n for Writ of Habeas Corpus (#2) i s dismissed.
BACKGROUND

Peti t i o n e r was convicted by a

jury in Curry County of two

counts of second-degree Marslaughter for recklessly causing a fatal automobile collision. A5. a result, the trial court sentenced

p e t i t i o n e r to 150 months in prison. Peti tioner took a direct

Respondent's Exhibit 101. but the Oregon Court of and

appeal,

Appeals affirmed the triaJ. court's Judgment without opinion, the Oregon Supreme Court denied review. App. 280, 67 P.3d 998, Lev.

State v. Perucci, 187 Or. 654, 74 P.3d 1084

denied 335 Or.

(2003) . Petitioner next filed for post-conviction relief ("PCR") in

U m a t i l l a C o u n t y w h e r e t h e PCR t r i a l c o u r t d e n i e d r e l i e f o n h i s claims. The Oregon Court of Appeals affirmed t h i s decision without and the Oregon Supreme Court denied 218 Or. App. (2008). for Writ of Habeas 229, 179 P.3d 752,

issuing a written opinion, review. Perucci v.

Black2tter,

rev. denied 344 Or. 401, 182 P.3d 200 Peti tioner filed his federal

Petition

Corpus on April 3, 2009.

The p a r t i e s agree t h a t p e t i t i o n e r f a i l e d

2 - OPINION AND ORDER

to

file

his

Petition wi t t i n the applicable one-year statute of

limitations, but disagree as to whether petitioner is entitled to equitable tolling.
DISCUSSION

The Antiterrorism and Effective Death Penalty Act

("AEDPA")

was enacted on April 24, 1996 and provides t h a t a one-year s t a t u t e of limitations applies to federal habeas corpus actions filed by state prisoners. 28 U . S . C . 2244 (d) ( 1 ) . According to respondent's

c a l c u l a t i o n , p e t i t i o n e r allowed 525 untolled days to pass p r i o r to filing this action, thereby placing the Petition well outside the applicable 365-day limitation period. Petitioner does not disagree with this calculation, but argues t h a t h e i s e n t i t l e d t o e q u i t a b l e t o l l i n g o f AEDPA' s limi tations because: (11 he was transferred to statute of different

i n s t i t u t i o n s within the Oregon Department of Corrections on four occasions over t h e c o u r s e ) f more than e i g h t years; and (2) he did not receive adequate assistance from inmate legal assistants or from the prisons' outdated l i b r a r i e s . Equitable tolling is available to toll the one-year statute of limitations available to
Holland

28 U . S . C . S.Ct.

§

2254 habeas corpus cases. 2560 (2010) A litigant (1) t h a t he has

v.

Florida,

130

2549,

s e e k i n g t o i n v o k e e q u i tablE~ t o l l i n g m u s t e s t a b l i s h :

been pursuing h i s r i g h t s d i l i g e n t l y and (2) t h a t some e x t r a o r d i n a r y circumstance prevented him from timely f i l i n g his p e t i t i o n .
Pace

3 - O P I N I O N AND ORDER

v. D i G u g l i e l m o , 5 4 4

u.s.

408, 418

(2005).

A p e t i t i o n e r who f a i l s

t o f i l e a t i m e l y p e t i t i o n j u e t o h i s own l a c k o f d i l i g e n c e i s n o t entitled to equitable tolling. (9th Cir. 2001).
Tillema v. Long, 253 F.3d 494, 504

Petitioner bears the burden of showing that this

"extraordinary exclusion" should apply to him. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). Following proceedings, the conclusion of petitioner's direct appellate During

h e w a i t e d 2 H: d a y s t o f i l e h i s PCR a c t i o n .

these 218 days,

he was housed a t the Eastern Oregon Correctional

I n s t i t u t i o n , where he had also been housed for 562 days p r i o r to the conclusion of his direct appeal. With respect to the f i l i n g of

his federal habeas action, p e t i t i o n e r had 147 days to do so a f t e r t h e c o n c l u s i o n o f h i s PCR a c t i o n , a n d h e w a s h o u s e d a t t h e O r e g o n State Penitentiary for aLl 147 of these days. In addition,

p e t i t i o n e r was housed a t t h i s same I n s t i t u t i o n for 484 days p r i o r to the time h i s 147 days even began to run. Thus, the prison

t r a n s f e r s p e t i t i o n e r describes i n h i s A f f i d a v i t i n no way impeded his a b i l i t y to diligently proceed with this case and timely f i l e his Petition. "Equitable t o l l i n g i s a rare remedy to be applied in

u n u s u a l c i r c u m s t a n c e s , n o t a c u r e - a l l f o r a n e n t i r e l y common s t a t e of affairs."
Wallace v. Kato, 549

u.s.

348, 396 (2007).

With respect to p e t i t i o n e r ' s allegation that he had inadequate law library access and inadequate help from in mate legal

assistants thereby hindering his access to the court, petitioner is

4 - OPINION AND ORDER

not e n t i t l e d t o e q u i t a b l e t o l l i n g w h e r e h e w a s a l l o w e d 4 - 5 h o u r s per week for legal researCl, and where he enjoyed court-appointed c o u n s e l a t e v e r y s t a g e o f h i s d i r e c t a p p e a l , e v e r y s t a g e o f h i s PCR a c t i o n , and during t h i s federal habeas corpus. See United S t a t e s v.

Wilson,

690

F.2d

1267,

1272

(9th

Cir.

1982)

(offer

of

court-

appointed counsel is sufficient to satisfy inmate's right of access to the courts, even if the law library at his prison is

inadequate) . Although petitioner makes an alternative request for an

evidentiary hearing on the issue of equitable t o l l i n g , entitled to such a hearing. receive an evidentiary "A h a b e a s p e t i t i o n e r when he makes
'a

he i s not should good-faith

hearing

allegation that would, i f true, e n t i t l e him to equitable t o l l i n g . ' "
Roy v.

Lampert,

465

F.3d 964

(9th Cir.

2006) 919

( i t a l i c s removed) (9th Cir. 2003).

(quoting Laws v. Here,

Lamarque,

351 F.3d 919,

p e t i t i o n e r has not :;:Jrovided the court with any a l l e g a t i o n

that, i f proven true during an evidentiary hearing, would e n t i t l e him to equitable t o l l i n g . Accordingly, the court declines to hold

an evidentiary hearing, and concludes that equitable tolling i s not appropriate in this case.
CONCLUSION

Because

petitioner

failed

to

timely (#2)

file

this

case,

the

Petition for Writ of Habeas Corpus

i s DISMISSED.

The court

declines to issue a C e r t i f i c a t e of Appealability on the basis t h a t 5 - OPINION AND ORDER

petitioner h a s n o t m a d e a s u b s t a n t i a l s h o w i n g o f t h e d e n i a l o f a c o n s t i t u t i o n a l r i g h t pursuant t o 28 U.S.C. I T I S SO ORDERED. DATED t h i s
I
I

§

2253 (c) (2).

I

I

l-)
D

d a y J f qecember, 2010.
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/;

t /,h'L / / t /

i//t/';~tL

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Owen M. P a n n e r United States District Judge

6 - O P I N I O N AND ORDER