Henderson v. Nooth
Filing
39
Opinion And Order.Petitioner has not made a showing sufficient to equitably toll the statue of limitations; accordingly, his Petition for Writ of Habeas Corpus 2 is untimely, and is DISMISSED WITH PREJUDICE. Defendant's request for evidentiary h earing is DENIED. Pending motions, if any are DENIED AS MOOT. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). (see 10 page opinion and order for further details) Signed on 5/16/12 by Judge Robert E. Jones. (cib)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BRUCE EDWARD HENDERSON,
Plaintiff,
v.
MARK NOOTH, Superintendent at SRCI,
Defendant.
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Kristina S. HeUman
FEDERAL PUBLIC DEFENDER'S OFFICE
101 S. W. Main Street, Suite 1700
Portland, OR 97204
Attorney for Plaintiff
SamuelA. }Cubernick
DEPARTMENT OF JUSTICE
1162 Court Street N.E.
Salem, OR 97301
Attorney for Defendant
No.3:07-cv-01823-JO
OPINION AND ORDER
JONES, Judge:
Petitioner, Bruce Henderson, brings this Petition (doc. #2) for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254, challenging the sentence imposed by the State of Oregon following
petitioner's plea of guilty to one count of Robbery in the Second Degree. Respondent filed an
Answer (doc. #12) and a Response (doc. #11) to the Habeas Petition alleging that petitioner
failed to file his habeas corpus petition within the applicable one-year statute oflimitations
period pursuant to 28 U.S.C. § 2244. In his Reply Regarding The Statute of Limitations (doc.
#33), petitioner admits that his habeas corpus petition was not timely filed, but requests that the
court equitably toll the statute oflimitations and reach the merits of his petition. Upon careful
review of the record in this case, the court concludes that petitioner is not entitled to equitable
tolling, and that an evidentiary hearing is unnecessary because no facts have been alleged that
would entitle petitioner to relief. Petitioner did not timely file his habeas corpus petition;
accordingly, it is dismissed.
BACKGROUND
On October 7, 2003, petitioner pled guilty to robbery and was sentenced in the Lane
County Circuit Court to 120 months imprisonment and three years of supervised release. (Case
No. 20-03-15377, Resp. Ex. 101). Soon thereafter petitioner notified the Office of Public
Defense Services that he wanted to appeal his case. (Pet. Ex. 1). Through that correspondence,
on November 19, 2003, petitioner was alerted to the available avenues to challenge his sentence
including both post-conviction relief and federal habeas corpus relief. (pet. Ex. 1). The letter
from the OPDS advised petitioner to file for post-conviction relief as soon as possible and that,
"there is a one-year time period for filing federal habeas corpus relief." (Pet. Ex. 1).
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Eight months later, petitioner filed for post-conviction relief in Malheur Circuit Court on
July 21,2004. (Resp. Ex. 103). The petition for post-conviction relief was denied by the Circuit
Court. (Resp. Ex. 110). The Circuit Court's decision was summarily affirmed by the Oregon
Court of Appeals. (Resp. Ex. 114). The Oregon Supreme Court denied review and the judgment
became fInal on May 8, 2007. (Resp. Ex. 116, 117).
On September 23,2007, petitioner sent correspondence to an Oregon Department of
Corrections paralegal, Nelson, including all of his legal materials. (Pet. Ex 2). In his
communication, petitioner expressed that he was unsure whether or not he could still file a
federal habeas corpus petition, but that he was waiting on the opportunity to make his legal call
to be sure. (Pet. Ex. 2). A few days later, on September 26,2007, a prison staff member,
Rochester, responded to petitioner that, "you have about 3 months to file a federal habeas." (pet.
Ex. 2) This advice turned out to be inaccurate, as the petition was actually due on September 3,
2007.
On November 30, 2007, petitioner signed his federal habeas corpus petition and it was
filed in the official court record on December 10, 2007. The parties agree that petitioner'S habeas
corpus petition was 90 days late. (Pet. Reply at 4). Petitioner argues that the statute of
limitations should be equitably tolled because extraordinary circumstances prevented him from
filing his petition for habeas corpus on time.
DISCUSSION
1.
Equitable Tollinl
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a "I-year period of
limitation shall apply to an application for a writ of habeas corpus by a person in custody
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pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(I). Statutory tolling of this
limitation period is available for "[t]he time during which a properly filed application for State
post-conviction or other collateral review ... [is pending]." 28 U.S.C. § 2244(d)(2). The parties
agree that the AEDPA limitation period was tolled while petitioner pursued post-conviction
relief. Accounting for this tolling, petitioner's federal habeas petition was due September 3,
2007. 1
Petitioner did not sign the instant federal habeas petition until 90 days after the statute of
limitations had run. However, the U.S. Supreme Court has recognized that in certain situations
equitable tolling of § 2244(d) may be appropriate. Holland v. Florida, 130 S.Ct. 2549, 2560
(2010). Here, the court must determine whether petitioner is entitled to equitable tolling where
his access to legal materials was severely restricted due to his .disciplinary segregation in the
Intensive Management Unit, and given that he received inaccurate legal advice from a prison
staff member.
The existence of extraordinary circumstances sufficient to justifY equitably tolling the
statute oflimitations under AEDPA is based on a "determination [that] is highly fact dependent."
Espinoza-Matthews v. Californii!, 432 F.3d 1021,1026 (9th Cir. 2005) (internal quotation marks
omitted) (citing WhalemlHunt v. Early. 233 F.3d 1146, 1148 (9th Cir. 2000)). In addition,
Between November 10,2003, the deadline for petitioner to directly appeal his sentence,
and July 16, 2004, the date on which petitioner instituted his petition for post-conviction relief,
249 days accrued. Between July 16,2004, and May 8, 2007, the date on which petitioner's post
conviction relief became final, the time period was tolled in accordance with statute. 28 U.S.C.
§ 2244(d)(2). After May 8, 2007, petitioner had 116 days left in which to file his federal habeas
petition, or until September 1, 2007. Because the deadline fell on a Saturday, the petition was
due September 3, 2007. Fed. R. Civ. P. 6(a).
1
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petitioner "bears the burden of showing that equitable tolling is appropriate." Gaston v. Palmer,
417 F.3d 1030, 1034 (9th Cir. 2003).
The Ninth Circuit has found that extraordinary circumstances exist where "external
forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim."
Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). In this case, petitioner argues that the
extraordinary circumstances of his incarceration prevented him from timely filing his habeas
petition.
A.
Segregation in the Intensive Management Unit
The first extraordinary circumstance that petitioner identifies as preventing his timely
filing is his almost continuous incarceration in segregation. Petitioner argues that he has spent no
more than 18 days outside of disciplinary segregation during his incarceration. (Pet. Reply at 7).
As a consequence of his segregation in the Intensive Management Unit (IMU), petitioner has had
his access to telephone calls and the law library severely limited. Id.
A petitioner who is temporarily deprived of access to his legal file is not entitled to
equitable tolling as a matter oflaw. Vigliotto v. Terrv, 873 F.2d 1201, 1202-1203 (9th Cir.
1989). If a petitioner is denied access early in the statutory period, or if the file is returned long
before the end of the statutory period, a court may fmd that the petitioner still had sufficient
opportunity to complete his petition within the statutory period. See Allen v. Lewis, 255 F.3d
798 (9th Cir. 2001) (no equitable tolling where petitioner was deprived offile for 27 days one
month into limitations period and received file with eleven months remaining); see also Fisher v.
Johnson, 174 F.3d 710 (5th Cir. 1999) (no equitable tolling found where petitioner had six
months to complete petition after being returned to his usual quarters).
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However, a sufficiently long deprivation oflegal materials can justifY equitable tolling.
In Lott v. Mueller, the Ninth Circuit observed that habeas petitions under the AEDPA are of
"grave importance," and approved of equitable tolling for a prisoner who was denied access to
his file for 82 days. 304 F.3d 918, 922 (9th Cir. 2002).2 The Ninth Circuit also extended
equitable tolling to a prisoner who was denied access to his files for eleven months while in
Administrative Segregation, noting that after their return "[petitioner] had only slightly over a
month with his legal file to try to prepare a proper petition." Espinoza-Matthews, 432 F.3d at
1028.
As noted above, however, petitioner "bears the burden of showing his own diligence and
that the hardship caused by lack of access to his materials was an extraordinary circumstance that
caused him to file his petition [90 days] late." Waldron-Ramsey v. Pacholke, 556 F.3d 1008 (9th
Cir. 2009); see also Pace v. DiGuglielmo, 544 u.S. 408, 418 (2005). An extraordinary
circumstance alone is insufficient, the extraordinary circumstance must have"actually prevented
[him] from preparing or filing a timely petition." Shannon v. Newland, 410 F.3d 1083,1090 (9th
Cir. 2005) (emphasis supplied).
Petitioner has alleged that segregation in the IMU has significantly limited his access to
legal resources. While it is clear from petitioner's citations to the administrative rules of the
prison that limitations on legal resources do exist as a result of segregation, petitioner has not
alleged how these limitations in fact prevented his timely filing. Petitioner had 116 days from
the date judgment was final on his petition for post-conviction relief in which to file his habeas
The Ninth Circuit remanded the case to give the government the opportunity to meet
the petitioner's allegations, but expressed that the allegations, if true, would support equitable
tolling. Id. at 925-26.
2
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petition. Petitioner has neither alleged facts nor adduced any evidence to suggest that this was an
insufficient amount of time to fill out the fifteen-page fonn petition that is available for prisoners
to file habeas claims.
The cases in which the deprivation of a prisoner's legal files have resulted in equitable
tolling are distinguishable from petitioner's case. For instance in Lott, the prisoner was
completely denied access to his legal materials for 82 days. 304 F.3d at 924. In addition, the
court noted the confusing case law at the time was such that, "even with the benefit oflegal
training, ready access to legal materials and the aid of four years of additional case law, an
infonned calculation of Lott's tolling period evaded both his appointed counsel and the expertise
of a federal magistrate judge." Id. at 923. In this case, petitioner has not alleged a complete
denial of his materials nor an opaque state of the law, which might have posed an extraordinary
circumstance.
Further, in Espinoza-Matthews, the prisoner was deprived of his legal materials
completely for nearly eleven months. 432 F.3d at 1028. The prisoner in that case diligently
sought his materials from prison authorities but did not receive them until a month before the
deadline to file. Id. Petitioner here has not alleged that at any time he was completely denied
access to his file or legal materials, only that his access was limited.
Finally, petitioner's allegations that it was impossible in fact to file on time are belied by
the fact that he was apparently simultaneously preparing a motion to correct his sentence in Lane
County Circuit Court. On November 29,2007, one day before signing his habeas petition,
petitioner filed his motion to correct. (Resp. Ex. 118). Since petitioner was able to fmd the time
and legal resources to prepare a motion for state court during this period, the circumstances of his
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incarceration were not an extraordinary impediment. Further, the fact that he was also working
on his state motion to correct suggests that, had he spent that time diligently preparing his federal
habeas petition, he might have been able to file it on time.
B. Reliance on Inaccurate Information From the Prison
The second extraordinary circumstance that petitioner identifies is that he received
inaccurate information on the filing deadline from a prison staff member. Petitioner has shown
that he sent correspondence to the prison paralegal inquiring about his habeas claim. A prison
staff member wrongly replied to that correspondence that petitioner had about three months to
file. The inaccuracy of this advice, while extremely unfortunate, is not dispositive for the
petitioner in this case; this allegation does not rise to the level of extraordinary circumstances
sufficient to equitably toll the statute of limitations. Alexander v. Schriro, No. 05-17389, 2009
WL 464233, at *2 (9th Cir. Feb. 25, 2009) (unpublished) (holding that incorrect legal advice
given by a prison paralegal in calculating the limitations period does not constitute extraordinary
circumstances); and see Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (holding that a
miscalculation by an attorney does not amount to extraordinary circumstances).
Ultimately, petitioner was responsible for correctly calculating the limitations period and
timely filing his federal habeas petition. See Raspberrv v. Garci!!, 448 F.3d 1150, 1154 (9th Cir.
2006) (holding that petitioner's inability to correctly calculate the limitations period is not an
extraordinary circumstance justifYing equitable tolling). In this case, petitioner had been on
notice since at least November 19, 2003, that the federal habeas corpus statute of limitations is
one year. That is the date on which petitioner received a letter from the OPDS alerting him to
this fact. Further, petitioner's own evidence establishes that he did not contact the prison
8 - OPINION AND ORDER
paralegal for advice on his federal habeas claim until September 23, 2007-twenty days after the
deadline for filing had passed. While the circumstances suggest that petitioner relied on the
inaccurate information, had the information been correct, the answer would have been that he
had already missed the deadline. The prison paralegal did not do or fail to do anything that
actually made it impossible for petitioner to file on time.
The Ninth Circuit has ruled that equitable tolling must meet a very high threshold.
Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). "The exception for equitable tolling
cannot be interpreted so broadly as to displace the statutory limitations that Congress crafted."
Waldron-Ramsey, 556 F.3d at 1014. For these reasons, petitioner's reliance on inaccurate legal
information from the prison staff is not an extraordinary circumstance sufficient to justify
equitable tolling.
2.
Evidentiary Hearing
A petitioner should be afforded the opportunity for an evidentiary hearing when he makes
"a good-faith allegation that would, if true, entitle him to equitable tolling." Laws v. Lamarque,
351 F.3d 919, 921 (9th Cir. 2003). While in some ways this is a close case, petitioner's brief is
devoid of allegations that would elevate his circumstances from unfortunate to extraordinary.
Petitioner is not able to truthfully allege that due to his segregation he had no access to the
federal habeas petition form; no access to writing implements; that he sent persistent
communication to the prison paralegal; or that he persistently sought his legal phone call to no
avail. Any number of truthful allegations that could demonstrate petitioner's extraordinary
deprivation might have resulted in an evidentiary hearing, but the facts do not support such a
fmding in this case.
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CONCLUSION
Based on the foregoing, petitioner has not made a showing sufficient to equitably toll the
statute of limitations; accordingly, his Petition for Writ of Habeas Corpus (doc. #2) is untimely,
and is DISMISSED WITH PREJUDICE. Defendant's request for an evidentiary hearing is
DENIED. Pending motions, if any, are DENIED AS MOOT.
The court declines to issue a Certificate of Appealability on the basis that petitioner has
not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C.
§ 2253(c)(2).
IT IS SO ORDERED.
DATED this
t(.. day of May, 2012.
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