Bateson v. Angeloze

Filing 29

OPINION AND ORDER: The Petition for Writ of Habeas Corpus 2 is DENIED and this case is DISMISSED with prejudice. Because petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2), a Certificate of Appealability is also DENIED. Signed on 2/7/2019 by Judge Ann L. Aiken. A copy of this Order was mailed to pro se petitioner Robert Verlyn Bateson. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

Case No. 3:17-cv-01989-MK
OPINION AND ORDER

ROBERT VERLYN BATESON,
Petitioner,
vs.
SUPERINTENDENT RICK
ANGELOZZI,
Respondent.
AIKEN, District Judge:

United States Magistrate Judge Jolie Russo issued her Findings and Recommendation
("F&R") (doc. 18) in this case on August 21, 2018. Judge Russo recommended that petitioner
Robe1i Bateson's prose petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (doc. 2)
be denied and the case be dismissed. For the reasons explained below, the Court ADOPTS the
F&R and DENIES petitioner's petition (doc. 2).
STANDARD OF REVIEW
Under the Federal Magistrates Act ("Act"), the Court may "accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(l).

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If a party files objections to a magistrate judge's F&R, "the court shall make a de novo
detem1ination of those p01iions of the repo1i or specified proposed findings or reconunendations
to which objection is made." Id.; Fed. R. Civ. P. 72(b)(3).
For those po1iions of a magistrate judge's F&R to which neither party has objected, the
Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985)
("There is no indication that Congress, in enacting [the Act], intended to require a district judge to
review a magistrate's report to which no objections are filed."); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en banc)(holdingthatthe Couti must review a magistrate judge's
findings and recommendations de novo if objection is made, "but not otherwise"). Although in
the absence of objection no review is required, the Act "does not preclude further review by the
district judge[] sua sponte ... under a de novo or any other standard." Thomas, 474 U.S. at 154.
Indeed, the Advisory Committee Notes to Rule 72(b) recommend that"[w]hen no timely objection
is filed," the Court review the magistrate judge's recommendations for "clear error on the face of
the record."
DISCUSSION
On November 17, 2017, petitioner signed his petition for writ of habeas c01pus, alleging
two claims of ineffective assistance of counsel. Respondent argues that the petition is untimely
and petitioner's claims are barred by the one-year statute of limitations in 28 U.S.C. §
2244(d)(l )(A). Judge Russo found that petitioner failed to file his petition within the relevant
limitations period and rejected petitioner's claim of equitable tolling, which was based on
petitioner's assertion that his appellate attorney negligently failed to file a direct appeal on his
behalf.

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Petitioner filed timely objections (doc. 20), and respondent filed a response (doc. 21).
Therefore, I will review de novo the specific portions of the F&R to which petitioner objected.
Petitioner objects to Judge Russo's determination that his attorney's alleged inaction did
not entitle petitioner to equitable tolling. Judge Russo explained that a petitioner is "entitled to
equitable tolling 'only if he shows "(l) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way" and prevented timely filing.' Holland, 560 U.S.
at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408,418 (2005)). A petitioner who fails to file a
timely petition due to his own lack of diligence is not entitled to equitable tolling. Id." F&R at 3.
Judge Russo reasoned
Petitioner's arguments do not support equitable tolling. Although petitioner
maintains that an appellate attorney thwmied his attempt to file an appeal, the
attorney infotmed him that he could not appeal the eighty-month sentence imposed
in his case. Pet'r Response, Att. 2 (ECFNo. 17-1). Even if petitioner could establish
that the attorney's alleged inaction constituted extraordinary circumstances and
contributed to the untimeliness of his federal petition, petitioner fails to establish
that he pursued his rights diligently. After judgment was entered on petitioner's
PCR petition in April 2017, petitioner did not appeal and did not seek federal habeas
relief until November 2017.

Id. at 4. I agree with Judge Russo's analysis of the issue and find no error in this portion of the
F&R.
Petitioner also assetis, for the first time, additional grounds for equitable tolling. In his
objections, petitioner stated that he had proof of several weeks during which he could not access
the law library because of prison lock downs and several weeks during which he could not work
on his habeas petition because he was engaged fighting out-of-district wildfires. But petitioner did
not attach any evidence to supp01i his assertions.
I issued an Order (doc. 23) allowing petitioner to submit additional documentation
supporting his new claims. Petitioner filed his supplemental documentation (doc. 24) on October

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29, 2018. I also granted respondent leave to reply to petitioner's supplemental documentation,
which respondent filed on November 28, 2018. (doc. 28).
Ordinarily, reviewing comis do not consider evidence or arguments that were raised for
the first time in objections. However, because petitioner is prose and his arguments and evidence
concern equitable tolling, the Court exercises its discretion to consider petitioner's new equitable
tolling arguments and the additional evidence supporting them. Sossa v. Diaz, 729 F.3d 1225,
1231 (9th Cir. 2013).
Having reviewed petitioner's objections and evidence and respondent's reply, I conclude
that petitioner's new arguments do not support equitable tolling. First, petitioner alleges that
extended prison lock downs prevented him from accessing the law library to work on his direct
appeal and state post-conviction relief ("PCR") petition. Petitioner offers "Law Library Request
Form[s]" reflecting petitioner's requests to access the law library from January 2016 tln-ough
December 2016. (doc. 24, Ex. 1 at 8-28) The forms do not support petitioner's argument that he
was denied access to the law library for extended periods of time, however. Instead, the evidence
suggests that petitioner had regular access to the law library and to a legal assistant from the time
that a final judgment of conviction was entered to the time that he filed his state PCR petition.
Petitioner is not entitled to equitable tolling on this ground.
Next, petitioner alleges that he was not able to access the law library to work on his habeas
petition for 46 days while working as a fire fighter. Petitioner offers a Certificate of Achievement
(doc. 24, Ex. 1 at 29) that indicates that he served as a wildland firefighter on nine fires during the
2017 fire season. Petitioner also offers a record of his trust account, which reflects that he was
paid for his work on at least two of the fires on May 23 and May 24, 2018. (doc. 24, Ex. 1 at 30).
Neither that record, nor the ce1iificate indicates when or for how many days petitioner fought fires

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in 2017. Petitioner's evidence does not demonstrate that his fire-fighting work contributed to the
untimeliness of his federal habeas petition or that the work constituted extraordinary circumstances
beyond petitioner's control. Petitioner is not entitled to equitable tolling on this ground.
Because petitioner's petition was untimely and he is not entitled to equitable tolling, his
petition is barred by the statute of limitations.
CONCLUSION

The Petition for Writ of Habeas Corpus (doc. 2) is DENIED and this case is DISMISSED
with prejudice.

Because petitioner has not made a substantial showing of the denial of a

constitutional right pursuant to 28 U.S.C. § 2253(c)(2), a Certificate of Appealability is also
DENIED.
IT IS SO ORDERED.

/1111\

DATED this-+ day of February 2019.

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Ann Aiken
United States District Judge

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