The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
Petitioner is a prisoner who filed this pro se petition for a
writ of habeas corpus under 28 U.S.C. § 2254. Respondent has
filed a motion to dismiss the petition as untimely; petitioner
has filed an opposition, and respondent has filed a reply.
In 1998, a jury in Alameda County Superior Court found
petitioner guilty of second degree murder, and the trial court
sentenced him to a term of imprisonment of fifteen years to life.
On July 24, 2000, the California Court of Appeal affirmed the
conviction, and on September 27, 2000, the Supreme Court of
California denied the petition for review. On December 2, 2002,
petitioner filed a habeas petition in the Superior Court, which
was denied the same day. On January 9, 2003, petitioner filed a
habeas petition in the California Court of Appeal, which was
denied on January 15, 2003. On February 20, 2003, petitioner
filed a habeas petition in the Supreme Court of California, which was
denied on December 23, 2003. Petitioner thereafter filed the
instant petition in the Eastern District of California, after
which it was transferred to this district.
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") became law on April 24, 1996, and imposed for the first
time a statute of limitations on petitions for a writ of habeas
corpus filed by state prisoners. Petitions filed by prisoners
challenging non-capital state convictions or sentences now must
be filed within one year from "the date on which the judgment
became final by conclusion of direct review or the expiration of
the time for seeking such review."
28 U.S.C. § 2244(d)(1)(A).*fn1
Here, the state courts' direct review of petitioner's
conviction and sentence ended on September 27, 2000, when the
Supreme Court of California denied the petition for review.
However, the "time for seeking" direct review under
28 U.S.C. § 2244(d)(1)(A) includes the ninety-day period within which a
petitioner can file a petition for a writ of certiorari from the
United States Supreme Court under Supreme Court Rule 13, whether
or not the petitioner actually files such a petition. See
Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). As a result,
petitioner's "time for seeking" direct review expired, and the
one-year limitations period for filing a federal habeas petition
began, on December 27, 2000, ninety days after September 27,
2000. One year later, on December 27, 2001, the limitations
period expired. The instant petition is deemed filed in federal
court on June 8, 2004,*fn2 nearly two and a half years
later. Consequently, absent tolling, the instant petition is
Although the one-year limitations period may be tolled for the
"time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending," see
28 U.S.C. § 2244(d)(2), petitioner's first state habeas petition was not filed until December 2, 2002, nearly one
year after the limitations period had expired. Because
petitioner's first application for post-conviction or other
collateral review was filed in the state courts after the
limitations period had already expired, petitioner is not
entitled to tolling pursuant to § 2244(d)(2). See Ferguson v.
Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding "section
2244(d) does not permit the reinitiation of the limitations
period that has ended before the state petition was filed.").
The one-year limitations period can be equitably tolled if
"extraordinary circumstances beyond a prisoner's control make it
impossible to file a petition on time." See Calderon v. United
States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir.
1997). Here, petitioner states he did not file the instant
petition on time because he did not know about the limitations
period. Petitioner's ignorance of the limitations period does not
in and of itself constitute a ground for equitable tolling,
however. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.
2000); Felder v. Johnson, 204 F.3d 168, 171-72 & n. 10 (5th
Cir. 2000); cf. Hughes v. Idaho State Bd. of Corrections,
800 F.2d 905, 909 (9th Cir. 1986) (holding illiteracy of pro se
petitioner not sufficient cause to avoid procedural bar).
Petitioner also states that he contacted various legal
organizations, seeking representation on his petition, and that
one of those organizations told him there was no specific
deadline for filing a habeas petition. Such incorrect advice from
an attorney does not warrant equitable tolling. See Frye v.
Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (holding, in
noncapital cases, attorney's miscalculation of limitations period
and negligence in general do not constitute extraordinary
circumstances sufficient to warrant equitable tolling). In any
event, a review of the correspondence from the organization in
question reveals that counsel was referring to the absence of a
deadline for filing a habeas petition in the state courts, not
the federal courts, and there is nothing to indicate this advice
was inaccurate.*fn3 See Opp. Exh. 2.
Petitioner further states he did not file the petition on time
because it was not until December 2000 that he retrieved, from a
relative's house, "evidence" he wanted to use in support of the claims in his petition.*fn4 Petitioner's
failure to obtain in timely fashion the materials he needed does
not constitute the kind of "external force" beyond his control
that would render the timely filing of his habeas petition
impossible. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th
Cir. 1999) ("When external forces, rather than a petitioner's
lack of diligence, account for the failure to file a timely
claim, equitable tolling of the statute of limitations may be
appropriate."). Moreover, after receiving the
"evidence," petitioner waited two more years, until December 2002,
before pursuing his claims in a state petition.
Finally, petitioner states that he did not have time to prepare
the petition because he chose to participate in "programs"
offered to inmates by the prison. Petitioner's decision to
allocate his time to prison programs as opposed to the
preparation of his petition likewise is not an "external force"
that prevented his timely filing of the petition.
In sum, none of the reasons submitted by petitioner constitutes
a basis for tolling the limitations period. As a result, the
petition must be dismissed as untimely.
For the foregoing reasons, respondent's motion to dismiss is
GRANTED and the petition for a writ of ...