The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (Doc 6)
This is a habeas case brought pro se by a state prisoner under
28 U.S.C. § 2254. Respondent has filed a motion to dismiss on
grounds the petition is barred by the statute of limitations.
See 28 U.S.C. § 2244(d)(1). Petitioner has opposed the motion
and respondent has filed a reply. The motion is submitted.
The statute of limitations is codified at 28 U.S.C. § 2244(d).
Petitions filed by prisoners challenging non-capital state
convictions or sentences must be filed within one year of the
latest of the date on which: (1) the judgment became final after
the conclusion of direct review or the time passed for seeking
direct review; (2) an impediment to filing an application created
by unconstitutional state action was removed, if such action
prevented petitioner from filing; (3) the constitutional right
asserted was recognized by the Supreme Court, if the right was
newly recognized by the Supreme Court and made retroactive to
cases on collateral review; or (4) the factual predicate of the
claim could have been discovered through the exercise of due
diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly
filed application for state post-conviction or other collateral
review is pending is excluded from the one-year time limit. Id. § 2244(d)(2).
Respondent asserts, and petitioner does not dispute, that he
was sentenced in 1999. He did not file a direct appeal. His first
state court challenge to the conviction and sentence was a state
habeas petition filed on December 9, 2002. Because his state
habeas petitions were not filed until after expiration of the
statute of limitations, they did not toll it, and he does not
contend they did.
In his opposition to the motion to dismiss petitioner asserts
that he is entitled to equitable tolling because of his
difficulties with English and his mental condition. The
opposition is not supported by a declaration nor is the
opposition itself signed under penalty of perjury, so these
factual allegations are not properly before the court. See
Civil Local Rule 7-5(a) (proof of facts in motions or oppositions
to motions to be by affidavit or declaration).
However, even disregarding that, petitioner's assertions are
not sufficient to establish a right to equitable tolling.
Respondent's excellent reply and the exhibits in support of it
show why: First, although petitioner contends that he does not
speak English, at trial he testified in English without use of
his stand-by interpreter, ex. 8 at 110-140,*fn1 and he was
able to communicate clearly in an interview with a psychologist
for the purpose of determining his competency to stand trial, ex.
4 at 1. Secondly, although he contends he is illiterate in
English, in fact he was exempted from a prison educational
requirement because he scored well, including on a reading test,
in the Test of Adult Basic Education, ex. 6 at 81, and a letter
he wrote to a friend was read by prison staff and acted upon, ex.
7 at 219, suggesting that it was in English. Third, although it
is clear that he had a psychiatric episode at the time of his
arrest, pet. at attached ex. A (San Francisco General Hospital
medical records), that condition was treated, id., he was found competent to stand
trial, ex. 4, pages 1, 6; ex. 5 (clerk's transcript) at 19-20,
and there is no evidence that he suffered from a recurrence of
the mental illness during the time when he should have filed his
Petitioner's arguments for equitable tolling are unavailing.
His conclusory assertions do not, especially in the face of
extensive countervailing evidence, establish "`extraordinary
circumstances' beyond his control mak[ing] it impossible to file
a petition on time." See Beeler, 128 F.3d 1283, 1288-89
(quoting Alvarez-Machain v. United States, 107 F.3d 696, 701
(9th Cir. 1997)). In Beeler the Ninth Circuit Court of Appeals
noted that equitable tolling "will not be available in most
cases" and expressed its confidence that the district courts
would "take seriously Congress's desire to accelerate the federal
habeas process, and will only authorize extensions when this high
hurdle is surmounted." See id. The court would not be doing
so were it to allow equitable tolling on this record.
Petitioner has failed to establish a right to equitable
tolling. The motion to dismiss will be granted.
Respondent's motion to dismiss (doc 6) is GRANTED. The petition
is DISMISSED. The clerk shall close the file.
IT IS SO ORDERED. JUDGMENT
The court having today granted respondent's motion to dismiss,
judgment is entered against petitioner and in favor of
respondents. Petitioner shall ...