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United States District Court, N.D. California

August 31, 2005.

JOHN MARSHALL, Warden, Respondent.

The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge


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 federal petition.

  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.


  The court having today granted respondent's motion to dismiss, judgment is entered against petitioner and in favor of respondents. Petitioner shall obtain no relief by way of his petition.



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