The opinion of the court was delivered by: ROGER BENITEZ, District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION DENYING PETITION FOR A
WRIT OF HABEAS CORPUS AS UNTIMELY (Docket No. 5)
Petitioner LANCE R. MARTIN ("Petitioner" or "Martin") has filed
a petition for a writ of habeas corpus under 28 U.S.C. § 2254
("Petition"). Honorable Magistrate Judge Jan M. Adler issued a
Report and Recommendation ("Report), finding the Petition was
time barred under the one year limitations period prescribed by
the Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA"). Judge Adler also found that Martin was not entitled to
Martin now objects to Judge Adler's findings. The Court has
made a de novo review of the Report. See, 28 U.S.C. §
636(b) (1) (The Court "shall make a de novo determination of
those portions of the report . . . to which objection is made,"
and "may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate [judge].");
see also, Wang v. Masaitis, 416 F.3d 992, 1000 (9th Cir.
2005). For the reasons that follow, the Court ADOPTS the Report
in full. Accordingly, Martin's Petition is DENIED as untimely.
The Clerk shall close the file. Martin filed his Petition in 2005. "Because [Martin's] petition
was filed after AEDPA's effective date, on April 24, 1996, the
provisions of that Act apply to this case." Patterson v.
Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001); see also,
Jenkins v. Johnson, 330 F.3d 1146, 1149 (9th Cir. 2003)
("AEDPA's provisions apply to this case because [petitioner's]
petition was filed after the Act's April 24, 1996 effective
"AEDPA . . . impose[s] a one-year statute of limitations for
state prisoners filing federal petitions for habeas corpus."
Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). The
AEDPA's one year period runs from: "(A) the date on which the
judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review; (B) the date on
which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing
such State action; [or] (C) the date on which the constitutional
right asserted was initially recognized by the Supreme Court, if
the right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or (D)
the date on which the factual predicate of the claim or claims
presented could have been discovered through exercise of due
diligence." 28 U.S.C.A. § 2244(d). Neither the record, nor
Martin, suggest that provisions (B) or (D) apply to his case.
And, as Judge Adler found, Martin does not satisfy provisions (A)
Under provision (A), Martin's "one-year statute of limitations
began to run on . . . the day after his conviction became final."
Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002). Martin's
conviction was affirmed by the California Court of Appeal on
February 24, 1997. Martin did not seek direct review by the
California Supreme Court. Accordingly, Martin's conviction became
final forty (40) days after the California Court of Appeal filed
its order affirming Martin's conviction April 5, 1997. See,
Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002). The statute of
limitations then started running the next day, April 6, 1997.
See, Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.
2001) (Calculating AEDPA's one-year statute of limitations
according to Federal Rule of Civil Procedure 6(a)); FED. R. CIV.
P. 6(a) ("[i]n computing any period of time prescribed . . . by
any applicable statute, the day of the act, event, or default
from which the designated period of time begins to run shall not be included.").
"Accordingly, under AEDPA, [Martin] had until [April 6, 1998]
to file his federal habeas petition." Miranda v. Castro,
292 F.3d 1063, 1065 (9th Cir. 2002). See also, Patterson v.
Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001) (Explaining that
time limits under AEDPA are calculated in accordance with the
provisions of Fed.R.Civ.P. 6(a)). "Because he did not file his
[P]etition until [April 2005], the [P]etition was . . . late.
Absent some kind of tolling, then, the [P]etition was . . .
untimely filed." Miranda v. Castro, 292 F.3d at 1065.
"A petition can . . . be timely, even if filed after the
one-year time period has expired, when statutory . . . tolling
applies." Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir.
2002). "AEDPA's one-year statute of limitation is [statutory]
tolled during the time `a properly filed application for State
post-conviction or other collateral review . . . is pending.'"
Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir. 2003),
quoting, 28 U.S.C. § 2244(d)(2). Under "California's
post-conviction procedure, . . . [this means] the statute of
limitations is tolled from the time the first state habeas
petition is filed until the California Supreme Court rejects the
petitioner's final collateral challenge." Nino v. Galaza,
183 F.3d 1003, 1006 (9th Cir. 1999). But there is no tolling "from
the time a final decision is issued on direct state appeal and
the time the first state collateral challenge is filed because
there is no case `pending' during that interval." Id.
Similarly, "a petitioner is not entitled to tolling during the
gap between the completion of one full round of state collateral
review and the commencement of another." Delhomme v. Ramirez,
340 F.3d at 820.
Here, however, Martin did not have any properly filed
application for State post-conviction or other collateral review
pending to toll the limitations period. As Judge Adler found, and
Petitioner does not contend otherwise in his objections, "it was
not until September 23, 2003, more than six years after Martin's
conviction became final, that he filed his first Petition for
Writ of Habeas Corpus with the San Diego County Superior Court."
(Report at 4:13-16.) By that time, the limitations period had
already ran out and, thus, Martin's Petition is not saved under
provision (A) of the AEDPA.
Nor is Martin entitled to statutory tolling under provision (C)
of the AEDPA. Under that provision, the limitations period is
triggered after a new Supreme Court case is decided and made retroactively applicable to cases on collateral review. Martin
does not provide any such case in his objections. In other words,
Martin has failed to point to a case from the United States
Supreme Court that provided a new Constitutional right and made
that right retroactively applicable to cases on collateral
review. As Judge Adler found, Martin relies on People v.
Rodriguez, 17 Cal. 4th 253 (1998) which is a state court case,
not a U.S. Supreme Court case. In any event, Rodriguez would
not help Martin "since he did not file his state court habeas
petition until some five years after the decision in Rodriguez
was issued." (Report at 5, fn. 1).
The final type of tolling is based on equitable principles. The
Court "will permit equitable tolling of AEDPA's limitations
period only if extraordinary circumstances beyond a prisoner's
control make it impossible to file a petition on time." Green v.
White, 223 F.3d 1001, 1003 (9th Cir. 2000). "[T]he threshold
necessary to trigger equitable tolling [under AEDPA] is very
high, lest the exceptions swallow the rule." Miranda v. Castro,
292 F.3d at 1066. Martin "bears the burden of showing that this
extraordinary exclusion should apply to him." Id.
Martin offers no explanation for his untimeliness. See,
Allen v. Lewis, 255 F.3d 798, 801 (9th Cir. 2001) (Observing
that petitioner "produced no evidence demonstrating that the loss
of access to his habeas materials for 27 days due to his prison
transfer made it impossible for him to file his federal habeas
petition 16 days earlier"); Miller v. Marr, 141 F.3d 976, 978
(10th Cir. 1998) (Rejecting tolling claim for lack of
The only discernable argument would be that Martin is acting
pre se and thus presumably not versed in law. "It is
well-established that pro se status and ignorance of the law
are not generally considered extraordinary circumstances
entitling pro se prisoners to equitable tolling." Wilder v.
Runnels, 2003 WL 22434102 at *2 (N.D.Cal. 2003) (Slip Op.);
see also, Felder v. Johnson, 204 F.3d 168, 172-73 & n. 10
(5th Cir. 2000) ("Our conclusion that Felder's unawareness of
AEDPA's requirements is insufficient to warrant tolling is also
consistent with the determinations of other courts that have
faced similar claims. Mere ignorance of the law or lack of
knowledge of filing deadlines does not justify equitable tolling
of AEDPA's limitation period.") (Citing cases); Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (Stating that "it
is well established that `ignorance of the law, even for an
incarcerated pro se petitioner, generally does not excuse prompt filing'" of a habeas petition); see also,
Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909
(9th Cir. 1986) (Illiteracy of pro se petitioner not sufficient
cause to avoid procedural bar). Moreover, Martin has submitted no
evidence and made no allegation that his ignorance of the AEDPA
filing deadline was "caused by circumstances beyond [his]
control." Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th
Cir. 2001) (En banc). And, even if counsel failed to advise
Martin of the due date for his Petition, the Court would not
reach a different conclusion. See, Frye v. Hickman,
273 F.3d 1144, 1146 (9th Cir. 2001) ("We conclude that the miscalculation
of the limitations period by Frye's counsel and his negligence in
general do not constitute extraordinary circumstances sufficient
to warrant equitable tolling."). See also, Spitsyn v.
Moore, 345 F.3d 796, 800 (9th Cir. 2003) (Holding that "where an
attorney's misconduct is sufficiently egregious, it may
constitute an `extraordinary circumstance' warranting equitable
tolling of AEDPA's statute of limitations."). In short, Martin
has failed to meet his "burden of demonstrating that the
limitation period was sufficiently tolled." Smith v. Duncan,
297 F.3d at 814. Thus, Martin is not entitled to equitable
For the reasons set forth above, the Court fully ADOPTS Judge
Adler's Report, finding that Martin's Petition for Writ of Habeas
Corpus is DENIED as untimely.