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United States District Court, S.D. California

November 16, 2005.

LANCE R. MARTIN, Petitioner,
DARRELL ADAMS, Warden, Respondent.

The opinion of the court was delivered by: ROGER BENITEZ, District Judge

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 statutory tolling.

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 date.").

  "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) and (C).

  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 specificity).

  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 tolling.

  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.



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