United States District Court, N.D. California
December 15, 2005.
JAMES L. SAYLOR, Petitioner,
ANTHONY KANE, Acting Warden, Respondent(s).
The opinion of the court was delivered by: CHARLES BREYER, District Judge
ORDER GRANTING MOTION TO DISMISS (Doc # 6)
Petitioner, a state prisoner incarcerated at the Correctional
Training Facility in Soledad, California, seeks a writ of habeas
corpus under 28 U.S.C. § 2254. Per order filed on May 17, 2005,
the court noted that the petition appears untimely and ordered
respondent to move to dismiss the petition on the ground that it
is untimely, or otherwise inform the court that respondent is of
the opinion that a motion to dismiss is unwarranted in this case.
Respondent filed a motion to dismiss the petition as untimely
under 28 U.S.C. § 2244(d). Petitioner filed an opposition arguing
that he is entitled to equitable tolling and delayed commencement
of the pertinent limitation period, and respondent filed a reply. BACKGROUND
Petitioner was convicted of second degree murder by jury in the
Superior Court of the State of California in and for the County
of San Mateo. Allegations that petitioner used a firearm and
caused great bodily injury were also found to be true. On October
22, 1992, petitioner was sentenced to 20 years to life.
On July 21, 1994, the California Court of Appeal affirmed the
judgment of the superior court and, on November 16, 1994, the
Supreme Court of California denied review.
Petitioner did not seek further review until June 16, 2003,
when he began seeking collateral relief from the state courts by
filing a petition for a writ of habeas corpus in the Superior
Court of the State of California in and for the County of
Monterey. It was denied on June 20, 2003.
On December 9, 2003, petitioner filed a petition for a writ of
habeas corpus in the California Court of Appeal. It was denied on
December 18, 2003.
On February 13, 2004, petitioner filed a petition for a writ of
habeas corpus in the Supreme Court of California. It was denied
on December 15, 2004.
On February 24, 2005, petitioner filed the instant federal
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 limitation on petitions for a writ of habeas
corpus filed by state prisoners. 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: (A) the
judgment became final after the conclusion of direct review or
the time passed for seeking direct review; (B) an impediment to
filing an application created by unconstitutional state action
was removed, if such action prevented petitioner from filing; (C)
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 (D) 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.
AEDPA's one-year limitation period did not start to run earlier
than April 24, 1996. A state prisoner with a conviction finalized
before April 24, 1996, such as petitioner, therefore generally
had until April 23, 1997 to file his federal habeas petition.
See Calderon v. United States District Court (Beeler),
128 F.3d 1283, 1287 (9th Cir. 1997), overruled in part on other
grounds by Calderon v. United States District Court (Kelly),
163 F.3d 530 (9th Cir. 1998) (en banc). The instant petition was not
filed until February 24, 2005, however. It is untimely unless the
limitation period was tolled for a substantial period of time.
Section 2244(d)(2) tolls the one-year limitation period 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." 28 U.S.C. § 2244(d)(2).
Unfortunately for petitioner, by the time he filed his first
state habeas petition on June 16, 2003, the one-year limitation
period had long expired on April 24, 1997. A state habeas
petition filed after AEDPA's statute of limitation ended cannot
toll the limitation period under § 2244(d)(2). See Ferguson v.
Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice,
276 F.3d 478, 482 (9th Cir. 2001). Section 2244(d)(2) cannot
"revive" the limitation period once it has run (i.e., restart the
clock to zero); it can only serve to pause a clock that has not
yet fully run. "Once the limitations period is expired,
collateral petitions can no longer serve to avoid the statute of
limitations." Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998).
Petitioner claims he is entitled to equitable tolling of the
limitation period because he lacked the necessary legal and
educational skills to understand the provisions of AEDPA and file
his petition on time. He also claims that he is entitled to
delayed commencement of the limitation period under §
2244(d)(1)(B) because he was incorrectly advised by
prison-assigned inmate legal clerks that his case was not
governed by AEDPA, and under § 2244(d)(1)(D) because he did not
have all of his trial records until June 2003.
1. Legal and educational skills
The one-year limitation period may be equitably tolled if
"extraordinary circumstances beyond a prisoner's control make it
impossible to file a petition on time." Beeler,
128 F.3d at 1288 (citation and internal quotation marks omitted). The
prisoner "must show that the `extraordinary circumstances' were
the cause of his untimeliness." Spitsyn v. Moore, 345 F.3d 796,
799 (9th Cir. 2003) (citations omitted). Equitable tolling is
justified in few cases. "Indeed, the threshold necessary to
trigger equitable tolling [under AEDPA] is very high, lest the
exceptions swallow the rule." Miranda, 292 F.3d at 1066
(citation and internal quotation marks omitted).*fn1 The
prisoner "bears the burden of showing that this extraordinary
exclusion should apply to him." Id. at 1065. Petitioner's claim for equitable tolling based on his assertion
that he lacked the necessary legal and educational skills to
understand the provisions of AEDPA and file his petition on time
is without merit. It is well-established that lack of
understanding of the law and legal process are not considered
extraordinary circumstances entitling pro se prisoners to
equitable tolling of AEDPA's limitation period. See Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (ignorance of the
law, including existence of AEDPA, insufficient to warrant
equitable tolling of limitation period); Felder v. Johnson,
204 F.3d 168, 172-73 & n. 10 (5th Cir. 2000) (ignorance of the law or
lack of knowledge of filing deadlines does not justify equitable
tolling of limitation period); Cantu-Tzin v. Johnson,
162 F.3d 295, 299-300 (5th Cir. 1998) (pro se status during state habeas
proceedings did not justify equitable tolling of limitation
period); 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).
2. Unqualified inmate legal clerks
Under § 2244(d)(1)(B), the one-year limitation period starts on
the date on which "an 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 by such State action." Petitioner claims he is entitled to
delayed commencement of the limitation period under §
2244(d)(1)(B) because the state "created an impediment commencing
in 1996 when he was advised by prison assigned, unqualified legal
clerk inmates, that his case was not governed by AEDPA."
Petitioner's claim is without merit.
The few cases applying § 2244(d)(1)(B) have dealt almost
entirely with the conduct of prison officials who interfere with
inmates' ability to prepare and to file habeas petitions, and
comport with the plain meaning of the provision, "which applies when a petitioner has been impeded from filing a habeas
petition." Shannon v. Newland, 410 F.3d 1083, 1087 (9th Cir.
2005). For example, a petitioner's inability to learn about
AEDPA's limitation period because there were no AEDPA materials
available in the prison library may constitute an impediment to
the filing of a timely petition, see Whalem/Hunt v. Early,
233 F.3d 1146, 1148 (9th Cir. 2000) (en banc), but an unfavorable
state appellate opinion that may discourage a petitioner from
seeking collateral review is not an impediment to the filing of a
timely petition, see Shannon, 410 F.3d at 1087. Petitioner's
claim that he was incorrectly advised by prison-assigned inmate
legal clerks in 1996 that his case was not governed by AEDPA is
more like Shannon than Whalen/Hunt. Although the incorrect
advice petitioner received may have discouraged him from
diligently seeking habeas relief, it did not impede him from
doing so and ultimately filing a timely petition. Petitioner is
not entitled to delayed commencement of the limitation period
under § 2244(d)(1)(B). See also Tacho v. Martinez,
862 F.2d 1376, 1381 (9th Cir. 1988) (reliance on incompetent "jailhouse
lawyers" did not amount to "cause" to excuse procedural default);
Henderson v. Johnson, 1 F. Supp. 2d 650, 655 (N.D. Tex. 1998)
(reliance on bad advice from jailhouse lawyer not extraordinary
circumstance requiring equitable tolling of limitation period).
After all, the Ninth Circuit made clear in 1997 that state
prisoners whose convictions were finalized before April 24, 1996
had only until April 23, 1997 to file a federal petition. See
Beeler, 128 F.3d at 1287. Petitioner waited until June 2003 to
start seeking collateral relief. He is not entitled to delayed
commencement, or equitable tolling, of the limitation period
based on his claim of bad advice in 1996.
3. Trial records
Under § 2244(d)(1)(D), the one-year limitation period starts on
the date on which "the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence." The time begins "when the prisoner knows (or through
diligence could discover) the important facts, not when the
prisoner recognizes their legal significance." Hasan v. Galaza,
254 F.3d 1150, 1154 n. 3 (9th Cir. 2000) (citation and quotation
marks omitted). Section 2244(d)(1)(D) accordingly allows the
limitation period to start running at a later date "when the
facts on which a federal habeas claim is based would not have
been discovered by a duly diligent petitioner." Ybanez v.
Johnson, 204 F.3d 645, 646 (5th Cir. 2000) (citation omitted).
Petitioner claims he is entitled to delayed commencement of the
limitation period under § 2244(d)(1)(D) because he did not
receive all of his trial records until June 2003 and, therefore,
"it was literally impossible for him to have prepared his claims
prior to 2003." The claim is without merit.
Petitioner confuses knowledge of the factual predicate of his
claims with the time permitted for developing and gathering
evidence in support of the claims: "Section 2244(d)(1)(D) does
not convey a statutory right to an extended delay . . . while a
habeas petitioner gathers every possible scrap of evidence that
might . . . support his claim[s]." Flanagan v. Johnson,
154 F.3d 196, 198-99 (5th Cir. 1998). Petitioner argues that he was
unable "to develop," as opposed to discover, "the factual
predicate of his [ineffective assistance of counsel] claims." But
the record makes clear that petitioner could have "discovered"
the factual predicate of all of his claims by simply consulting
his memory of the trial proceedings (not to mention the portion
of the trial record he concedes he had in his possession long
before June 2003). See, e.g., United States v. Battles,
362 F.3d 1195, 1198 (9th Cir. 2004) (in analogous habeas case under §
2255, holding that although petitioner did not have access to
trial transcripts, the facts supporting claims which occurred at the time of his conviction could have been discovered
if he "at least consult[ed] his own memory of the trial
proceedings;" because he did not do so, he did not exercise due
diligence and was not entitled to a delayed start of the
limitation period under § 2255(4)). That petitioner chose to wait
until he had all portions of the trial record before filing for
collateral relief (presumably to develop and perfect his claims)
is not a valid reason for delaying commencement of the limitation
period under § 2244(d)(1)(D). Accord id.*fn2
For the foregoing reasons, respondent's motion to dismiss the
petition as untimely (doc # 6) is GRANTED.
The clerk shall enter judgment in favor of respondent and close
© 1992-2006 VersusLaw Inc.