The opinion of the court was delivered by: CHARLES BREYER, District Judge
ORDER GRANTING MOTION TO DISMISS (Doc # 7)
Petitioner, a state prisoner incarcerated at the Sierra
Conservation Center in Jamestown, California, seeks a writ of
habeas corpus under 28 U.S.C. § 2254. Per order filed on February
28, 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 of the pertinent limitation period, and respondent filed
a reply. BACKGROUND
On February 14, 1991, petitioner was sentenced to 15 years to
life in state prison after pleading guilty to second degree
murder in the Superior Court of the State of California in and
for the County of Santa Clara. He did not appeal.
On July 21, 2003, petitioner began seeking collateral relief
from the state courts by filing a petition for a writ of habeas
corpus in the California Court of Appeal. It was denied on
September 16, 2003.
On October 2, 2003, petitioner filed a petition for a writ of
habeas corpus in the Supreme Court of California. It was denied
on June 23, 2004.
On September 29, 2004, 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: (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).
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 a 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
September 29, 2004, 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 July 21, 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
Petitioner claims he is entitled to equitable tolling of the
limitation period because: (1) he lacks English language skills
and education; (2) lockdowns were imposed during the relevant
time period; and (3) he is actually innocent.
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 lacks English skills and education is without merit. It
is well-established that neither illiteracy nor pro se status are
extraordinary circumstances or external factors that may excuse
the many and oftentimes complex procedural requirements a
prisoner encounters when seeking federal habeas corpus relief.
See, e.g., 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); United States v.
Flores, 981 F.2d 231, 236 (5th Cir. 1993) (pro se status,
illiteracy, deafness and lack of legal training not external
factors excusing abuse of the writ); 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).
Petitioner's alleged lack of English skills and education do not
compel a different result here. Accord Hansana v. Garcia, No. C 03-1137 SI (PR), 2004 U.S. Dist. LEXIS 24471, at
*4 (N.D. Cal. Dec. 2, 2004) (lack of legal training and limited
English language skills not extraordinary circumstances
justifying equitable tolling); Ramos v. Carey, No. C 03-1323 SI
(PR), 2003 U.S. Dist. LEXIS 13304, at *11 (N.D. Cal. July 31,
2003) (rejecting prisoner's claim for equitable tolling because
his "knowledge of the English language is severely limited").
After all, petitioner has communicated effectively with the court
and respondent throughout these proceedings. He has not shown
that his alleged lack of English skills and education "were the
cause of his untimeliness." Spitsyn, 345 F.3d at 799.
Petitioner's claim for equitable tolling based on his assertion
that while a prisoner at Pelican Bay State Prison "lockdowns, and
no movement periods lasted years at a time" is without merit.
Petitioner sets forth no allegations whatsoever specifying the
dates he was actually on lockdown, or explaining how being on
lockdown during those dates made it impossible for him to file a
petition on time. His conclusory allegations of lockdowns do not
warrant equitable tolling. Cf. Lindo v. Lefever,
193 F. Supp. 2d 659, 663 (E.D.N.Y. 2002) ("[t]ransfers between prison
facilities, solitary confinement, lockdowns, restricted access to
the law library and an inability to secure court ...