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Tanner v. Kramer


November 3, 2006


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge



Petitioner, a state prisoner proceeding pro se, filed the instant § 2254 petition for a writ of habeas corpus on April 10, 2006. Petitioner challenges his October 27, 1995 conviction in San Diego Superior Court for robbery, assault with a semiautomatic firearm, and possession of marijuana for sale, for which he was sentenced to approximately twenty-four years in prison. Respondent now moves to dismiss the petition on the ground that the petition is time-barred. On September 11, 2006, Magistrate Judge Anthony J. Battaglia issued a Report and Recommendation ("R&R") recommending that the motion be granted.

Both petitioner and respondent filed timely objections to the R&R. The objections raise the issues of (1) whether the R&R correctly tolls the statute of limitations under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and (2) whether the R&R correctly determined that Petitioner was not entitled to equitable tolling. After reviewing the papers de novo as well as the parties' objections, the court finds that resolution of these issues is not possible given the current state of the record. Therefore, the court REMANDS the petition to the magistrate for the issuance of a new R&R consistent with this order.


The duties of the district court in connection with a magistrate judge's R&R are set forth in the Federal Rules of Civil Procedure Rule 72(b) and 28 U.S.C. § 636. The district court "shall make a de novo determination of those portions of the report . . . to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 676 (1980).


Petitioner's conviction became final on July 22, 1997 when the California Court of Appeal issued a remittitur after affirming Petitioner's conviction. See Lodgment 2. Years later, on March 3, 2004, Petitioner filed a habeas petition in the California Supreme Court ("CSC"). On December 22, 2004, the CSC denied the petition (the "CSC Petition") for lack of timeliness, citing In re Robbins, 18 Cal. 4th 770, 780 (1998) (noting that habeas petition is not entitled to presumption of timeliness when filed more than ninety days after the final due date for filing of appellant's reply brief on the direct appeal). In papers submitted with the instant petition, Petitioner alleges that he has filed other state habeas petitions in addition to the CSC Petition, but Petitioner has not produced any evidence of these additional petitions.

With these state proceedings in mind, the court now addresses the parties' objections.


A. AEDPA's Statute of Limitations

AEDPA provides a one-year statute of limitations for state prisoners to file complaints in federal court seeking collateral review of their state convictions:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--

(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 by such State action;

(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 the exercise of due diligence.

(2) 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 shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d). The time an application is "pending" under § 2244(d)(2), AEDPA's tolling provision, includes the time between the lower court judgment and the filing of a notice of appeal. Carey v. Saffold, 536 U.S. 214, 217 (2002); see also Evans v. Chavis, 126 S.Ct. 846, 849 (2006) (reiterating Carey rule). California does not have a bright-line statute of limitations for the filing of habeas petitions; rather, "a petitioner seeking relief on habeas corpus need only file a petition without substantial delay, or, if delayed, adequately explain the delay." In re Harris, 5 Cal. 4th 813, 828 (1993).

B. The R&R's Findings

The R&R correctly finds, and the parties do not dispute, that the limitations period has expired under § 2244(d)(1). The R&R goes on to find that out of the seven years and four months between final judgment (on July 22, 1997) and the denial of the CSC Petition (on December 22, 2004),*fn1 only the nine months between the filing of the CSC Petition (on March 3, 2004) and the CSC's denial of same (on December 22, 2004) can be considered "pending" under § 2244(d)(2). R&R at 6-7. Relying on Carey, the R&R therefore recommends these nine months be statutorily tolled. Id. The R&R only analyzes the CSC Petition for purposes of statutory tolling because

The very nature of statutory tolling limits the evidence that can be considered when determining whether time should be tolled. The statute measures reasonable time between direct appeal or collateral review, focusing on whether any action was pending.

The only evidence therefore is the record. Here, Petitioner did not file any notice to any court before filing his state habeas petition [in the CSC on March 3, 2004].

R&R at 5. Thus, the R&R appears to provide that since the record contained no evidence of state habeas petitions other than the CSC Petition, then only the CSC Petition is eligible for statutory tolling under § 2244(d)(2).

C. Respondent's Objections

Respondent objects to the tolling of the nine months described above, citing Pace v. DiGuglielmo, 544 U.S. 408 (2005). Pace held that when a state habeas petition has been rejected by the state as untimely, it is not a "properly filed application" and therefore cannot be one "pending" under § 2244(d)(2). Id. at 410. Respondent argues that since the CSC Petition was ultimately deemed untimely, as evidenced by the denial order's reference to In re Robbins, 18 Cal. 4th 770, then Pace forecloses the nine months from being statutorily tolled. Respondent's Objections at 1-2.

Respondent's objection has merit. Under Pace, an application for post-conviction relief is not "pending" under § 2244(d)(2) if the state court ultimately deems the application untimely. Pace, 544 U.S. at 410; see also Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir. 2005), amended, 439 F.3d. 993, cert. denied, 2006 WL 1621895 (U.S. Oct. 2, 2006) (citing Pace and holding that a state petition which is ultimately dismissed by California courts as untimely was neither "properly filed" nor "pending" during the time it was under consideration by the state courts). Therefore, the court rejects the portion of the R&R recommending statutory tolling of the nine months between petitioner's filing of the CSC Petition and the CSC's eventual denial of that petition for untimeliness.

D. Petitioner's Objections

Petitioner objects to the R&R's failure to statutorily toll the time he was allegedly pursuing two state habeas petitions other than the CSC Petition addressed in the R&R. Petitioner's Objections at 1. Specifically, Petitioner alleges that he filed a state habeas action in California Superior Court, case number S123001; no other information about this petition is provided. Pet. at 3. Petitioner also alleges that he filed for collateral review in the California Court of Appeal, but provides no further details. Id. In his CSC Petition, which is lodged with the court, Petitioner also alleges two state habeas petitions: one filed in Superior Court and another one filed in the Court of Appeal. Lodgment 3 at question 13.

Petitioner did not make his "time should be tolled for my two other state habeas petitions" argument until he filed his objections, and therefore the magistrate did not have the opportunity to address it before issuing the R&R. However, the court must nevertheless consider the argument when deciding whether to adopt the R&R. Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002) (finding that district court abused its discretion by not considering pro se petitioner's equitable tolling argument raised for first time in objections to R&R where prisoner was an illiterate prisoner who raised a relatively novel claim under relatively new statute).

Although the R&R is correct that the record contains no evidence of any state habeas petitions other than the CSC Petition, R&R at 5, the court believes the record should be further developed before the merits of Respondent's motion can be adequately addressed. See Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (holding that a district court errs in dismissing a habeas petition without first pursuing factual development of an equitable tolling claim). In addition, Petitioner is acting pro se and his pleadings should be liberally construed. Maleng v. Cook, 490 U.S. 488, 493 (1989). Although this principle does not excuse the production of competent evidence in support of Petitioner's objection that the R&R should have statutorily tolled time for these two alleged state petitions, the current record does put the court on notice that these two additional state petitions may exist. If their existence is established, the additional petitions could be material to the statutory tolling analysis depending on the attendant facts. See, e.g., Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (holding that AEDPA's 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).

In sum, the current record does not allow the court to sufficiently assess the merits of Petitioner's objections to the R&R's statutory tolling analysis. Therefore, the issue is remanded for further proceedings before the magistrate as to the nature and circumstances of the two alleged state habeas petitions.


A. Standard for Equitable Tolling

AEDPA's one-year statute of limitations is subject to equitable tolling. Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled on other grounds,163 F.3d 530 (9th Cir. 1998). Equitable tolling "will not be available in most cases, as extensions of time will only be granted if 'extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Id. at 1288-89 (quoting Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996)). The petitioner bears the burden to show that the "extraordinary circumstances" he has identified were the proximate cause of his untimeliness, rather than merely a lack of diligence on his part. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).

B. The R&R's Findings

The R&R rejects petitioner's argument that he is entitled to equitable tolling because a corrections officer allegedly destroyed petitioner's legal paperwork in retaliation for filing an administrative grievance, thereby preventing Petitioner from timely filing the instant petition. See Lott v. Mueller, 304 F.3d 918, 924 (9th Cir. 2002) (holding that temporary denial of access to legal materials can satisfy "extraordinary circumstances" requirement for equitable tolling). The R&R reasons as follows:

[T]he confiscation [of petitioner's legal documents] must have been the proximate cause to the untimeliness. Here, Petitioner's Opposition does not set forth the date the officer allegedly took and destroyed Petitioner's legal documents, but Petitioner's evidence suggests he did not file the [administrative grievance complaining of the officer's conduct] until December 15, 2000, well after the statute of limitations for federal habeas corpus relief expired . . . . This evidence of the loss of legal materials cannot be seen as the proximate cause for the petitioner's delay. Had the alleged confiscation occurred prior to the statute of limitations expiration date, Petitioner would have a better chance of arguing equitable tolling. However, because the alleged confiscation occurred after the running of the statute of limitations, Petitioner has failed to met [sic] his burden that the extraordinary circumstance was the proximate cause of his delay. Rather, the evidence shows a lack of diligence on the part of the Petitioner.

R&R at 8. However, as discussed in part IV-D of this order, the expiration of the statutory limitations period cannot yet be determined on the current record. Therefore, it cannot yet be known whether "the alleged confiscation occurred after the running of the statute of limitations[.]" Id. In addition, Petitioner should be given leave to amend his papers to include the date his legal documents were allegedly confiscated and destroyed, since this fact, if established, could alter the proximate cause analysis. See Early, 233 F.3d at 1148 (finding dismissal of habeas petition for untimeliness improper where district court did not give pro se petitioner, who asked that his petition be equitably tolled, an opportunity to amend his petition, respondent was not asked to respond to petitioner's declaration, and no evidentiary hearing was held); see also Laws v. LaMarque, 351 F.3d 919, 924 (9th Cir. 2003).

C. Respondent's Objections

Respondents have no objections to the R&R's equitable tolling analysis.

D. Petitioner's Objections

Petitioner objects to the R&R's finding that he is not entitled to equitable tolling. Petitioner's Objections at 2. Petitioner argues that he did not receive notice of the CSC's December 22, 2004 denial until January 2006. See Petitioner's Objections at 2; Oppo. at 3, Ex. titled "Legal Mail January 18, 2006" (Petitioner's legal mail ledger showing Petitioner received mail from the CSC on January 18, 2006). As a result, Petitioner argues, he did not file the instant petition until April 2006, ninety days after he became aware of the CSC denial. Petitioner's Objections at 2. The court construes this argument as a request for equitable tolling of the time between December 22, 2005 and April 10, 2006 based on failure to receive timely notice of the CSC's denial. Although the argument was first made explicit in Petitioner's objections,*fn2 it should still be considered on remand. Brown, 279 F.3d at 745.


The court SUSTAINS the parties' objections to the extent set forth above and REMANDS the petition for further development of the record and the issuance of a new R&R consistent with this order. Issues warranting further briefing on remand include (1) the circumstances of the two state habeas petitions Petitioner allegedly filed, including when the petitions were filed, when and why they were denied, and how their existence, if established, affect the tolling analysis, if at all; (2) when the alleged destruction of Petitioner's legal documents took place, if at all; and (3) the merits of Petitioner's argument that he is entitled to equitable tolling for failure to receive timely notice of the December 22, 2004 denial of his CSC Petition. Since Petitioner contends that his legal documents have been destroyed, the court ORDERS Respondent to make a reasonably diligent effort to search for any records or information relative to Petitioner's assertion that he filed two additional state habeas petitions, and to provide the court with the results of that effort within 60 days of entry of this order. The court so orders Respondent without accepting as true the allegation that Petitioner's documents were destroyed, but merely in the interest of expediting this litigation.


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