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Lima v. Kramer


August 30, 2007


The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge


[Dkt No. 6]

This state prisoner habeas corpus matter is before the court on the Report and Recommendation ("R&R") of Magistrate Judge Barbara L. Major that this court: deny Respondent's Motion To Dismiss Petitioner James Lima's ("Lima") 28 U.S.C. § 2254 habeas Petition on statute of limitations grounds; grant Respondent's Motion To Dismiss twelve of the thirteen grounds Lima presents in his Petition as procedurally defaulted; and order Respondent to answer Claim 10. Both Respondent and Lima filed Objections to the R&R. Lima filed a Reply to Respondent's Objections. For the reasons discussed below, the R&R is ADOPTED IN PART and REJECTED IN PART, and Respondent's Motion is GRANTED.


As recited in the R&R, and without objection from either Respondent or Lima, Lima is serving a sentence of twenty years in prison for his convictions of conspiracy to commit residential robbery, two counts of residential robbery, false imprisonment by menace, and felonious evasion of a police officer, and a consecutive term of twenty-five years to life for his first-degree murder conviction. Those convictions resulted from a residential robbery and subsequent high-speed chase in February 1999. For federal purposes, after two trials, Lima's conviction became final in 2004. Respondent moves to dismiss the Petition on grounds it is barred by the one-year statute of limitations and Lima procedurally defaulted his claims in state court by raising them in an improper manner, barring federal review. Respondent's Motion To Dismiss thus asserts only procedural obstacles to this court reaching the merits of Lima's claims.


A. Legal Standards

1. Reports And Recommendations

A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. FED.R.CIV.P. ("Rule") 72(b); see 28 U.S.C. § 636(b)(1). The district judge may also "receive further evidence, or recommit the matter to the magistrate judge with instructions." Id. The district judge "shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Rule 72(b); United States v. Raddatz, 447 U.S. 667, 676 (1980). The court also reviews de novo the magistrate judge's conclusions of law. Gates v. Gomez, 60 F.3d 525, 530 (9th Cir. 1995).

2. Federal Habeas Relief

"The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Federal courts review petitions for habeas relief from state prisoners filed after April 24, 1996 under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 327 (1997). Lima's crimes were committed in February 1999, and all state and federal procedural history occurred after AEDPA's effective date.

B. Timeliness

1. Statutory Tolling

AEDPA provides a one-year statute of limitations applicable "to all habeas petitions filed by persons in 'custody pursuant to the judgment of a state court.'" 28 U.S.C. § 2244(d)(1). As pertinent here, "[t]he 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. . . ." 28 U.S.C. § 2244(d)(1). Lima's case became final within that definition on October 26, 2004, ninety days after the California Supreme Court's July 28, 2004 denial of his petition for review following the appeal from his second trial.

The statute of limitations is not tolled "from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). The statute of limitations is tolled while an application for post-conviction review is "pending," including the interval between the lower state court's adverse decision and the prisoner's filing of a notice of appeal in the higher state court, provided that the filing of that notice is timely under state law.*fn1 See Carey v. Saffold, 536 U.S. 214, 222-23 (2002); see also Evans v. Chavis, 546 U.S. 189, 199 (2006) (instructing that until California courts provide otherwise, federal courts reviewing habeas petitions from state prisoners must assume California's indeterminate "reasonable time" rule does not differ significantly from the timeliness law in states with determinate appeal periods, typically providing appeal periods from thirty to sixty days for reasonableness analysis). "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)(2).

The R&R carefully traces the procedural history of Lima's post-conviction filings in state court seeking direct and collateral relief, as well as his federal court proceedings beginning with the October 14, 2005 filing of his first federal habeas Petition in Case No. 05cv1959-W(BLM). That petition was dismissed for failure to allege exhaustion of state court remedies, with leave to correct that defect on or before December 23, 2005 in an amended petition. Lima instead returned to state court to pursue further collateral relief. The federal case was dismissed when Lima failed to file a timely amended petition.

Lima filed the instant federal petition on October 27, 2006 (and an authorized First Amended Petition ("Petition") on December 1, 2006, which remains the operative pleading in this case) after his September 25, 2006 attempt to file an amended petition in his original federal case was dismissed on a Discrepancy Order as untimely. His Petition cannot relate back to the dismissed action. FED. R. CIV. P. 15; Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000). Unless Lima can show either a delayed triggering of the limitations period under 28 U.S.C. § 2254(d)(1), or tolling, his deadline to seek federal habeas relief expired October 26, 2005, a year before he filed this federal habeas action.

Lima filed two habeas petitions in state court: one in San Diego County Superior Court on March 24, 2005, which was pending until May 13, 2005, and one in the California Supreme Court on November 29, 2005, which was denied on August 23, 2006. AEPDA provides he is entitled to tolling of the statute of limitations during the pendency of those state court proceedings. 28 U.S.C. § 2244(d)(2); Carey, 536 U.S. at 222-23. He is not entitled to any statutory tolling for his prior federal petition. See Duncan v. Walker, 533 U.S. 167, 172 (2001). Respondent does not dispute Lima is entitled to some statutory tolling associated with his two state habeas petitions, but contends not enough tolling can be recognized to save his federal Petition from being time-barred.

The R&R analysis concluded, under the statutory tolling rules, Lima's Petition was filed thirty-five days after the one-year AEDPA statute of limitations had run. R&R 13:28-14:2. Neither Respondent nor Lima objects to the statutory tolling analysis or the recommended finding of untimeliness on the statutory limitations issue. The court has reviewed the legal standards applied in reaching that recommended finding and ACCEPTS the R&R analysis and conclusions of law on that timing issue, after de novo consideration of the latter. The court ADOPTS the recommended finding Lima's federal Petition is untimely and must be dismissed in its entirety, unless he is entitled to equitable tolling.

2. Equitable Tolling

The Ninth Circuit deems AEDPA's one-year statute of limitations to be subject to equitable tolling in exceptional cases. See Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (equitable tolling is "unavailable in most cases," and requires a showing of exceptional circumstances beyond the prisoner's control prevented timely filing). Equitable tolling may be applied to relieve a petitioner from an untimeliness bar to federal habeas review only when the petitioner demonstrates "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The inquiry associated with a petitioner's argument for equitable tolling is "highly fact-dependent." Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (per curiam); Lott v. Mueller, 304 F.3d 918, 923 (9th Cir. 2002). Lima did not allege in his Petition that he is entitled to equitable tolling, but he does address the issue in his Opposition to the Motion To Dismiss in response to Respondent's contention in the moving papers he cannot carry his burden to show he is entitled to the benefit of equitable tolling even if he were to advance that theory.

As summarized in the R&R, Respondent contends Lima is not entitled to equitable tolling because had he prosecuted the first federal petition he filed in 2005 by complying with the district judge's October 26, 2005 Order granting him until December 23, 2005 to file an amended petition, there would be no need to consider the timeliness of his current Petition. Lima contends he did comply with the Order, apparently and mistakenly believing that he was only required to present his claims to the California Supreme Court by December 23, 2005 in order to preserve his right to reopen his federal case. The R&R concludes, as argued by Respondent, Lima's misunderstanding does not justify equitable tolling. This court concurs with that conclusion.

In his Traverse, Lima also seeks to justify his delay in filing his habeas petition in the California Supreme Court by contending his belongings, including his legal materials, were confiscated when he was transferred to San Quentin on May 23, 2005. He provides evidentiary support for his representation he was held in administrative segregation until he was transferred from San Quentin to Folsom State Prison on August 4, 2005. Upon his transfer to Folsom, he contends he was held in "fish-roll" housing for two weeks and did not receive his legal materials and other property until September 1, 2005.

Accepting Lima's evidence, the R&R traces in detail the timing and the sequence of events Lima asserts should entitle him to sufficient equitable tolling to save his federal Petition from an untimeliness bar. The R&R calculates Lima was deprived of access to his legal materials from May 23, 2005 to September 1, 2005, representing 102 days of the 193 days that ran between the superior court's adverse decision and Lima's filing of a habeas petition in the California Supreme Court. Applying the Pace standards, the R&R reasoned Lima satisfied the "extraordinary circumstances" prong of the equitable tolling test due to his deprivation of access to his personal legal files for that period, relying on Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003) (opining "it seems unrealistic to expect [a habeas petitioner] to prepare and file a meaningful petition on his own within the limitations period" without access to his legal file), Lott, 304 F.3d at 924 (holding deprivation of the petitioner's legal files for 82 days while he was transferred to another detention center for court appearances would constitute "extraordinary circumstances" adequate to warrant equitable tolling), and Espinoza-Matthews v. California, 432 F.3d 1021, 1028 (9th Cir. 2005) (equitably tolling eleven months of time during which petitioner was housed in administrative segregation without access to his legal files). R&R pp. 15-19. The R&R recommends this court find "Petitioner has met his burden of demonstrating that extraordinary circumstances existed during this period of time and that these circumstances interfered with his ability to file his habeas petition." R&R 19:16-19.

With respect to the "diligence" prong of the Pace test for equitable tolling, the R&R recommends this court find Lima's evidence is sufficient to demonstrate he diligently pursued his rights. Lima challenged his placement in administrative segregation as soon as he was transferred to San Quentin without his legal files, "a mere nine days after the superior court denied his habeas petition." R&R 19:24-27. His challenges were denied at each level within the prison system until June 20, 2005, when the prison granted his administrative appeal and corrected his placement form, but without releasing him from administrative segregation. R&R 19:26-20:7. On those facts, the R&R recommends "the AEDPA limitations period be equitably tolled for the 102 days during which Petitioner lost access to his legal materials (from May 23, 2005 to September 1, 2005)," or, alternatively, that "these facts partially excuse Petitioner's six-month delay in filing his habeas petition with the California Supreme Court and that, therefore, Petitioner is entitled to statutory tolling for this 102-day period."*fn2 R&R 21:2-9, citing Pace, 544 U.S. at 418 and Evans, 546 U.S. at 200-01 (no entitlement to statutory tolling for lengthy, unexplained intervals). The R&R concludes: "With this additional period of tolling, Petitioner's federal petition is timely," recommending Respondent's Motion To Dismiss be denied on that basis.

Respondent objects to the recommended finding Lima has demonstrated extraordinary circumstances warranting equitable tolling. Obj. 1:25-2:7. Respondent argues Lima has not demonstrated the necessary "causal connection" between the lack of access to his files during summer 2005 and his missed filing deadline "because in October 2005 Lima filed a timely federal petition in case number 05cv1959W(BLM)." Obj. 2:9-11, citing Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005), reh'g granted 447 F.3d 1165, 1167 (2007). "Lima's first federal petition was dismissed for noncompliance with a court order (R&R at 4, 6, 15), and this dismissal is the reason for the late filing of his second federal petition, not any earlier inability to access his legal files while in prison." Obj. 2:13-15. Inasmuch as compliance with the court Order was within his control, Respondent argues Lima should not be entitled to equitable tolling. Obj. 2:17-18. Respondent also takes issue with the R&R's analysis "mechanically extend[ing] Lima's filing deadline for each day he allegedly was deprived [of] his legal materials even though this occurred early within the one-year limitations period." Obj. 2:19-21. Respondent continues:

This blanket grant of equitable tolling is inconsistent with the requirement that Lima demonstrate a causal and factual connection between the alleged deprivation and his inability to file, which is at odds with the fact he filed a petition in this Court with time remaining on his limitations period. It also seems inconsistent with the recommendation that the lack of legal materials is not sufficient "cause" to excuse Lima's procedural default.

Obj. 2:21-26, citing R&R pp. 26-27 (regarding lost trial transcripts).

Respondent further objects to the R&R's "alternative" recommendation "granting Lima statutory tolling despite" Evans, 546 U.S. at 197-200, on the reasoning the alleged deprivation of his legal materials "partially" excuses his more than six-month delay. R&R p. 21. Respondent objects that "is not the same explanation Lima provided to the California Supreme Court," where he stated only he "transferred from one prison to another." Obj. 2:27-3:6. Respondent distinguishes this case from Evans because Lima never not seek state habeas relief in the California Court of Appeal. Obj. 3:6-9, also citing Carey, 536 U.S. at 220 (regarding one "full round" of collateral review).

After Lima received his legal files in September 2005, he next sought relief from this Court, not any state court, and he seems to have filed for habeas relief in the California Supreme Court only after this Court explained that his claims were unexhausted. (See Opp. at 5.) These circumstances demonstrate that any inability to work on his case for 104 days was not during an effort to obtain one full round of collateral relief and should have no statutory-tolling effect on his one-year limitations period. Since it took Lima nearly three months after he admittedly received his legal files to return to state court, too much of his delay was Lima's own making to warrant gap and [sic] equitable tolling.

Obj. 3:9-16.

Finally, Respondent objects to the R&R recommendation this court accept Lima's allegation that he had no access to his legal files, despite acknowledging "Lima did not fully document his allegation" (R&R p. 20 "no evidence before the Court. . ."), because the Warden has not provided "any contrary evidence" (R&R pp. 19, 20). Respondent points out the court's December 11, 2006 briefing schedule authorized only an Opposition to a Motion To Dismiss, with no Reply opportunity, precluding a response to Lima's filing. Obj. 3:17-22. Respondent relies on Espinoza-Matthews, 432 F.3d 1026 n.4 (accepting evidence from an unrepresented litigant that was presented for the first time in an objection to a magistrate judge's report) to support its proffer to this court and request for consideration of a Declaration of Matthew Mulford, Esq., the deputy attorney general assigned to represent the Warden in this case, as evidence contrary to Lima's incompletely-documented contentions. Mr. Mulford declares he spoke with the litigation coordinator at San Quentin on May 31, 2007, Denise Dull.

Dull told me that prison records reflect that Lima arrived in San Quentin on May 25, 2005, where he was housed starting on June 1, 2005, in an Administrative Segregation unit, known as the Carson Unit, until his transfer to Folsom on August 4, 2005. Inmates in this unit typically have access in their cell to some personal property, including legal files, and are permitted access to a prison law library for two hours on both Tuesday and Thursday afternoons. Records indicate that Lima arrived with, and left, San Quentin with several boxes of personal property, but the records do not indicate where this property was stored during his time there. There are similarly no records indicating that Lima sought to appeal any denial of time in the prison law library.

Mulford Decl. 1:22-2:3.*fn3

In his Reply to Respondent's Objections to the R&R, Lima states he "will not address that issue since the courts had granted equitable tolling." Reply 2:4-6. However, he does challenge the Mulford Declaration on the issue of access to his personal property or legal files, contending he had "no" access to those, but not under oath. Reply 2:7-8. He maintains each time he was seen by the classification committee, he was denied his personal property and legal files "pending transfer." Reply 2:8-10. He contends: "Respondent is correct, records indicate petitioner arrived with and left San Quentin with several boxes of personal property, 'if' petitioner had any personal property in his cell, records would indicate said property." Reply 2:13-16.

This court is persuaded by Respondent's demonstration regarding Lima's conduct with respect to his pursuit of collateral relief in the fall of 2005. Lima fails to carry his burden to demonstrate the extraordinary remedy of equitable tolling of the one-year AEDPA statute of limitations is warranted due to circumstances beyond his control. The court is also persuaded by Respondent's argument Lima's misunderstanding of the court's December 23, 2005 deadline for filing an amended petition cannot support equitable tolling of the limitations period, as also acknowledged in the R&R. Even accepting Lima's representation as true that he was denied access to his legal files from May 23, 2005 to September 1, 2005, the procedural history of Lima's efforts to obtain collateral relief substantiates he has not shown the necessary "causal connection" between that period of lack of access and his missed deadline, "because in October 2005 Lima filed a timely federal petition in case number 05cv1959W(BLM)." Obj. 2:9-11. On that record, Lima cannot persuasively argue entitlement to equitable tolling based on a causal and factual connection between his alleged deprivation of his personal property and an inability to file for habeas relief in state court while time remained on his federal AEDPA clock and to complete one full round of review.

Accordingly, the court SUSTAINS Respondent's Objections to the R&R recommendation equitable tolling be applied to save Lima's Petition from the untimeliness bar of AEDPA's one-year statute of limitations. The court REJECTS the R&R recommendation for equitable tolling of a sufficient duration to permit Lima to proceed with his federal habeas Petition. Absent equitable tolling, the court lacks jurisdiction over his claims and must GRANT the Motion To Dismiss the Petition in its entirety.

C. Procedural Default

Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). Procedural default will be found when the application of the state procedural rule provides "an adequate and independent state law basis" for the state court to have denied relief. Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000). As the court has concluded Lima's Petition is untimely, the court need not reach Lima's Objections to the R&R recommendation the court find twelve of Lima's thirteen claims were procedurally defaulted.


For all the foregoing reasons, IT IS HEREBY ORDERED the recommendations to apply equitable tolling and to deny Respondent's Motion To Dismiss all claims on grounds the federal Petition was not timely is REJECTED. The court ADOPTS the R&R recommended finding the AEDPA one-year statute of limitations had run before Lima filed this Petition, applying all statutory tolling to which he was entitled. The court need not reach the procedural default grounds for dismissing twelve of Lima's thirteen claims. Respondent's Motion To Dismiss is GRANTED, and the Clerk of Court shall terminate this case.


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