The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
On April 29, 2008 and April 30, 2008, the undersigned held an evidentiary hearing with respect to respondent's motion to dismiss. Petitioner alleged "extraordinary circumstances" excusing a timely filing under the AEDPA statute of limitations on account of physical and mental health problems.
For the reasons set forth below, petitioner is not entitled to equitable tolling; respondent's motion to dismiss based on the AEDPA statute of limitations should be granted. Background
Without repeating the substance of the undersigned's order setting this evidentiary hearing, Order of August 10, 2007, the undersigned essentially found that petitioner's federal habeas filing would be time barred unless petitioner could qualify for equitable tolling from the date of October 12, 2002, to the date of filing of the federal petition, December 3, 2004. The undersigned found that the temporary prison lockdowns would not qualify as reasons to equitably toll the limitations period. Moreover, the lack of education in the law per se was also not cognizable for equitable tolling.
The court did hold open the possibility that petitioner might be able to prove his mental and physical incompetency, citing Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003): "a 'putative habeas petitioner's mental incompetency [is] a condition that is, obviously, an extraordinary circumstance beyond the prisoner's control,' so 'mental incompetency justifies equitable tolling' of the AEDPA statute of limitations." An evidentiary hearing was ultimately scheduled and held.
It is important to emphasize the pertinent period of time to be analyzed here. The only time equitable tolling is needed commences from the time of the Superior Court decision (when communicated -- Oct. 12, 2002) to a time thereafter when it would be deemed "reasonable" for petitioner to have filed his next petition. For purposes of review here, the undersigned will initially examine the entire period between October 12, 2002 to the actual filing of his state Court of Appeal petition, approximately a year later -- October 24, 2003. If this period of time is equitably tolled, statutory tolling could arguably kick in thereafter for the state supreme court petition, as it was filed at a reasonable time after the lower appellate denial, and petitioner's initial federal petition was quickly filed thereafter. That is, absent adverse consideration of the facially unreasonable delay in the filing of his Court of Appeal petition, the federal petition would have been timely filed with appropriate statutory tolling.*fn1 On the other hand, if there were no legally justified basis for the delay between the Superior Court decision, and the next appellate filing, the decision of the state supreme court to deny its petition as untimely would be an automatic disqualifier for federal statutory tolling, and the federal petition would be per se untimely.
However, because of the somewhat speculative nature of the above analysis, and in an abundance of caution, the undersigned will also analyze the entire period of time between the Superior Court decision (October 22, 2002) and the filing of the federal petition (December 3, 2004) for purposes of equitable tolling. For this analysis, no speculation whatsoever need be employed concerning whether the California Supreme Court would have issued the first untimeliness ruling had it known of medical, disabling facts. (See footnote 1).
A. Change in the Governing Law as a Reason
For Equitable Tolling Petitioner first asserts that the case of Evans v. Chavis, 546 U.S. 189, 126 S.Ct. 846, 849 (2006) changed the law in the Ninth Circuit regarding the availability of statutory tolling for lengthy time periods "in-between" the actual pendency of state habeas corpus petitions. Under prior Ninth Circuit precedent, if the state court did not unambiguously identify the time period in questions as being too lengthy for state purposes, the interval between filings of state petitions was automatically considered timely under state law. See Chavis v. LeMarque, 382 F.3d 921, 925-926 (9th Cir. 2004). Evans v. Chavis overturned this reasoning and held that the federal courts must determine what would be a reasonable delay in filing state petitions when the state court decisions were silent on the subject, and that 30-60 days was a presumptive time limit for the filing of such petitions.
Petitioner then contends that the recent case of Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008), permits equitable tolling when there has been a change in the law. While Harris does indeed stand for that proposition in the context of the legal issue presented there, there are several reasons why Harris cannot aid petitioner.
From her position on equitable tolling on account of mental/physical illness, i.e., that petitioner was mentally unfit to even understand that a petition need be timely filed, petitioner's counsel understands that she cannot logically contend that petitioner was "relying" on the state of Ninth Circuit law when he unduly delayed the filing of his second state petition (addressed to the Court of Appeal).*fn2 Nevertheless, petitioner contends that reliance on the old law is not required for this "change-in-law" equitable tolling. Petitioner's counsel is incorrect.
First, in Harris, a petitioner's necessary reliance on the old law was emphasized: "The critical fact here is that Harris relied in good faith on then-binding circuit precedent in making his tactical decision to delay filing a federal habeas petition." Id, 515 F.3d at 1055 (emphasis added). A "critical fact" of necessary reliance is not one which can be found to be inconsequential here, and petitioner's plea that it be found ...