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Gresham v. Subia

September 3, 2008

MICHAEL WILLIAM GRESHAM, PETITIONER,
v.
R.J. SUBIA, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner pled nolo contendere to violations of Cal. Penal Code § 288.5(A), engaging in continuous sexual abuse of a child, and § 288(A) committing lewd acts with a child, and received a 22-year sentence in Sacramento County Superior Court on 8/19/02. Petition, p. 1; Respondent's Lodged Document1, abstract of judgment. Petitioner purports to raise five grounds in his challenge: 1) ineffective assistance of counsel; 2) "illegal, improper plea and due process errors"; 3) "illegal and improper sentence; 4) prosecutorial misconduct; 5) "transcripts destroyed and denied to indigent petitioner." Petition, pp. 2-7.

Pending before the court is respondent's motion to dismiss as barred by the AEDPA statute of limitations, filed on 2/01/08, to which petitioner filed an opposition on 3/07/08, and with the court's permission,*fn1 a supplemental opposition, on 4/15/08, to which respondent filed a reply, on 5/14/08.*fn2 Motion to Dismiss The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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.

Respondent and petitioner agree that petitioner filed no direct appeal. Thus, petitioner's conviction became final for AEDPA purposes on October 18, 2002. Motion to Dismiss (MTD), p. 3, citing Cal. Rule of Court 30.1, revised as 8.308; see also, Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006) (as to a conviction wherein a direct appeal is not filed, judgment is not final until 60 days after conviction). The one-year statute of limitations began to run the day after the date of final conviction/judgment, on October 19, 2002. MTD, p. 3, citing Patterson v. Stewart, 252 F.3d 1243, 1246 (9th Cir. 2001). Therefore, petitioner had until October 20, 2003, to file a timely federal petition. MTD, p. 3 & n. 4, noting that although the 10/18/03 expiration date fell on a Saturday, the period expired on Monday, October 20, 2003, The instant petition, filed on October 16, 2007, is untimely by nearly four years, according to respondent, absent any applicable tolling. MTD, p. 4.

Section 2244(d)(2) provides that 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. According to respondent, petitioner filed four pro se post-conviction collateral challenges: 1) a Sacramento County petition, filed on 10/18/05, denied on 3/28/06;*fn3 2) a habeas petition in the Third District Court of Appeal (DCA), filed on 9/26/06,*fn4 denied on 10/05/06; 3) a second habeas petition in the Third DCA, filed on 12/05/06, denied on 12/14/06;*fn5 4) a state supreme court habeas petition, filed on 3/29/07, with a supplemental petition, filed on 4/06/07, denied on 9/12/07. The instant petition was filed, as noted, on 10/16/07. MTD, p. 2, Resp. Lodged Docs 2-10. Affording petitioner the benefit of the mailbox rule,*fn6 the court will deem the petition filed on October 10, 2007, still nearly four years beyond the statutory deadline. Both parties concede that petitioner's filing was untimely under the statute and that statutory tolling is not applicable because of the tardy state filings; thus, the only question before this court is whether petitioner is entitled to equitable tolling.

Equitable Tolling

In Calderon v. U.S. District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled on other grounds, Calderon v. U. S. District Court (Kelly), 163 F.3d 530 (9th Cir. 1998), itself abrogated by Woodford v. Garceau, 538 U.S.202, 123 S.Ct. 1398 (2003), the Ninth Circuit found that the statute of limitations could be equitably tolled if extraordinary circumstances beyond a prisoner's control made it impossible to file the petition on time. "In addition, '[w]hen external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling may be appropriate.'" Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002), quoting Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling will not be available in most cases because tolling should only be granted if extraordinary circumstances beyond a prisoner's control make it impossible for him to file a petition on time. Beeler, 128 F.3d at 1288-89. As held in Beeler, "[w]e have no doubt that district judges will take seriously Congress's desire to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is surmounted." 128 F.3d at 1289. "Mere excusable neglect" is insufficient as an extraordinary circumstance. Miller v. New Jersey Dept. of Corrections, 145 F.3d 616, 619 (3rd Cir. 1998). Moreover, ignorance of the law does not constitute such extraordinary circumstances. See Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986).

In the Calderon (Beeler) case, the Court of Appeals held that the district court properly found equitable tolling to allow Beeler more time to file his petition. Beeler's lead counsel withdrew after accepting employment in another state, and much of the work he left behind was not useable by replacement counsel -- a turn of events over which the court found Beeler had no control. The Court of Appeals held that the district court properly found these were "extraordinary circumstances" sufficient to toll the statute of limitations.*fn7

The Ninth Circuit also found extraordinary circumstances in Calderon v. U.S. Dist. Ct. For Cent. Dist. Of Ca. (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). The three reasons given which independently justified tolling were: a district court stay which prevented petitioner's counsel from filing a habeas petition, mental incompetency until a reasonable time after the court makes a competency determination, and the fact that petitioner did at one time have timely habeas proceedings pending which were mistakenly dismissed, not as a result of any doing by petitioner. Id. at 541-42. See also Corjasso v. Ayers, 278 F.3d 874 (9th Cir. 2002) (clerk's unjustified rejection of a petition justified partial tolling); Miles v. Prunty, 187 F.3d at 1107 (delay by prison in withdrawing funds from prisoner's trust account, preparing and mailing filing fee were circumstances beyond his control, qualifying him for equitable tolling); Stillman v. Lamarque, 319 F.3d 1199, 1202-03 (9th Cir. 2003) (equitable tolling permitted where litigation ...


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