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Thomas v. Adams


September 5, 2008


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. (Court Doc. 12.)


Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation serving a state court conviction and judgment.

In the instant petition, Petitioner does not challenge the validity of his conviction or sentence; rather, he contends that the disciplinary decision finding him guilty of conspiring to distribute a controlled substance at High Desert State Prison.

The Rules Violation Report ("RVR") was issued on April 19, 2004, and charged Petitioner with conspiracy to introduce narcotics into the institution for the purpose of distribution. (Exhibit 1, to Motion.) A hearing was held on June 2, 2004, and Petitioner was found guilty as charged in the RVR. (Id. at 2-9.)

Petitioner filed a timely administrative appeal, which was denied at the final level of review on April 11, 2005. (Exhibit 2, to Motion, at 27.)

Thereafter, on April 23, 2006,*fn1 Petitioner filed a petition for writ of habeas corpus in the Lassen County Superior Court challenging the disciplinary action. (Exhibit 3, to Motion, at 34.) The petition was denied on June 9, 2006. (Exhibit 4, to Motion.)

On July 30, 2006, Petitioner filed a state petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District, which was denied on August 24, 2006. (Exhibit 5, to Motion, at 43; Exhibit 6.)

Then, on July 5, 2007, Petitioner filed a petition in the California Supreme Court, which was denied on August 22, 2007. (Exhibit 7, to Motion, at 55; Exhibit 8.)

Petitioner filed the instant federal petition for writ of habeas corpus on March 30, 2008. (Court Doc. 1.)

Respondent filed the instant motion to dismiss on July 21, 2008. (Court Doc. 11.) Petitioner filed an opposition on August 14, 2008, and Respondent filed a reply on August 25, 2008. (Court Docs. 13, 14.)


A. Procedural Grounds for Motion to Dismiss

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases.

The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.

In this case, Respondent's motion to dismiss is based on a violation of 28 U.S.C. 2244(d)(1)'s one-year limitations period. Therefore, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.

B. Limitation Period for Filing a Petition for Writ of Habeas Corpus On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The instant petition was filed on March 30, 2008, and thus, it is subject to the provisions of the AEDPA.

The limitations period begins to run when "the factual predicate of the claim . . . could have been discovered through due diligence." 28 U.S.C. § 2244(d)(1)(D); Redd v. McGrath, 343 F.3d 1077, 1081 (9th Cir. 2003). Where, as in this instance, an administrative decision is challenged, the factual predicate is discovered when the inmate's administrative appeal of that decision is denied. Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004).

Title 28 U.S.C. § 2244(d)(2) states 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" the one year limitation period. 28 U.S.C. § 2244(d)(2). In Carey v. Saffold, the Supreme Court held the statute of limitations is tolled where a petitioner is properly pursuing post-conviction relief, and the period is tolled during the intervals between one state court's disposition of a habeas petition and the filing of a habeas petition at the next level of the state court system. 536 U.S. 214, 215 (2002); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 120 S.Ct. 1846 (2000).

Nevertheless, state petitions will only toll the one-year statute of limitations under § 2244(d)(2) if the state court explicitly states that the post-conviction petition was timely or was filed within a reasonable time under state law. Pace v. DiGuglielmo, 544 U.S. 408 (2005); Evans v. Chavis, 546 U.S. 189 (2006). Claims denied as untimely or determined by the federal courts to have been untimely in state court will not satisfy the requirements for statutory tolling. Id.

Statutory tolling is also available if a petitioner's overall untimeliness was caused by a state-action that violated the Constitution or federal law, and prevented the petitioner from filing. 28 U.S.C. § 2244(d)(1)(B); see also Bryant v. Schriro, 499 F.3d 1056, 1059-60 (9th Cir. 2007). In order for entitlement to statutory tolling, a petitioner must show (1) a state action that violated federal law or the Constitution, and (2) the action was the cause of his untimely filing. Bryant, 499 F.3d at 1059-1060.

The limitations period is subject to equitable tolling if 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. at 418; see also Irwin v. Department of Veteran Affairs, 498 U.S. 89, 96 (1990); Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 541 (9th Cir. 1998), citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996), cert denied, 522 U.S. 814 (1997). Petitioner bears the burden of alleging facts that would give rise to tolling. Pace, 544 U.S. at 418; Smith v. Duncan, 297 F.3d 809 (9th Cir.2002); Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir.1993). Equitable tolling is not available, despite extraordinary circumstances, where the petitioner has not otherwise been diligent in pursing his claims. Pace, 544 U.S. at 418-419.

Petitioner's administrative appeal was denied at the final level of review on April 11, 2005, and this date triggered the running of the one-year limitations period. (Exhibit 2.) Therefore, the statute of limitations was set to expire one-year later on April 11, 2006, and absent a basis for statutory or equitable tolling, the instant petition is untimely.

1. Delay Prior to Filing First State Petition for Writ of Habeas Corpus As previously stated, Petitioner's administrative review concluded on April 11, 2005, and the first state petition was not filed until April 23, 2006, 377 days after. Petitioner argues that he is entitled to both statutory and equitable tolling for this entire period of time because on December 1, 2004, prison Institutional Gang Investigators (IGI) confiscated and refused to return his paperwork relating to the challenge of his disciplinary action. (Opposition, at 3.) Petitioner indicates he immediately filed an administrative appeal requesting that his materials be returned to him. (Id. at 3, 13.)*fn2

As Respondent correctly submits, the response to Petitioner's inmate grievance flatly contradicts his claim. The response states that on November 2, 2004, IGI searched his property and confiscated one address book, twelve letters and two inmate cards. (Id. at 12.) On December 3, 2004, one address book, nineteen photographs and miscellaneous paper work was returned to the administrative segregation unit property, and as of January 5, 2005, all property was returned. (Id.) It was noted that all of the property allowable in administrative segregation had been provided to Petitioner. (Id. at 14.) It was further noted the IGI did not have possession of an "incident package dated 03/05/2004," and such document could not be returned to Petitioner. (Id.) Accordingly, Petitioner has failed to demonstrate that there was any illegal state action or extraordinary circumstance which prevented the timely filing of his federal petition, and tolling is not available.

Petitioner also contends that he is entitled to tolling based on his lack of knowledge of the institution's mail-room policy and his lay-man status. (Opposition, at 4-5.) Petitioner states that on December 22, 2005, he was transferred to California State Prison in Corcoran, and his property was immediately confiscated. Then on January 4, 2006, a limited amount of his property was returned and the remainder was mailed to his family's address, which included the necessary paperwork for filing a petition. On February 2006, he received the material back from his family and immediately began to draft his petition. After it was complete, he sent it to his father for formatting and typing, and it was returned to him in March 2006. However, prison staff returned the petition to his father indicating that it exceeded the two-pound weight limit on incoming mail. His father thereafter divided the petition into smaller/lighter portions and a complete copy of the petition was received by Petitioner on April 14, 2006.

Petitioner indicates that upon his arrival at Corcoran, he requested and reviewed a copy of the mail-room policy and it did not mention the two-pound limit for incoming mail. Petitioner contends that because he was unaware of the weight limit, he was delayed in receiving his petition back from his father. (Id. at 4-5.) In his inmate grievance, Petitioner requested "a copy of the rules regarding incoming mail . . . the limits on paper, stamps, envelopes, photos, etc. that we can receive." (Id. at 18.) In response to Petitioner's request, he was provided with information regarding the type of miscellaneous items he was allowed to possess and, as requested, the limits on the number of envelopes, cards, legal pads and notebooks, photos, stamps, and stationary. (Id. at 19-20.) Although, as Respondent submits, this was not a complete list of all the mail-room procedures, it was nonetheless a complete response to Petitioner's request.

In any event, as Respondent points out, Petitioner did not act diligently in filing his petition in the superior court, as he delayed 377 days, and the alleged one-month delay due to the returned mail was not the but-for cause of his federal petition being untimely. Bryant v. Schriro, 499 F.3d at 1061 (holding equitable tolling available only where petitioner shows untimeliness was caused by external impediment, and not petitioner's own lack of diligence); see also Gaston, 417 F.3d at 1034-1035 (holding petitioner must show causal connection between grounds upon which he asserts right to equitable tolling and inability to timely file federal habeas petition). Simply stated, Petitioner has not established he was diligently pursing his rights, and he is therefore not entitled to equitable tolling based on his alleged unawareness of the prison mail-room policy.

In addition, Petitioner's status as a lay-man and lack of legal knowledge does not entitle him to equitable tolling. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (a petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling); Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004) (petitioner's misunderstanding of proper procedures under state law for filing a certain motion did not warrant equitable tolling); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (ignorance of the law, including existence of the AEDPA, insufficient to warrant tolling); Felder v. Johnson, 204 F.3d 168, 171-172 & n.10 (5th Cir. 2000) (petitioner's unawareness of AEDPA's filing requirements insufficient to warrant equitable tolling).

2. Delay Between Denial by California Appellate Court and Filing in California Supreme Court

As previously stated, the California appellate court denied Petitioner's petition on August 24, 2006, and there was a 315-day gap between filing the petition in the California Supreme Court on July 5, 2007. Petitioner contends the delay was caused by his limited access to the law library, his inability to consult with another inmate for legal assistance, and the fact he was unable to purchase manilla envelopes. (Opposition, at 8-9.)

As Respondent submits, performing legal research, gathering exhibits, and drafting and mailing pleading naturally precede and are routine obstacles to filing a petition, and the time allotted to such tasks is simply not entitled to additional tolling because that time is inherently built into the one-year limitations period.

As Respondent correctly argues, the fact that Petitioner had to wait for a turn to use the law library during its hours of operation does not violate his federal constitutional rights or constitute an extraordinary circumstance. First, the Constitution does not guarantee a prisoner unlimited access to the law library, and prison officials are able to freely regulate the time, manner and place of the use of the library facility. Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 858 (9th Cir. 1985). Indeed, in Lewis v. Carey, 518 U.S. 343 (1996), the Supreme Court clarified that due process is not implicated with respect to access to the law library if the inmate has the basic ability of presenting his claims to the courts, regardless of the "capability of turning pages in a law library." Id. at 356-357. Thus, the fact that Petitioner had less access to the law library than desired, he was totally or substantially denied access during the time the limitations was running. Nor has Petitioner shown how he was prevented from filing the instant action in a timely manner merely because he access to the library was limited. As stated in Lewis, "prison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Lewis, 518 U.S. at 351 (internal quotations omitted).

In addition, the fact that Petitioner chose to deliver his paperwork to another inmate for assistance in drafting the petition, does not warrant tolling because such circumstance was wholly within his own control, and is not an extraordinary circumstance. Pennslyvania v. Finley, 481 U.S. 551, 557 (1987) (state not required to provide appointed counsel in state post-conviction proceedings); cf. Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (lack of legal assistance and reliance on incompetent jailhouse lawyers not cause to excuse procedural default); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (equitable tolling only available "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time."). In any event, as Respondent submits, even if the four to six week period that Petitioner contends staff prevented him from accessing another inmate for assistance were tolled, there was still over a six month gap, which Petitioner is not entitled to gap tolling. Chavis, 546 U.S. at 199-201.

Lastly, with regard to Petitioner's claim that the law library would not sell him manilla envelopes to mail his petition, it too does not entitle him to tolling. In fact, the evidence Petitioner submits does not support his claim. The prison response to Petitioner's complaint states that manilla envelopes are available for purchase in the library as long as the envelopes were addressed and mailed from the library, and the inmate may purchase as many envelopes as necessary, however, extra envelopes could not be purchased to take outside of the library. (Opposition, at 29-33.) Thus, contrary to Petitioner's claim, he has not shown that he was deprived of purchasing envelopes to mail his petition. Therefore, Petitioner has failed to establish that he is entitled to statutory or equitable tolling for the ten-month gap between filings.

3. Delay Between the Denial by the California Supreme Court and Filing Federal Petition in This Court

Petitioner further argues that he is entitled to statutory and equitable tolling for the 221-day delay between the denial by the California Supreme Court on August 22, 2007, to filing the instant federal petition on March 30, 2008, due to limited access to the law library including a twenty-two day library closure, a prison lockdown, his pursuit of legal assistance from another inmate, and library staff's error in his copying requests. (Opposition, at 8-10, 39-40.)

Although a lengthy law library closure may warrant tolling, the twenty-two day closure in this instance is too insubstantial for the delay of 221 days in filing the instant petition untimely. Furthermore, the fact that there was a prison lockdown also does not justify tolling, because such circumstance, although unfortunate, is a routine consequence of imprisonment. Moreover, Petitioner does not provide sufficient factual detail to support an inference that such lockdown was the but-for cause of his untimely filing.

In addition, Petitioner's inability to file the writ due to the failure of legal assistance is not sufficient, because prisoners in California are not entitled to legal assistance including inmate assistance, in collateral proceedings as a matter of right. Pennslyvania v. Finley, 481 U.S. at 557 (state not required to provide appointed counsel in state post-conviction proceedings); see also Miranda v. Castro, 292 F.3d 1063, 1067-68 (9th Cir. 2002) (denying equitable tolling for attorney negligence because there is no right to effective assistance of counsel for post-conviction relief.); cf. Hughes v. Idaho Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (lack of legal assistance is generally insufficient to justify cause for procedural default). Thus, the lack of inmate assistance does not constitute an "external force" that prevented Petitioner from filing a timely claim. See Miles v. Prunty, 187 F.3d at 1107 (equitable tolling only available "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.").

In sum, Petitioner has provided nothing more than vague and generalized assertions of the routine circumstances inmates face when attempting to file a petition for writ of habeas corpus in this Court, and such circumstances do not distinguish him from the vast majority of all other inmates; accordingly, tolling under such situations would render AEDPA's limitations period meaningful as the majority of inmates are likewise faced with the same problems. Petitioner has failed to demonstrate that "extraordinary circumstances" stood in his way of filing a timely federal petition. Accordingly, Respondent's motion to dismiss shall be granted.


Based on the foregoing, it is HEREBY ORDERED that:

1. Respondent's motion to dismiss is GRANTED; and,

2. The instant petition for writ of habeas corpus is DISMISSED, with prejudice, as time-barred under § 2244(d)(1).


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