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Eason v. Tilton


January 5, 2009


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



Petitioner, an inmate in a federal facility, has filed a petition challenging a state sentence, pursuant to 28 U.S.C. § 2254.*fn1 In his amended petition, petitioner, who pled guilty, on 7/24/03, challenges the imposition of an 11-year sentence imposed in Placer County Superior Court for a count of possession of cocaine base for sale, under Cal. Health & Safety Code § 11351.5 (five years), with sentence enhancements for two prior felony convictions, under Cal. Health & Safety Code § 11370.2(a) (three years each, six total). Amended Petition, p. 12;*fn2 respondent's Lodged Document 1.

Motion to Dismiss

Pending before the court is respondent's motion to dismiss the petition on grounds of failure to exhaust one claim and failure to file the petition timely. The court will first determine whether or not the petition has been timely filed under AEDPA before considering any question of a lack of exhaustion. Petitioner filed a putative motion to strike in response to the motion which this court will construe as petitioner's opposition thereto.

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.

As noted, petitioner pled guilty to possession of cocaine base for sale and admitted two prior felony convictions on 7/24/03. Lodged Document (Lod. Doc.) 1. Since petitioner did not appeal, his conviction became final 60 days later, on 9/22/03. See Cal. R. Ct. 8.308(a) (formerly Cal. R. Ct. 30.1). Unless one of the infrequently used trigger dates for the commencement of the limitations date is applicable, petitioner had one year to file a timely federal petition, or until 9/22/04.

28 U.S.C. § 2254(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 under this section. However, as respondent notes (Motion, p. 5), the filing of a state collateral action following expiration AEDPA limitations period cannot revive the limitations period or toll it under § 2254(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001).

This court applies the mailbox rule*fn3 in dating the filing of the two pro se state post-conviction habeas challenges. The first state court petition was filed in Placer County Superior Court on 4/12/07, and denied on 4/25/07. Lod. Docs. 2 & 3. Petitioner made three efforts to appeal the state superior court's petition denial in the state's Third District Court of Appeal, which were dismissed as being from a non-appealable order, on 6/07/07, 7/05/07 and 8/23/07, respectively. Lod. Docs. 6, 7, and 8. Petitioner filed a petition for review of a habeas petition in the California Supreme Court on 9/30/07, which was denied on 11/14/07. Lod. Docs. 4 & 5. Although this matter proceeds upon an amended petition, the court dates the filing of this matter from the filing date of the original petition, pursuant to the mailbox rule, rendering it filed as of 1/10/08 (notwithstanding the court docket filing dated 1/22/08). Because no state proceedings were initiated prior to the expiration of the statute of limitations, no statutory tolling is possible.

Petitioner's unavailing argument in opposition rests on his misguided belief that the AEDPA statute does not begin to run until all state court remedies have been exhausted, contending that, therefore, the one-year period began to run only as of 11/14/07. Opposition, p. 2. Petitioner then attempts to fault respondent for not reaching the merits. Petitioner simply has no cogent argument in opposition to the motion upon which the court could make a finding of timeliness under the applicable statute. The original petition, filed in this court on 1/10/08, was filed nearly three and one-half years beyond the statute of limitations, which expired on 9/22/04.

The court next considers whether petitioner is entitled to equitable tolling. A habeas petitioner bears the burden of proving that equitable tolling should apply to avoid dismissal of an untimely petition. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). The one year statute of limitations for filing a habeas petition may be equitably tolled "only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Id., at 1066 (internal quotation omitted [emphasis added in Miranda]). The prisoner must show that the "extraordinary circumstances" were the cause of his untimeliness. Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003). "'When 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).

In his opposition, petitioner does not even contend that any external force prevented him from filing his petition timely, particularly since he appears to believe, mistakenly, that he has filed his petition timely. However, petitioner's own misconception as to the appropriate commencement period for the running of the applicable statute does not entitled him to equitable tolling. Ignorance of the law does not constitute the requisite extraordinary circumstances. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)("We now join our sister circuits and hold that a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling") citing "Allen v. Yukins, 366 F.3d 396, 403 (6th Cir.2004) ('[T]his court has repeatedly held that ignorance of the law alone is not sufficient to warrant equitable tolling' []; United States v. Sosa, 364 F.3d 507, 512 (4th Cir.2004) ('[E]ven in the case of an unrepresented prisoner, ignorance of the law is not a basis for equitable tolling'); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.2000) ('[I]t is well established that ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing' []; Felder v. Johnson, 204 F.3d 168, 171-72 n. 10 (5th Cir.2000) ('Our conclusion that Felder's unawareness of AEDPA's requirements is insufficient to warrant tolling is also consistent with the determinations of other courts that have faced similar claims')." The court will recommend that respondent's motion to dismiss the amended petition on grounds of untimeliness be granted and therefore will not reach the contention that one of petitioner's claims is unexhausted.

Accordingly, IT IS ORDERED that:

1. The Clerk substitute James Tilton, Warden, as the named respondent in the docket of this action in place of the Attorney General for the State of California;

2. Petitioner's "motion to strike," filed on 5/30/08 (# 10), is construed as his opposition to respondent's motion to dismiss; to the extent that it is a separate motion, it is denied.

IT IS HEREBY RECOMMENDED that respondent's motion to dismiss, filed on 5/15/08 (# 8), be granted and the petition be dismissed as barred by the one-year AEDPA statute of limitations.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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