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Hellon v. Felker

March 12, 2009

JOSHUA MOSES HELLON, PETITIONER,
v.
T. FELKER, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This action proceeds on the August 29, 2007, petition. Respondents move to dismiss this action upon the ground it is untimely. For the reasons explained below, the court finds that respondents' motion must be denied.

I. Procedural History

On November 19, 2003, petitioner was convicted of possessing precursors to methamphetamine with the intent to manufacture and evading an officer.*fn1 Resps.' Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc."), 1, at 14. He appealed, and the judgment was affirmed. Lodg. Doc 2. Petitioner sought review in the California Supreme Court, which was denied on August 10, 2005. Lodg. Doc. 3. Petitioner had some difficulty in the process of seeking state post-conviction review and it is the period of time it took him to overcome that difficulty that forms the issue raised on this motion; i.e. whether there was an unexplained or unjustified period of unreasonable delay in applying to the state appellate court for habeas relief.

On June 1, 2006, petitioner filed an application for a writ of habeas corpus in the trial court.*fn2 Lodg. Doc. 4, at 1. That court found that petitioner failed to state a prima facie case for relief and denied the writ on June 13, 2006. Id., at 92. On July 21, 2006, petitioner submitted to the appellate court a habeas petition. This petition would have been timely. However, in the title to that petition the petitioner erroneously referred to the appellate court as the supreme court. Pet'r Opp'n, at 2 & Exh. B. This is the point at which petitioner's efforts to timely pursue state habeas relief became derailed.

Two days later, on July 23, 2006, petitioner was placed in administrative segregation on a charge of drug possession, and his personal property--including his legal papers--were confiscated. Pet'r Opp'n, at 2 & Exh. A; Resps.' Reply, Exh. A. The next day, on July 24, 2006, the state appellate court mailed his habeas petition back to him, apparently because it had the wrong name of the court in the title. Pet'r Opp'n, at 1 & Exh. C.

On August 16, 2006, while he was still in administrative segregation, petitioner requested that his legal materials be returned to him. Resps.' Reply, Exh. B. They were not. Respondents have submitted evidence that prison officials attempted to provide these materials, but the papers were not in the envelopes where they should have been. Id. It is not clear when, but petitioner wrote to the appellate court for guidance about when to file a habeas petition. Pet'r Opp'n, Exh. D. In an August 23, 2006, letter to petitioner, the court declined to give legal advice, but sent to him a blank form petition for a writ of habeas corpus. Id. Around August 25, 2006, petitioner received from the trial court a copy of the habeas petition he had filed there. Pet'r Opp'n, Exh. D-1. At some point, although the date is not clear from the record, petitioner had filed a grievance about his legal material, as evidenced by prison staff having rejected such an appeal on September 12, 2006.*fn3 Resps.' Reply, Exh. C.

Petitioner finally filed a habeas petition in the appellate court on September 28, 2006. Lodg. Doc. 5, at 1. This petition was nearly identical to the one filed in the trial court, the only difference being that petitioner added a claim that appellate counsel was ineffective. He explained the delay in filing by asserting that he was housed in a maximum security prison and that prison lockdowns and his employment had limited his access to the law library. Lodg. Doc. 5, at 10. He explained that his work hours usually preempted his ability to gain access to the law library, especially in light of the number of prisoners seeking such access. Id., at 11. On October 19, 2006, the appellate court denied relief without explanation or citation. Id., at 108.

On October 31, 2006, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. Lodg. Doc. 6, at 1. It was identical to the petition he filed in the appellate court. On May 9, 2007, the California Supreme Court denied relief. Id., at 27.*fn4

On May 15, 2007, petitioner wrote a letter to this court, explaining that the time for filing a federal habeas soon would expire but he was having difficulty gaining access to his legal materials because he was in administrative segregation, where he had been housed since July 23, 2006. Pet'r Opp'n, at 2.

Petitioner was released from administrative segregation on July 9, 2007. Id. He sought an extension of time to file his federal petition. Resps.' Reply, Exh. D. Since no federal petition was pending and petitioner essentially sought an order extending the limitations period, on July 11, 2007, this court denied the request and directed the clerk of the court to close the case. Resps.' Reply, Exh. E; Pet'r Opp'n, Exh. F. Petitioner persisted, filing two more requests for extensions of time in this court, one on June 6, 2007, and the other on July 11, 2007. Resps.' Reply, Exhs. F, G.

On August 29, 2007, petitioner filed his federal application for a writ of habeas corpus.

II. The Statute of Limitations

A one-year limitation period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). The judgment on direct review becomes final when the 90-day limit for filing a petition for certiorari expires. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The period 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 period is tolled once a petitioner properly files a state post conviction application, and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). "[A]n application is properly filed when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). A federal habeas application does not toll the limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

A court may grant equitable tolling when "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Calderon v. United States District Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th ...


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