The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED AND DENYING PETITION FOR WRIT OF HABEAS CORPUS Doc. No. 15
Ernest J. Brooks, III ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in January 2008. Petitioner challenges the state court sexual molestation convictions for which he is incarcerated, arguing the trial court violated his right to a fair trial by improperly admitting evidence of prior, similar acts. (Doc. No. 1 at 6-23.) Respondent, warden of the detention facility where Petitioner is incarcerated, filed a response (Doc. No. 9) and Petitioner filed a traverse (Doc. No. 14).
On November 12, 2008, Magistrate Judge Barbara L. Major issued a Report and Recommendations ("R&R") in which she advised the court to deny Petitioner's § 2254 petition as well as his requests for an evidentiary hearing and appointment of counsel. (Doc. No. 15.) Petitioner was granted several extensions of time in which to file his objections and did so on March 2, 2009, nunc pro tunc. (Doc. No. 28.)
Having carefully considered the thorough and thoughtful R&R, the record before the court, Petitioner's objections, and the applicable authorities, the court ADOPTS the R&R AS MODIFIED HEREIN.
The court reviews a magistrate judge's R&R according to the standards set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636. The court "shall make a de novo determination of those portions of the report . . . to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 673-74 (1980).
The court hereby incorporates by reference the Factual and Procedural Background presented in the R&R with two clarifications. (Doc. No. 15 at 2-4.) The R&R cites January 1, 2007 as the date the California Supreme Court denied Petitioner's habeas petition, but the ruling issued on January 17, 2007. (Lodg. 12.) In addition, while Petitioner's federal petition was received by the court on January 22, 2008, as discussed below, it appears to have been filed on January 17, 2008. (Doc. No. 1 at 12.)
A. Statute of Limitations
The R&R concludes the instant petition is time-barred by the AEDPA's one-year statute of limitations. See 28 U.S.C. § 2244(d). In particular, the R&R finds 386 days lapsed between the conclusion of Petitioner's state proceedings and the filing of his federal petition. (R&R at 7.) Further, even with statutory tolling during Petitioner's state court efforts, the R&R determines Petitioner's lengthy delays between successive state court filings were presumptively unreasonable and added another 301 days to the elapsed time. (R&R at 9.) Finally, the R&R finds Petitioner is not entitled to equitable tolling. (R&R at 10.) Based on the analysis in the R&R, Petitioner exceeded the statute of limitations by 322 days.
As mentioned above, the final state court decision in Petitioner's case actually issued on January 17, 2007. While the R&R notes the federal petition was filed January 22, 2008, Petitioner may be entitled to an earlier filing date based on the "prison mailbox rule." Houston v. Lack, 487 U.S. 266, 276 (1988); Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2000), cert. granted, 534 U.S. 971 (2001)(holding the prison mailbox rule applies to prisoners filing habeas petitions in both federal and state courts). In his petition, signed under penalty of perjury, Petitioner asserts he mailed the petition to this court (or handed it to a corrections officer for that purpose) on January 17, 2008. (Doc. No. 1 at 12.) Absent evidence to the contrary, the court adopts January 17, 2008 as the operative filing date. Houston, 487 U.S. at 276 (holding a prisoner's notice of appeal is deemed "filed at the time [he] deliver[s] it to the prison authorities for forwarding to the court clerk"). Therefore, the elapsed time between the final state court denial and Petitioner's federal habeas filing was 365 days. The court hereby adopts the conclusions of the R&R with respect to the calculation of statutory tolling. (R&R at 9.) On this analysis, the court finds Petitioner exceeded the allowed statute of limitations by 301 days rather than 321 days.
To satisfy the AEDPA statute of limitations, then, Petitioner must show he is entitled to equitable tolling for at least 301 days. Petitioner was put on notice of the statute of limitations issue, both by the court at the outset of this case (Doc. No. 2) and by Respondent in addressing the petition's merits (Doc. No. 9 at 4 n.3). Petitioner made no attempt to explain the delays until he filed objections to the R&R. Petitioner now argues he is entitled to equitable tolling for the lengthy delays between each step in his state court habeas process and between his final state court denial and his federal filing. (Doc. No. 28 at 4-7.) The court generally does not address factual arguments presented for the first time in objections, but may do so under unusual circumstances. Brown v. Roe, 279 F.3d 742 (9th Cir. 2002)(abuse of discretion for court not to consider equitable tolling argument raised for first time in objections to R&R where pro se prisoner was illiterate and raising relatively novel claim under relatively new statute). While the present circumstances do not rise to the level as in Brown, the court evaluates Petitioner's equitable tolling plea and finds it unpersuasive.
The court reiterates, equitable tolling is "unavailable in most cases," Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), but is appropriate where a habeas petitioner demonstrates "he has been pursuing his rights diligently, and...some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Furthermore, Petitioner must show the "extraordinary circumstances" he has identified, rather than merely a lack of diligence on his part, were the proximate cause of his untimeliness. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003); Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003).
Petitioner argues the delay in filing his habeas petition to the state appellate court (June 4, 2004 to June 3, 2005) was caused by the difficulties he faced obtaining school records addressing the credibility of one victim and declarations from other witnesses who were not called by his trial counsel. (Doc. No. 28 at 4.) Petitioner also contends his appellate attorney took seven months ...