ORDER AND FINDINGS AND RECOMMENDATIONS
I . Procedural Background
On September 16, 1999, petitioner was convicted in San Joaquin County of a number of violations of California Penal Code §§ 288(a), 261.5, 289(a) and 289(h). CT 325-327.*fn1
On January 13, 2000, the court denied the motion for a new trial and sentenced petitioner to a total term of twenty-five years. CT 681-682; RT 1213. He filed a timely notice of appeal on January 18, 2000 and on February 28, 2000, the Court of Appeal appointed Attorney Eric Weaver to represent him. See Docket, People v. Tibbs, Case No. C034726 (Cal. 3rd Ct. App.);*fn2 Resp't's Lodg. Doc. (Order Appointing Counsel).*fn3 However on April 28, 2000, retained counsel George Robertson was substituted in as counsel of record. Docket, People v. Tibbs, Case No. C034726 (Cal. 3rd Ct. App.); Resp't's Lodg. Doc. (Substitution & Order).
The Court of Appeal affirmed petitioner's convictions in an opinion filed June 14, 2001. Motion to Dismiss (Docket Nos. 8-1 & 8-2) (MTD) at E1-9; Lodg. Doc. (Court of Appeal Opinion). Through counsel, petitioner filed a petition for review in the California Supreme Court; this was denied on September 26, 2001. MTD at E10-11; Resp't's Lodg. Doc. (Petition for Review).
On May 8, 2003, Robertson filed a petition for a writ of habeas corpus in the Court of Appeal; it was denied the same day with a citation to In re Hillery, 202 Cal.App.2d 293 (1962) (declining jurisdiction in favor of the superior court). Docket, In re Neal John Tibbs on Habeas Corpus, Petition No. C043949 (Cal. 3rd Ct. App.);*fn4 MTD at E13-14.
On May 20, 2003, Robertson filed a habeas petition in San Joaquin County Superior Court. Resp't's Lodg. Doc. (Writ Petition). This was denied on June 30, 2003. MTD at E17-21; Resp't's Lodg. Doc. (Order). Robertson returned to the Court of Appeal on September 17, 2003. After soliciting an informal response from the People, the Court of Appeal denied that petition on January 29, 2004. MTD at E23-25; Resp't's Lodg. Doc. (Orders).
On May 24, 2004, petitioner filed a habeas petition in the California Supreme Court in propria persona. MTD E27-29. This was denied on July 13, 2005. Id.
The instant petition was filed November 18, 2005.
On June 28, 2006, respondent filed a motion to dismiss, arguing that this action was filed outside the statute of limitations. In his opposition, petitioner argued that he relied on Attorney Robertson to act in a timely fashion; that Robertson continually assured petitioner and his family that there were no deadlines; that Robertson did not send petitioner his transcripts, which would have enabled petitioner to pursue habeas relief on his own. Opposition (Opp'n) (Docket No. 11) at 3-8. In reply, respondent offered the 2003 declaration petitioner had filed in support of his superior court writ, in which he averrred he instructed his attorney not to send him copies of any of the records in the case because of the danger from other inmates should they learn of the nature of his charges. Reply (Docket No. 12-2) at 11 ¶ 16. Petitioner submitted a surreply, averring he had not had time to read the declaration, which Robertson had presented for his signature just as visiting hours were ending. He conceded, however, that his life would have been in danger had he been in possession of his legal papers before his transfer to the "Sensitive Needs Yard" in April 2002. Surreply (Docket No. 13) at 3-4, ¶¶ 2, 3. Petitioner asserts he asked for his records after his transfer, but that Robertson refused to comply and told petitioner, his wife and his sister there was nothing to be concerned about. Id. ¶ 4.
II. The Statute Of Limitation And Tolling Principles
One of the changes the Antiterrorism and Effective Death Penalty Act (AEDPA) made to the habeas statutes was to add a statute of limitations for filing a habeas petition:
(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.
(2) 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 subsection.
A conviction is final for purposes of the AEDPA statute of limitations at the expiration of the ninety day period for seeking certiorari, Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999)
The statute of limitations is tolled during the pendency of any "properly filed" state collateral attack on the judgment. Nino v. Galaza, 183 F.3d 1003, 1006-07 (9th Cir. 1999). However, a state petition filed after the limitations period has run will neither revive nor toll the statute of limitations. Jimenez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).
The parties do not dispute the fact that the AEDPA statute of limitations expired on December 27, 2002, and was not revived by the habeas petitions Robertson filed in 2003. Appointed counsel for petitioner argues, however, that petitioner is entitled to equitable tolling because of petitioner's low intellectual functioning and passivity and because of Robertson's malfeasance. It is petitioner's burden to show he is entitled to equitable tolling. Espinoza-Matthews v. People of the State of California, 432 F.3d 1021, 1026 (9th Cir. 2005). To meet this burden, he must demonstrate "(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. 408, 418 (2005). Equitable tolling is justified in few cases, and "the threshold necessary to trigger equitable tolling under the AEDPA is very high, lest the exceptions swallow the rule." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (internal citation, quotation omitted). Phrased another way, a habeas petitioner may be entitled to equitable tolling if circumstances beyond his control make it impossible for him to file his petition on time. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).
Psychologist Laura Geiger, Ph.D., met with petitioner on September 26, 2007 and evaluated him by administering a number of psychological tests, reviewing his school records and his medical records from California Department of Corrections and Rehabilitation (CDCR), taking a history from him, and generally observing him as he answered questions and completed the tests. EH*fn5 7. She explained that the results of the tests would not be confidential, which he appeared to understand after she reviewed it with him three times, modifying the language of her explanation for clarity. EH 32.
In Dr. Geiger's opinion, petitioner would have difficulty preparing and filing a timely habeas petition:
[I]t would be extremely difficult, if not impossible for someone who is--you think of a typical seventh grader, which is the level, the highest level I believe he's functioning with regard to reading. . ., I don't see him being able to do that. It's a very low probability he would be able to complete that.
EH 26. On cross-examination, she elaborated that petitioner would have a hard time, an extremely difficult time, collecting himself, organizing himself, and understanding the procedures that he would sequentially have to follow in order to complete that sort of complex. . . task.
EH 64. She conceded, "I'm not saying he couldn't do it," but observed that "he doesn't have . . . the intellectual capability and achievement level of functioning to be able to do one, and in a way that would be the best representation of himself." EH 67-68.
She found support for these conclusions in the results of tests, her review of the record, and her personal observations. One battery of tests showed petitioner to be reading between the fifth and seventh grade level and spelling at the fifth grade level; from this Dr. Geiger opined that petitioner "functions in a low average fashion with regard to his reading ability and level of verbal comprehension" and has basic difficulties in understanding information conveyed orally and in writing. EH 8-9, 38. Dr. Geiger also opined that petitioner would not be able to read and comprehend complex documents without assistance and would be able to prepare written product only at a fifth grade level. EH 27.
Dr. Geiger's conclusions about petitioner's ability to comprehend were buttressed by two things. First, Dr. Geiger later reviewed petitioner's school records from kindergarten through eighth grade; these showed he had been held back in the first grade and he had well below average scores on standardized tests administered in school. EH 13-14, 31. These data were consonant with the results of the IQ tests she administered, which showed that petitioner's verbal comprehension was at the 18th percentile, although his non-verbal performance on the tests was significantly higher. EH 10-11. The wide gap and petitioner's tremors suggested brain damage. EH 12-13.
Petitioner told Dr. Geiger he had been diagnosed as having had some mini-strokes. EH 21. Dr. Geiger believed the report to be valid because of petitioner's tremors, but conceded the medical records she had been provided did not include any diagnosis or other report of such episodes. EH 21, 32, 55. Petitioner also reported some blows to the head, including one involving a loss of consciousness. EH 21-22. Once again, even though this was not described in the medical records, Dr. Geiger's observations of petitioner and "how he responded on some of the testing," supported the notion that there had been some sort of head trauma. EH 34, 73. As a result, Dr. Geiger recommended, but did not perform, further neuropsychological evaluation. EH 22. Nevertheless, the general screening test for neuropsychological dysfunction showed petitioner's "gross organic functioning is intact." EH 13.
The medical records Dr. Geiger did receive showed that petitioner had been diagnosed with a major depressive disorder, which could have affected his ability to concentrate. EH 15. She believed petitioner was "mildly depressed and anxious" when she evaluated him. EH 16.
In addition, petitioner's score on the Personality Assessment Inventory suggested "this is not going to be a person taking the initiative to get things done" and who would subordinate his needs to others. EH 23-24. He would be "more likely than not to hold his tongue." EH 50.*fn6
Dr. Geiger acknowledged that petitioner got his GED in 2003 while in prison; she could not explain how that meshed with her findings. EH 8-9. Petitioner explained that Mr. Johnson, a teacher in the prison, worked with petitioner on pre-GED tests, which petitioner took three times. ER 192-193. After that, Mr. Johnson felt petitioner was ready for the test, which he passed on his first attempt. EH 193. In addition, petitioner learned to use a dictionary once he started working in ...