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McCoy v. Sisto

February 3, 2010

OWEN SYLVESTER MCCOY, PETITIONER,
v.
D.K. SISTO,*FN1 WARDEN, RESPONDENT.



ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This case is before the undersigned for all purposes pursuant to the parties' consent. See 28 U.S.C. § 636. Respondent moves to dismiss this action as untimely. Petitioner opposes, asserting that the statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") is unconstitutional and that he is entitled to equitable tolling. For the reasons explained below, the motion to dismiss must be granted.

I. Procedural History

Petitioner pled guilty to sodomy by use of force, forcible oral copulation, and two counts of forcible lewd acts on a child. Resp.'s Mot. to Dism., Docs. Lodg. in Supp. Thereof ("Lodg. Doc.") 1. On August 19, 2005 he was sentenced to twenty-one years in state prison. Id. He did not appeal his conviction.

Petitioner filed two state habeas petitions in the California Supreme Court. The first was filed on January 7, 2007*fn2 and was denied on June 13, 2007. Lodg. Docs. 2, 3. The second was filed on November 11, 2007 and was denied on April 30, 2008. Lodg. Docs. 4, 5. The instant petition was filed on May 18, 2008.

II. Constitutionality of Statute of Limitations

Petitioner argues that the one-year statute of limitations under AEDPA violates his first amendment right of access to the courts and is therefore unconstitutional. The court disagrees. Prisoners have a constitutional right of access to the court concerning their convictions. Lewis v. Casey, 518 U.S. 343, 350 (1996); see also Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) (finding that First Amendment right to petition government for redress of grievances includes right of access to courts). However, the right of access to the courts is limited to the initiation of a court action, and does not include the right to litigate effectively or successfully once in court. See Lewis, 518 U.S. at 354. While the AEDPA limitations period prevents some habeas petitions from succeeding, it does not prevent a prisoner, and did not prevent petitioner in this case, from timely filing a habeas action in federal court and having a meaningful opportunity to pursue it. Other courts that have addressed this issue have held that AEDPA does not violate prisoners' first amendment rights. See, e.g., Hill v. Dailey, 534 F. Supp.2d 746, 750 (E.D. Ky. 2008) ("[T]he Court holds that the statute of limitations codified at 28 U.S.C. § 2244(d)(1)(A) does not violate the Petition Clause of the First Amendment."). See also Lockett v. Day, 264 F.3d 1140 (5th Cir. 2001) (unpublished); Greer v. Berghuis, No. 2:07-CV-10873, 2007 WL 2984100 at *3 (E.D. Mich. October 12, 2007); Martinez Cedillo v. United States, No. CR 01-416, 2005 WL 2620515 at *3 (D.Or. October 7, 2005); Lamkin v. Cockrell, No. Civ. SA-08-CA-0436, 2003 WL 22244962 at *2 (W.D. Tex. Sept. 30, 2003); Sharp v. Cary, No. C 01-3625, 2002 WL 202375 at *3 (N.D. Cal. February 1, 2002). Placing a time limit on when the action must be initiated does not equate with a denial of all access to the courts. Accordingly, the AEDPA statute of limitations does not violate the First Amendment and applies to the instant petition.

III. Application of the Statute of Limitations

The one-year AEDPA limitations period 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).

There is no statutory tolling of the limitations period "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). However, once a petitioner properly files a state post-conviction application the period is tolled, 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 provide a basis for statutory tolling. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

The limitations period may also be equitably tolled where a habeas petitioner establishes two elements: (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). In light of this pronouncement, the Ninth Circuit has reiterated that the threshold necessary to trigger equitable tolling is very high, and clarified that equitable tolling only applies where a petitioner shows that despite diligently pursuing his rights, some external force caused the untimeliness. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009).

In this case, the statute of limitations began to run when petitioner's time for appealing his conviction expired, sixty days after he was sentenced on August 19, 2005. See 28 U.S.C. § 2244(d)(1)(A); Cal. R. Ct. 30.1.*fn3 The one-year limitations period began to run on the following day, that is, on October 19, 2005. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Thus, petitioner had until October 19, 2006 to file his federal habeas petition. He did not file the instant petition until May 18, 2008. Absent tolling, his application in this court is untimely.

Petitioner is not entitled to statutory tolling because he did not file his first state habeas petition until January 7, 2007, months after the limitations period had expired. Once the statute of limitations has expired, it cannot be revived by the filing of a state petition. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001). Accordingly, petitioner's two state petitions do not statutorily toll the limitations period.

Neither is petitioner entitled to equitable tolling. A prisoner is entitled to equitable tolling "only if extraordinary circumstances beyond [his] control make it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (citations omitted). Petitioner asserts that, as a sex offender, he has experienced extreme hardship in finding a knowledgeable prisoner to help him prepare his appeals without jeopardizing his physical safety. In addition, he asserts that he is mentally challenged, has psychological problems, and is obligated to take medication. Pet'r's Opp'n at 5-6.

Petitioner's difficulty in obtaining assistance from other inmates in preparing his petitions due to his sex offender status does not constitute an extraordinary circumstance beyond his control. Although petitioner is a pro se litigant, his ignorance of the law does not constitute an extraordinary circumstance that would warrant equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.2006) (holding that a pro se petitioner's "lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling"); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir.1986) (pro se prisoner's illiteracy and lack of knowledge of law unfortunate, but insufficient to establish cause). In addition, petitioner is not entitled to legal assistance in collateral proceedings, including assistance from other inmates. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (state not required to provide appointed counsel in state post-conviction proceedings); see also Lawrence v. Florida, 549 U.S. 327 (2007) (petitioner's mistake in miscalculating limitations period was not ...


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