FINDINGS AND RECOMMENDATIONS
I. Introduction and Background
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner seeks to challenge his 1985 voluntary manslaughter conviction entered in Amador County pursuant to a plea of guilty.
On April 16, 2007, this court issued an order to show cause why the petition should not be dismissed as untimely under the one year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. §2244(d). Petitioner's May 16, 2007 response and February 22, 2008 supplemental response are before the court.
Before the statute of limitations issue was resolved, another potential problem with the pending petition became apparent. In order for this court to have jurisdiction over this matter, petitioner must be challenging a judgment for which his is in custody. 28 U.S.C. § 2241(c)(3); § 2254(a). Petitioner had not alleged that he was still in custody pursuant to the challenged 1985 Amador County conviction. Rather, it appeared that the sentence for the 1985 Amador County conviction had expired but that he was nevertheless in custody on a subsequent, unrelated 1987 conviction Santa Cruz County.
On December 16, 2009, respondents were ordered to file a brief statement addressing the issue of whether this court has jurisdiction over the claims presented in the pending petition. Their January 15, 2010 response is before the court. The documents attached to the response indicate that the sentence for petitioner's 1987 conviction was imposed consecutively to the sentence for his 1985 conviction. Pursuant to the holding of the United States Supreme Court in Garlotte v. Fordice, petitioner's two consecutive sentences must be viewed as a "continuous stream" and he remains in custody under both sentences until both are served. 515 U.S. 39, 41 (1995); see also Allen v. State of Oregon, 153 F.3d 1046, 1048 (9th Cir. 1998). Petitioner is still "in custody" for his 1985 conviction and this court is assured of its jurisdiction over the pending petition.
II. Statute of Limitations
In any event, however, the petition is untimely. The Anti-terrorism and Effective Death Penalty Act ("AEDPA") became law on April 24, 1996 and imposed for the first time a one year statute of limitations for state prisoners to file habeas corpus petitions in federal court.
28 U.S.C. § 2244(d). Although the statute of limitations issue is not jurisdictional, a district court has the authority to raise the issue sua sponte, even after the initial screening stage. Day v. McDonough, 547 U.S. 198, 209 (2006). In an order dated April 16, 2007, the pending petition was deemed untimely under the applicable one year statute of limitations and petitioner was ordered to show cause why it should not be dismissed. As previously noted, his May 16, 2007 response and February 22, 2008 supplemental response are before the court.
As directed, petitioner has addressed the specific circumstances for which he contends that equitable tolling is warranted. Petitioner contends that he is entitled to equitable tolling because of two specific circumstances: (1) he was separated from all of his legal materials during a temporary housing transfer which lasted for two years, and (2) he never received transcripts and other desired documentation relating to the 1985 conviction.
"[E]quitable tolling is unavailable in most cases." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). The Ninth Circuit has held that equitable tolling of the filing deadline for a habeas petition is only available if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quotations and citation omitted). This determination is highly fact-dependent, and petitioner bears the burden to show that equitable tolling is warranted. Espinoza-Matthews v. People of the State of California, 432 F.3d 1021, 1026 (9th Cir. 2005). In Pace v. DiGuglielmo, the Supreme Court held that in order to meet the burden for equitable tolling, a petitioner must demonstrate "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." 544 U.S. 408, 418 (2005).*fn1
In Lott v. Mueller, the Ninth Circuit found that a petitioner's deprivation of legal materials for 82 days due to temporary housing transfers was an "extraordinary circumstance" sufficient to warrant equitable tolling for that time period. 304 F.3d 918, 924 (9th Cir. 2002). Similarly, equitable tolling has been applied where a petitioner demonstrated that, despite due diligence, he had no access to his legal materials for approximately 11 months while he was housed in administrative segregation. Espinoza-Matthews, 432 F.3d at 1027 ("After his release from Ad/Seg, Espinoza-Matthews had only slightly over a month with his legal file to try to prepare a proper petition. Under those circumstances Espinoza-Matthews is entitled to equitable tolling.")
Citing the above cases, petitioner contends that he was separated from his legal materials relating to the Amador County conviction for an even longer time, a full two years beginning in May of 1985 when he was transferred to the Santa Cruz County Jail to await trial on an unrelated matter. During this period of time, however, the AEDPA's limitation period had not begun to run since it had not yet been enacted. See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997) (rejecting retroactive application of AEDPA's one year statute of limitations, which became law on April 24, 1996), overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999). Thus equitable tolling cannot be applied for the first circumstance alleged by petitioner.
Petitioner's second contention in support of equitable tolling is that he was never given transcripts of either his pre-trial hearings, the trial, or the post-trial hearings pertaining to the Amador County homicide case. To this very day, 22 years later, Petitioner has been unable to acquire them. The only documents related to the Amador County case that Petitioner was ever able to acquire were a handful of police reports and interviews. It was only due to the tireless investigative efforts of Petitioner's adult son Jerad Clinton Taylor, over the past year, that enough of the police reports and interviews were obtained to put together the instant federal habeas corpus petition, memorandum of points and authorities, and supporting exhibits. (Pet. Resp. at 2.)
In Ford v. Hubbard, the Ninth Circuit specifically declined to decide whether "an attorney's failure or refusal to provide a habeas client with important parts of his legal file may rise to the level of 'extraordinary circumstances' for purposes of equitable tolling." 330 F.3d 1086, 1107 (9th Cir. 2003), cert. granted and overruled on other grounds in Pliler v. Ford, 124 S.Ct. 981 (Jan. 9, 2004). In another, previous case, it was noted that a habeas petitioner could potentially be entitled to equitable tolling if he could show that lack of access to transcripts was an extraordinary circumstance that made it impossible to file on time. 362 ...