FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner represented by counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondent's renewed motion to dismiss the pending habeas petition as untimely because petitioner is not entitled to equitable tolling of the applicable statute of limitations. Petitioner has filed his response to the motion and respondent has filed a reply.
On November 27, 2007, respondent first moved to dismiss the pending habeas as barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244. Therein, respondent argued that the pending petition was filed well-beyond the statutory period and that petitioner was entitled to neither statutory nor equitable tolling. Following a hearing on the motion, the court determined that because the statute of limitations for the filing of an application for federal habeas relief by petitioner began to run on October 13, 2004, and the pending petition was not filed until April 12, 2007, the petition was untimely unless petitioner was entitled to tolling. (Order filed Mar. 10, 2008, (Doc. No. 18) at 1-2.) The court also concluded that petitioner was not entitled to statutory tolling of the limitations period because his state habeas petitions had been denied as untimely. (Id. at 2-3) (citing Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) and Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir. 2005)). With respect to petitioner's argument that he was entitled to equitable tolling of the statute of limitations, the court noted that petitioner's counsel requested the opportunity to file a motion for an evidentiary hearing and to supplement the record. (Id. at 4.) Over respondent's objection, the court granted petitioner's request, noting the Ninth Circuit's frequent admonition to allow development of the record before making a determination of whether equitable tolling of the AEDPA statute of limitations is appropriate in cases involving a petitioner's mental condition or abilities. (Id.)
Thereafter, following the granting of extensions of time, on May 19, 2008, petitioner filed a motion for an evidentiary hearing. Respondent filed a non-opposition to the motion. Accordingly, on June 20, 2008, the court granted the motion for evidentiary hearing, denied respondent's motion to dismiss the petition without prejudice to its renewal and set the matter for evidentiary hearing. (Doc. No. 27.) The evidentiary hearing with respect to petitioner's claim of entitlement to equitable tolling of the statute of limitations was conducted on October 21, 2008. At that time the court heard testimony from Dr. Laura Doty, a psychologist, and Charles Eyster, the defense attorney who represented petitioner in his state trial court proceedings. In addition, a number of exhibits were introduced into evidence for the court's consideration.
Following the hearing, respondent filed a renewed motion to dismiss the petition as time-barred, arguing that petitioner had not presented evidence establishing that equitable tolling of the statute of limitations was appropriate in this case. (Doc. No. 46.) Counsel for petitioner filed an opposition to the motion. (Doc. No. 48.) Respondent has filed a reply. (Doc. No. 49.) For the reasons set forth below, the court concludes that petitioner has not satisfied his burden of establishing that he has pursued his rights diligently and that extraordinary circumstances beyond his control prevented him and his counsel from timely filing his federal habeas petition.
THE ARGUMENTS OF THE PARTIES
I. Respondent's Motion to Dismiss
Respondent asserts that the one-year statute of limitations applicable to petitioner's application for federal habeas relief began to run on October 13, 2004 but that petitioner did not file his petition in this court until April 12, 2007. (Renewed Mot. to Dismiss (Doc. No. 46) (hereinafter MTD) at 6.) Respondent notes that the court has previously determined that petitioner is not entitled to statutory tolling and that the pending petition is time-barred unless petitioner is entitled to equitable tolling for a sufficient period of time so as to render his petition timely. (Id.)
Respondent suggests that in order to obtain equitable tolling based upon his mental condition, petitioner must establish that he was mentally incompetent to stand trial during the relevant time period under the standard announced in Dusky v. United States, 362 U.S. 402 (1960). (Id. at 7.) Respondent contends that petitioner's assertion that he suffered from developmental delay does not meet that demanding standard. (Id.) Respondent also points out that none of the five attorneys who represented petitioner during his criminal trial, appeal, and habeas proceedings, ever claimed that petitioner was mentally incompetent. (Id.) In fact, according to respondent, during a hearing on petitioner's motion to withdraw his guilty plea before the trial court, his Deputy Public Defender specifically argued that petitioner was competent to stand trial in urging the court to grant the motion. (Id.) In addition, respondent contends that petitioner's trial attorney, Charles Eyster, essentially testified at the evidentiary hearing before this court that petitioner was competent during the time of his representation. (Id.)
Respondent asserts that there is no evidence before this court that petitioner, at age eighteen when the statute of limitations for the filing of a federal habeas petition began to run, was incapable of using the court's form habeas petition and writing down the facts that explained why he believed his conviction was improperly obtained. (Id. at 7-8.) Respondent argues that, in contrast, there is substantial evidence before the court that petitioner could have filed a timely federal habeas petition if he had acted diligently. (Id. at 8.) In this regard, respondent notes that California Welfare and Institutions Code § 4512 defines "developmental disability" as a disability which originates before the age of eighteen and can continue indefinitely. (Id.) Respondent argues that petitioner's alleged "developmental delay" condition would be expected to be a constant over time and yet audio recordings and videotapes of petitioner's interviews by police in 2001 and petitioner's own testimony at the hearing on his motion to withdraw his guilty plea, reflect that petitioner can both understand questions and legal concepts and effectively communicate. (Id.) Respondent asserts that the evidence before this court indicating that petitioner does not suffer from a mental condition that prevented him from timely seeking federal habeas relief includes: his factual statement explaining and describing the crimes underlying his juvenile court adjudication in 2000; his letters to his current attorney written from 2006-08; a California Department of Corrections report in March 2003 describing petitioner as having "high cognitive test scores" and as not requiring an "adaptive functioning evaluation;" his adult basic education test scores from 2003-06 demonstrating his progressive educational proficiency; and his total grade point level of 9.9 as of March 2006. (Id. at 8-9.)
Respondent contends that although petitioner was capable of using the court's form habeas petition to challenge his conviction in federal court he chose not to do so, apparently preferring to have an attorney file his petitions instead. (Id.) Respondent argues that petitioner has no right to counsel in these habeas proceedings and by choosing to have counsel seek habeas relief on his behalf, petitioner must bear the consequences if his counsel was mistaken and/or negligent in his advice and performance in connection with those filings. (Id. at 9-10.)
As to the opinions expressed by psychologist Laura Doty in her testimony at the evidentiary hearing, respondent argues that Dr. Doty's assessments of petitioner in 2001 and 2003 did not address petitioner's mental competency between October 13, 2004 and April 12, 2007 when the AEDPA statute of limitations was running. (Id. at 12.) Moreover, according to respondent, Dr. Doty's opinion does not establish that petitioner could not have met the standard for mental competency to proceed to trial during time period critical to the issue of equitable tolling. (Id.) Respondent notes that Dr. Doty's 2006 psychological report does not even establish that petitioner suffered from a developmental delay at that time. (Id.) In this regard, respondent contends that even in November 2000, less than one year before petitioner committed his crimes of conviction, neither Dr. Doty nor an examining psychiatrist found petitioner to be developmentally delayed. (Id.)*fn1
Lastly, respondent repeats the argument that petitioner is not entitled to equitable tolling of the AEDPA statute of limitations based on any alleged negligence by his current counsel in failing ...