The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are the Motion to Dismiss Petition for Writ of Habeas Corpus (Doc. # 12) filed by Respondent Larry Smalls and the Report and Recommendation (Doc. # 19) filed by Magistrate Judge Louisa S. Porter.
On May 7, 2009, Petitioner, a state prisoner proceeding pro se, initiated this action by filing the Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. (Doc. # 1). The Petition challenges Petitioner's September 12, 1997 conviction for first-degree murder and personal use of a firearm. (Lodgement 1 at 1). The Petition alleges that Petitioner received ineffective assistance of trial counsel, that Petitioner received ineffective assistance of appellate counsel, and that the California Supreme Court erred in denying Petitioner's state petition as untimely. Id. Petitioner's ineffective assistance of trial counsel claim stems from the performance of appointed counsel at trial after Petitioner's original retained counsel was himself incarcerated. Id. Along with the Petition, Petitioner filed a Motion for Leave to Proceed in Forma Pauperis (Doc. # 2) and a Motion to Stay (Doc. # 3). On May 20, 2009, the Court granted Petitioner's application to proceed in forma pauperis, denied Petitioner's Motion for a Stay and Abeyance, and ordered Respondent to file a response to the Petition. (Doc. # 7).
On August 4, 2009, Respondent filed the Motion to Dismiss Petition for Writ of Habeas Corpus. (Doc. # 12). Respondent contends that the Petition was untimely because it was filed more than one year after Petitioner's conviction became final. Id. at 7. Respondent contends that Petitioner's conviction became final on October 12, 1999. Id. at 10. Respondent contends that Petitioner is not entitled to equitable tolling because he has failed to establish that evidence he asserts was newly discovered could not have been discovered earlier through due diligence. Id. Respondent contends Petitioner has conceded he was aware of "the potential for presenting a defense at trial based on imperfect self-defense" before his trial took place. Id. at 12. Respondent contends equitable tolling in habeas cases "does not extend to what are, at best, 'garden variety' contentions of excusable neglect." Id. at 14.
On August 27, 2009, Petitioner filed a Response in Opposition to the Motion to Dismiss. (Doc. # 16). Petitioner contends that he did file within the statute of limitations and that he is entitled to equitable tolling. Id. at 2, 10, 12. Petitioner contends that he is entitled to equitable tolling because he lacks legal sophistication and because he had no contact with his appellate counsel. Id. at 7. Petitioner contends that the statute of limitations did not start running until he learned of the ineffective assistance of trial counsel. Id. at 10. Petitioner concedes he was aware of the imperfect self-defense evidence before trial, but was unable to convince his trial attorney to present the defense at trial. Id. at 9. Petitioner contends that "the clock should be restarted to June 4, 2007, the date on which petitioner received the actual document which enables him to file this Petition for Writ of Habeas Corpus. Id. at 10. Petitioner contends he was diligent in attempting to contact his original trial counsel who would have evidence about his ineffective assistance of counsel claim, but was unable to do so until June 4, 2007. Id. at 12.
Respondent did not file a reply.
On February 10, 2009, Magistrate Judge Porter issued the Report and Recommendation ("R&R") which recommends that the motion be granted. (Doc. # 19). The R&R concluded that Petitioner's conviction became final on October 12, 1999. Id. at 3. The R&R concluded that, "absent tolling, Petitioner had until October 12, 2000 to file a timely habeas petition. However, Petitioner did not file the instant petition until May 7, 2009." Id. The R&R concluded that neither statutory tolling for "newly discovered evidence" nor equitable tolling render the petition timely. Id. at 4.
The R&R concluded that newly discovered evidence does not justify statutory tolling pursuant to 28 U.S.C. § 2244(d)(1)(D) because "Petitioner knew, or should have known, of all facts supporting his claim of ineffective assistance of trial counsel" at the time of trial. Id. at 6. The R&R concluded that Plaintiff is not entitled to statutory tolling because petitioners do "not need 'to understand the legal significance of facts-rather than simply the facts themselves-before the due diligence (and hence the limitations) clock started ticking.'" Id. (citing Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001)). The R&R concluded that even if Petitioner did not realize "that trial counsel's failure to present a theory of self-defense constituted ineffective assistance of counsel, the Court cannot reset the statute of limitations." Id. at 6-7.
The R&R concluded that Petitioner is not entitled to equitable tolling because he has not established that "'extraordinary circumstances beyond [his] control [made] it impossible to file a petition on time.'" Id. at 7 (citing Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005)). The R&R concluded that "'lack of legal sophistication is not, by itself, an extraordinary circumstance . . . .'" Id. (citing Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)). The R&R concluded that "Petitioner fails to explain how limited communications with his counsel for his direct appeal warrant equitable tolling as to his federal habeas petition." Id. at 8. Therefore, the R&R concludes that "Petitioner has not presented 'any allegation that would, if true, entitle him to equitable tolling,'" and is therefore not entitled to an evidentiary hearing. Id. (citing Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006)).
The R&R informed the parties that any party may file an objection no later than March 3, 2010 and that any reply shall be filed within seven days of receiving the objections. Id. On March 4, 2010, the Court received Petitioner's Objections to Magistrate's Report and Recommendation. (Doc. # 21). Petitioner mailed his objection on March 3, 2010. Id. Respondent did not file any objections or any response to Petitioner's objections.
In his objection, Petitioner states that he was a minor at the time of his conviction, that he is "uneducated in the law, not even having graduated from high school, and relied on counsel in representing petitioner to the full extent of the law . . . ." Id. at 2. Petitioner states that the R&R "errs in assuming Petitioner knew of the issues before, during, and even after trial in support of his ineffective assistance of counsel claims." Id. Petitioner states that he did not know of the Sixth Amendment right to effective assistance of counsel and only "after learning through [Petitioner's original retained counsel's] declaration and showing it to a jail house lawyer was petitioner made aware" that his right to counsel had been violated. Id. at 3. Petitioner states that he learned through his contact with his original trial attorney that there were additional avenues of investigation that his original trial attorney believes the replacement trial counsel should have pursued. Id. at 5.
Petitioner states that the R&R errs in determining that Petitioner has not presented any allegations which, if true, would entitle him to equitable tolling. Id. Petitioner states that he did attempt to contact his original attorney prior to 2007 but was unable to reach him. Id. at 7. Petitioner states that these circumstances merit equitable tolling. Id. Petitioner states that the R&R errs in stating Petitioner did not present a connection between the ineffective assistance of his appellate counsel and his request for equitable tolling. Id. at 8. Petitioner states "the magistrate fails to understand that the direct appeal attorney is also expected and held to the United States Constitution Sixth Amendment, because of his ineffectiveness, petitioner was prejudiced heavily on appeal." Id. at 8. Petitioner states appellate ...