IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 23, 2010
LEVERETT GRISSOM, PETITIONER,
MIKE KNOWLES, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2006 Board of Parole Hearings (BPH) decision that found petitioner unsuitable for parole.
Pending before the court is respondent's November 16, 2009 motion to dismiss on the grounds that (1) this action is barred by the statute of limitations and (2) petitioner's second claim does not state a federal claim. Dkt. No. 19. Petitioner filed an opposition and respondent filed a reply. Dkt. Nos. 26, 28. After carefully considering the entire record, the court recommends that respondent's motion to dismiss be granted and this case closed.
II. Motion to Dismiss
The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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.
The statute of limitations for habeas petitions challenging parole suitability hearings is based on § 2244(d)(1)(D), i.e. the date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence. Redd v. McGrath, 343 F.3d 1077 (9th Cir. 2003). At the time the Ninth Circuit decided Redd, suitability decisions could be administratively appealed. Id. at 1084. In Redd, the Ninth Circuit held that the factual basis of the petitioner's claims challenging a parole suitability hearing could have been discovered through the exercise of due diligence when the BPH denied the administrative appeal. Id.
Since Redd, the administrative review process for parole suitability hearings has been eliminated. According to the transcript from petitioner's April 26, 2006 suitability hearing before the BPH, the decision finding petitioner unsuitable for parole became final on August 24, 2006. Motion to Dismiss (MTD), Exh. A at 101.
The statute of limitations began to run the next day, on August 25, 2006. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is until August 25, 2007, to file a timely federal petition, absent applicable tolling. The instant action was received by the court on January 6, 2009. However, petitioner indicated that he provided the petition to prison authorities on October 2, 2008, but the petition was returned to him on December 18, 2008, and petitioner once again gave the petition to prison authorities on December 23, 2008. Opposition at 8. In his opposition, petitioner refers to exhibits to support this contention, however no exhibits were annexed to the opposition. The court will provide petitioner the benefit of the mailbox rule*fn1 and deem the petition filed on October 2, 2008. Nevertheless, the petition is not timely unless petitioner is entitled to statutory or equitable tolling.
Petitioner filed five state post-conviction collateral actions:
1. April 13, 2007: First habeas petition filed in the California Supreme Court. MTD at 67.*fn2 The petition was denied on September 12, 2007. Id. at 50.
2. February 5, 2008: Second habeas petition filed in the Los Angeles Superior Court. MTD at 18. The petition was denied on May 30, 2008. Id. at 8-9.
3. June 25, 2008: Third habeas petition filed in the California Court of Appeal, Second Appellate District. MTD at 93. The petition was denied on July 17, 2008. Id. at 85.
4. July 12, 2008:*fn3 Fourth habeas petition filed in the California Court of Appeal, Second Appellate District. MTD at 108. The petition was denied on August 18, 2008. Id. at 100.
5. June 25, 2008: Fifth habeas petition filed in the California Supreme Court. MTD at 147. The petition was denied on September 17, 2008. Id. at 139.
Petitioner filed the instant petition on October 2, 2008.
Under AEDPA, the period of limitation is tolled while a "properly filed" application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d)(2). Petitions are properly filed so long as there was no unreasonable delay between the petitions, and if each petition is properly filed, then a petitioner is entitled to a tolling of the statute of limitations during the intervals between a lower court decision and the filing of a petition in a higher court during one complete round of appellate review ("interval tolling"). See Evans v. Chavis, 546 U.S. 189, 193-94 (2006).
The Supreme Court has explained that in order for a state habeas petition to be "properly filed" for purposes of statutory tolling, the petition's delivery and acceptance must be in compliance with the laws and rules governing such filings. Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005). "[T]ime limits, no matter their form, are 'filing' conditions." Pace v. DiGuglielmo, 544 U.S. at 417. "When a post-conviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2)." Id. at 414. Under such circumstances, the petitioner is not entitled to statutory tolling. Id. at 417.
Petitioner's first state petition filed in the California Supreme Court on April 13, 2007, occurred approximately 231 days after judgment became final. Respondent concedes that petitioner is entitled to statutory tolling during the pendency of the that petition. MTD at 3. Accordingly, petitioner is entitled to tolling for the period from April 13, 2007, the date the petition was filed, to September 12, 2007, the date the state petition was denied, 152 days. With this tolling, petitioner had until approximately January 24, 2008 to timely file his federal petition.
The first state petition was denied on September 12, 2007, but petitioner's second petition in Los Angeles Superior Court was not filed for nearly five months, approximately 146 days, until February 5, 2008. Petitioner is not entitled to statutory tolling for the nearly five month delay between the denial of his first petition and the filing of the second petition. See Evans v. Chavis, 546 U.S. at 201 (2006); see also Gaston v. Palmer, 447 F.3d 1165, 1167 (9th Cir. 2006) (amending 417 F.3d 1030 (9th Cir. 2005) (petitioner not entitled to "gap" tolling for intervals between California state habeas filings of 15 months, 18 months, and 10 months, given length of delays, lack of clear statement from California legislature or courts that delays of such length were reasonable, and lack of explanation or justification for delays)); Culver v. Director of Corrections, 450 F.Supp. 2d 1135, 1140-41 (C.D. Cal. 2006) (unexplained, unjustified delays of 97 and 71 days between the denial of one state petition and the filing of the next petition constituted unreasonable delays such that the intervals cannot be tolled under Chavis).
The second state petition was filed on February 5, 2008, 12 days after the statute of limitations for filing a federal petition expired. Petitioner is not entitled to statutory tolling for the second, third, fourth and fifth petitions as all of these petitions were filed after the expiration of the limitations period which occurred, with tolling, on January 24, 2008. State habeas petitions filed after the one-year statute of limitations has expired do not revive the statute of limitations and have no tolling effect.*fn4 See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).
Thus, the instant federal petition filed on October 2, 2008, is untimely unless petitioner is entitled to equitable tolling.
Petitioner argues that he is entitled to equitable tolling for separate periods of time due to working in a prison job and being transferred to a different prison in September 2007.*fn5
The AEDPA's one-year statute of limitations is subject to equitable tolling but only if a petitioner can show " '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Pace v. Diguglielmo, 544 U.S. 408, 418 (2005). Petitioner bears the burden of alleging facts that would give rise to tolling. Pace, 544 U.S. at 418. "Equitable tolling is unavailable in most cases," and is only appropriate "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 (2002) (internal quotations/citations omitted [emphasis added in Miranda]). A petitioner must reach a "very high" threshold "to trigger equitable tolling [under AEDPA]...lest the exceptions swallow the rule." Id.
The Ninth Circuit found extraordinary circumstances in Calderon v. U. S. District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). The three reasons given which independently justified tolling were: a district court stay which prevented petitioner's counsel from filing a habeas petition; mental incompetency until a reasonable time after the court makes a competency determination; and the fact that petitioner did at one time have timely habeas proceedings pending which were mistakenly dismissed, not as a result of any doing by petitioner. Id. at 541-42. See also Corjasso v. Ayers, 278 F.3d 874 (9th Cir. 2002) (clerk's unjustified rejection of a petition justified partial tolling); Miles v. Prunty, 187 F.3d at 1107 (delay by prison in withdrawing funds from prisoner's trust account, preparing and mailing filing fee were circumstances beyond his control, qualifying him for equitable tolling); Stillman v. Lamarque, 319 F.3d 1199, 1202-03 (9th Cir. 2003) (equitable tolling permitted where litigation coordinator broke a promise to petitioner's counsel to return a signed petition for timely filing); Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003) (sufficiently egregious misconduct by counsel, such as wholly deficient performance, may justify equitable tolling).
Conversely, in U.S. v. Van Poyck, 980 F. Supp. 1108, 1110-11 (C.D. Cal. 1997), the court found that a petitioner's circumstances were not extraordinary in the following circumstances: inability to obtain transcripts from court reporters, and general prison lockdowns preventing the prisoner's access to the library and a typewriter which were necessary to his motion. See also Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (counsel's miscalculation of limitations period "and his negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling"); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (reliance on incompetence of jailhouse lawyer not sufficient to justify cause to excuse procedural default); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (prisoner's unfamiliarity of law did not toll statute); Eisermann v. Penarosa, 33 F.Supp.2d 1269, 1273 (D.Haw. 1999) (lack of legal expertise does not qualify prisoner for equitable tolling); Henderson v. Johnson, 1 F.Supp.2d 650, 656 (N.D. Tex. 1998) (same); Fadayiro v. United States, 30 F.Supp.2d 772, 779-80 (D.N.J. 1998) (delay in receipt of transcripts does not justify equitable tolling).
Petitioner first argues that he is entitled to equitable tolling as he was working in a prison job from March 2006 through July 2007. Opposition at 5. Petitioner contends that his hours varied from 8:00 am to 3:15 pm, 8:00 am to 5:00 pm and at other times 8:00 am to 7:15pm. Id. Petitioner states that this work schedule prevented him from adequately developing his claims in a timely fashion. Petitioner has not cited to, nor is the court aware of any authority to provide equitable tolling in this situation. Petitioner has not met his burden in demonstrating that his work schedule was an extraordinary circumstance to justify equitable tolling.
Petitioner next argues that he was transferred to another prison on September 26, 2007, and had to wait approximately two weeks before he received his personal property that contained his legal materials. Opposition at 6-7.
This prison transfer occurred just after the September 12, 2007 denial by the California Supreme Court of petitioner's first state habeas petition. However, petitioner did not file his second petition until February 5, 2008. Petitioner provides no evidence or exhibits in support of this argument and provides no additional information how this two week span without his legal materials attributed to the nearly five month delay between state petitions.
Petitioner bears the burden of alleging facts that would give rise to tolling. Pace, 544 U.S. at 418. "The petitioner must additionally show that 'the extraordinary circumstances were the cause of his untimeliness'... and that the 'extraordinary circumstances ma[de] it impossible to file a petition on time.'" Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations omitted).
Petitioner's bare allegations are insufficient to provide for equitable tolling. See Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (petitioner's general allegations of denial of access to legal files were insufficient to justify equitable tolling); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir. 2009) (petitioner failed to meet the "burden of showing his own diligence and that the hardship caused by lack of access to his materials was an extraordinary circumstance that caused him to file his petition almost a year late.")
Thus, petitioner is not entitled to equitable tolling and this case should be dismissed for being filed after the expiration of the statute of limitations. As the court is recommending that the petition be dismissed for being untimely, the court will not discuss if petitioner's second claim is an inappropriate federal claim.
Accordingly, IT IS HEREBY RECOMMENDED that respondent's November 16, 2009 motion to dismiss (Dkt. No. 19) be granted and this case closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).