The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER and FINDINGS & RECOMMENDATIONS
An evidentiary hearing was held on December 1, 2009, in this matter to determine whether petitioner is entitled to equitable tolling because his appellate counsel failed to inform him of the denial of his July 26, 2006, petition for review until late October of 2007.*fn1 Assistant Federal Defender Ann McClintock represented petitioner; Deputy Attorney General Paul Bernardino represented the respondent.
This court had previously determined, in adjudicating respondent's motion to dismiss, that the petition was untimely by more than three weeks (24 days) under the AEDPA statute, but that an evidentiary hearing would have to be held in order to determine whether equitable tolling should apply to render the petition timely. See Order, filed on January 13, 2009 (docket # 21). The motion was denied explicitly without prejudice to the ultimate resolution following the evidentiary hearing, which was continued twice from the original date of June 15, 2009, once pursuant to a stipulation of the parties through their counsel and again due to a conflict with the prison's schedule. Petitioner's conviction offense, the length of his sentence, the grounds of his petition and the analysis of the statutory untimeliness of the petition has been fully set forth in the January 13, 2009, Order (docket # 21), and is incorporated by reference herein.
At the hearing, the undersigned observed that petitioner's testimony (via video-conferencing) regarding his efforts to keep up with the progress of his appeal appeared to be sincere as well as diligent. Petitioner testified consistently that he knew that his appeal claims had to go through two levels of courts, beginning with the state appellate court, before he could proceed upon a federal habeas corpus petition, although he also repeatedly stated that he did not know the name of the highest state court through which his direct appeal had to process, the state Supreme Court. In the February 15, 2005, introduction letter that his appointed appellate counsel, Rita Swenor, sent to petitioner, outlining the scope of her duties, there was no mention regarding the filing of state or habeas petitions. Petitioner's Exhibit (Exh.) 4. Ms. Swenor wrote that she would both mail him copies of briefs as the case progressed, as well as a copy of the court's decision (unless petitioner indicated that he would prefer to have these documents sent to someone else). Id., at 2. Petitioner testified that he never met Ms. Swenor in person (her first letter states that she would not be making an in-person visit unless warranted by unusual circumstances in his case). Id., at 1. Ms. Swenor does state in the letter that she will keep him "advised of all major events in the case as they occur" and she invites him to write to him with questions or comments about his case and she would "always try to respond promptly." Id., at 2.
She also states that she writes to her clients "whenever there has been a significant development in the case" and when she files a brief, that "major events in the case often are separated by a period of months," that at the completion of the appeal she would return the transcripts to him or as otherwise directed. Id., at 1-2
Petitioner testified that he heard nothing about the outcome of his appeal to the state appellate court prior to his current counsel's showing him in 2008 the May, 2006, opinion (contained at pp. 69-77 of petitioner's Exh. 1). Petitioner acknowledged that he did receive the March 9, 2005, letter from Ms. Swenor (requesting, inter alia, that he sign an authorization for her to obtain certain information). Petitioner's Exh. 5. Petitioner also recalled the copies of Ms. Swenor's requests for extension of time to the Third Appellate District Court of Appeal, dated April 23, 2005; May 24, 2005; and June 23, 2005, respectively, and indicated that he knew that there was no opening brief filed as of June, 2005. Petitioner's Exhs. 6, 7, 8. Petitioner acknowledged receiving the July 25, 2005, letter which contained a copy of the opening brief. Petitioner's Exh. 9. In the letter, petitioner is told the time lines for the filing of the responsive brief and any reply. Id. Petitioner testified that the opening brief contained in pages 80 through 110 of petitioner's Exh. 1 looked familiar. Petitioner also recalled the brief December 6, 2005, letter from Ms. Swenor, enclosing both the respondent's brief (and also stating the reply brief was enclosed). Petitioner's Exh. 10. Petitioner testified that from this point he heard nothing more from Ms. Swenor (until much later, see below).
Petitioner recognized respondent's Exh. B-2, as petitioner's first letter to the Court of Appeal, dated as received on August 10, 2006, following his apparent receipt from that court of a letter saying that there had been a remittitur to the trial court clerk with a certified opinion attached.*fn2 Petitioner asked therein for an explanation of "this paper work" and noted that no opinion had been attached. Petitioner confirmed that his Exh. 11 was the clerk's August 10, 2006, response to this inquiry. In the letter, it is explained that the case was remitted back to the trial court's jurisdiction, that the appeal was final in the appellate court and that no copy of opinion was supposed to be attached to his copy of the remittitur notification. Petitioner recalled respondent's Exh. B-4 as his second follow-up letter to the appellate court clerk, dated received as of August 24, 2006. Petitioner recognized his Exh. 12, as the clerk's response in a letter dated August 24, 2006.
Petitioner testified to having written to Ms. Swenor three to five times after his last communication from her in the letter dated December 6, 2005, prior to having received notice of the remittitur from the state appellate court. The mail log bears this out. The log indicates that petitioner mailed letters to Ms. Swenor on January 3, 2006, April 3, 2006 and June 28, 2006. Respondent's Exh. C, p. 1. The mail log also shows that he sent mail to Ms. Swenor simultaneous with sending the above-described inquiries to the state appellate court following his receipt of a copy of the remittitur notice, on August 7, 2006, as well as August 21, 2006. (Although petitioner could not precisely recall whether his letters to her at that time were duplicates of the ones he sent to the state appellate court clerk, he agreed with respondent's counsel that it was reasonable to conclude that they were). Petitioner also recalled trying to call Ms. Swenor in 2006, around the time of the remittitur. Petitioner also testified that he continued to write to his appellate counsel for information about what had happened on appeal and to get a copy of the opinion. The prison mail log at Pleasant Valley State Prison (PVSP) shows that, in addition, to the attempted communications noted above, petitioner also wrote to Ms. Swenor on January 23, 2007, on February 26, 2007, and on March 8, 2007. Respondent's Exh. C, p. 2. The PVSP mail log verifies that petitioner sent a letter to the Central California Appellate Project (CCAP) on March 14, 2007, and the letter itself, dated March 12, 2007, is an inquiry to CCAP about what is going on with his case. Respondent's Exh. C, p. 2; petitioner's Exh. 15, pp. 3, 5. In the letter, petitioner explains that he has written about four to six letters to Ms. Swenor, but that he has received no response; he states that he is sure a decision has been made in his case, but that he would like to read the decision so that he could know what to do next. Petitioner's Exh. 15, p. 3. He asks for help to determine into which court he needs to file next and what forms to use and seeks to move on his case as soon as possible, and again expresses his concern as to why Ms. Swenor has failed to respond to his letters. Id. Petitioner testified that he was transferred from PVSP to High Desert State Prison (HDSP) in April of 2007. Despite his efforts, petitioner testified that he did not receive any communication from his appeals lawyer, Ms. Swenor, until October or November of 2007. The HDSP incoming mail log verifies mail from Ms. Swenor was received at the prison on October 29, 2007. Respondent's Exh. C-3. Petitioner recalled the letter from Ms. Swenor, dated October 19, 2007, as his first communication from her since December of 2005. Petitioner's Exh. 13. Within that letter, Ms. Swenor included a draft of a federal habeas petition, petitioner verified as his Exh. 14 and within her letter, she directs petitioner to get the petition in the mail by October 24, 2007. As pointed out, however, this would have been a physical impossibility because, as noted above, the HDSP prison log records the communication from Ms. Swenor as not received until October 29, 2007. Petitioner recognized the petition as the one he signed and dated on November 17, 2007. He explained that, in addition, to the deadline she set forth having already passed by the time he received it from Ms. Swenor, he was in administrative segregation at the time he received it and that it was difficult to get to the library for a copy so that he could have a record of it before sending it out. In addition, when his counsel also asked if it took some time to prepare an in forma pauperis application to accompany the petition, he agreed that it had.
For Ms. Swenor's part, she testified that it was her practice to notify any client in a final letter, once the California Supreme Court has denied the petition for review, telling him when the AEDPA statute of limitations would expire. Ms. Swenor testified that she had had two computer crashes, apparently within the relevant period, but was unable to definitively determine how petitioner fell through the cracks. However, it was only, she thinks, when she was in the process of shredding old files that she discovered that she had the original appellate denial opinion as well as the transcripts that she would have sent at the time of the usual final letter and no record of having sent it to him, which makes her believe that she never sent him such a letter. Upon the realization of that omission, she apparently panicked (nearly had a "heart attack," in her words) and in an effort to mitigate the prejudice to petitioner, drafted the federal habeas petition (which she had not filled out before in thirty years of practice) and forwarded the packet by Federal Express to her client, petitioner herein, at the prison.
In his cross-examination of petitioner, respondent's counsel pointed out that the exhaustion petition filed in the state supreme court by Ms. Swenor, which indicates service on June 20, 2006, also lists in the proof of service that petitioner was among those served. Respondent's Exh. A. Petitioner did not appear to definitively recall having been served, and the court's subsequent review of the relevant mail log produced by respondent does not indicate a mailing from Ms. Swenor received on or around that date.*fn3 Respondent's Exh. C-1. In her testimony, Ms. Swenor stated that she believed she had sent it, but had no way to know if petitioner had ever received it. Petitioner testified that whether or not he received it, he still would not have known what the outcome was of his appeal or when it occurred.
Respondent's counsel focused on the substance of the response to petitioner's inquiry (see respondent's Exh. B-4) by the state appellate court clerk on August 24, 2006. Respondent's Exh. B-5; petitioner's Exh. ...