IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 20, 2010
EDWARD ONTIVEROS, PETITIONER,
MICHAEL MARTEL, ACTING WARDEN,*FN1 RESPONDENT.
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This action proceeds on the April 26, 2009 petition.*fn2 Respondent moves to dismiss this action upon the ground it is untimely. Petitioner opposes, asserting he is entitled to both statutory and equitable tolling.*fn3 For the reasons explained below, the court finds that the petition is untimely and therefore recommends that this action be dismissed.
I. Procedural History
In 1984, petitioner was sentenced by the Alameda County Superior Court to a state prison term of 25 years to life, following his conviction of first degree murder. Dckt. No. 1 at 2. On August 23, 2006, the Board of Parole Hearings ("Board") found petitioner unsuitable for parole. See id. at 1 (from first unnumbered exhibit, including petition filed in California Supreme Court). Thereafter, petitioner challenged the Board's decision by seeking state habeas relief, beginning February 19, 2007, when he filed his superior court petition, through June 13, 2007, when the California Supreme Court denied his petition. See Dckt. No. 13, Ex. A-F. Next, petitioner challenged the Board's decision by filing a habeas petition in this court on October 6, 2007. See Ontiveros v. Subia, No. Civ. S-07-2245 MCE EFB P, Dckt. No. 1.*fn4 On September 26, 2008, the court dismissed the petition as unexhausted and judgment was entered. Id., Dckt. No. 13, 14. Thereafter, petitioner returned to the California Supreme Court with his challenge to the Board's decision. Dckt. No. 13, Ex. G. On April 26, 2009, petitioner filed the instant petition, which also challenges the Board's 2006 decision to deny petitioner parole. Dckt. No. 1.
II. Statute of Limitations
The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1). It provides as follows:
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). Courts ordinarily deem the factual predicate to have been discovered the day the decision becomes final, i.e., 120 days after the Board finds a petitioner not suitable for parole. See Gray v. Cramer, No. S-07-1928, 2009 U.S. Dist. LEXIS 25293, at *6-7 (E.D. Cal. Mar. 27, 2009); Woods v. Salazar, No. CV 07-7197, 2009 U.S. Dist. LEXIS 64573, at *16-17 (C.D. Cal. Mar. 23, 2009), adopted by 2009 U.S. Dist. LEXIS 64575; Nelson v. Clark, No. 1:08-cv-0114, 2008 U.S. Dist. LEXIS 48682, at *7-9 (E.D. Cal. June 23, 2008), adopted in full by 2008 U.S. Dist. LEXIS 71061.
When a petitioner properly files a state post-conviction application, the limitations period is tolled and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). "[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). A federal habeas application does not provide a basis for statutory tolling. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
The limitations period may also be equitably tolled where a habeas petitioner establishes two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In light of this pronouncement, the Ninth Circuit has reiterated that the threshold necessary to trigger equitable tolling is very high, and clarified that equitable tolling only applies where a petitioner shows that despite diligently pursuing his rights, some external force caused the untimeliness. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009).
Petitioner has the burden of showing facts entitling him to statutory and equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
Here, the Board's August 23, 2006 decision to deny parole was only a proposed decision that did not become final until 120 days after the hearing, on December 21, 2006. See Cal. Penal Code § 3041(b). Because there was no final decision until 120 days after the hearing, the factual predicate of petitioner's claims and the claims themselves were not ripe for review before that date. Accordingly, the limitations period accrued on December 21, 2006, the day the Board's decision became final, and petitioner had one year thereafter to file a timely petition, i.e., until December 21, 2007.*fn5 Absent tolling, the instant petition is over one year late.
Respondent allows for statutory tolling for the time during which petitioner's first round of state habeas petitions was pending, from February 19, 2007 until June 13, 2007 (114 days).*fn6
See Dckt. No. 13 at 2, 3-4. However, respondent contends that petitioner is not entitled to statutory tolling for the time during which his first federal petition was pending or the time during which his second state supreme court petition was pending. Id. Respondent's position is correct, as a federal habeas application is not an "application for State post-conviction or other collateral review" and thus, cannot provide a basis for statutory tolling. 28 U.S.C. § 2244(d)(2); Duncan, 533 U.S. at 181-82. With the allowed statutory tolling (114 days), petitioner had until April 14, 2008 to file the instant petition. However, it was not until October 21, 2008 that petitioner filed his second petition with the state supreme court. Dckt. No. 13, Ex. G. The limitation period cannot be re-started when it has already ended by the time a state petition is filed. Ferguson v. Palmateer, 321 F. 3d 820, 823 (9th Cir. 2003). Thus, petitioner's second petition filed with the California Supreme Court cannot provide a basis for statutory tolling.
A prisoner is entitled to equitable tolling "only if extraordinary circumstances beyond [his] control make it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (citations omitted). Petitioner asserts he is entitled to equitable tolling because of a "documented learning disability," having no education beyond the third grade, his pro se status, the fact that he is indigent, unspecified prison lockdowns, and his inability to obtain assistance from other inmates. Dckt. No. 17 at 3-5; see also Dckt. No. 20, Ex. A (including: a declaration of another inmate, stating that petitioner lacks the intelligence and ability to research and prepare legal documents; documents dated July 2000, signed by senior psychologist, and noting a "reasonable possibility" that petitioner has "a significant learning disability"; academic transcripts from 1976 through 1980, showing petitioner's poor academic performance; and petitioner's negative "Education Progress Report" from 1998). However, petitioner fails to demonstrate how any of these circumstances made it impossible for him to timely file his petition.
Although petitioner is a pro se litigant and/or may have limited education or learning ability, his ignorance of the law does not constitute an extraordinary circumstance that would warrant equitable tolling. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see also Humphrey v. Clark, No. CV 09-4035 GAF (DTB), 2009 U.S. Dist. LEXIS 122867, *9-15 (C.D. Cal. Nov. 3, 2009) (citing cases in support of propositions that illiteracy/below average intelligence do not constitute extraordinary circumstances warranting equitable tolling). Moreover, while petitioner may have a learning disability and may be uneducated, he has not alleged that such circumstances caused his petition to be untimely. Without specific allegations or evidence of how petitioner's circumstances actually caused him to not be able to timely file despite his diligence, the court cannot find that he is entitled to equitable tolling. Cf. Laws v. Lamarque, 351 F.3d 919, 923-24 (9th Cir. 2003) (remanding case for further factual development where petitioner alleged in a verified pleading that his medication "deprived [him] of any kind of as consciousness" during the years that he sought equitable tolling, and respondent did not rebut this allegation).
Moreover, respondent points out that from June 13, 2007, when the California Supreme Court denied petitioner's first petition, until April of 2009, when petitioner filed the instant petition, petitioner filed 24 documents in five different cases in this court. Dckt. No. 19 at 3, Ex. 1-5 (including motions for appointment of counsel, requests for status, an opposition to a motion for summary judgment, an opposition to a motion to dismiss, objections to findings and recommendations, and petitions for writ of habeas corpus). Petitioner also filed six documents in the first federal habeas action he commenced to challenge the Board's 2006 parole denial. Dckt. No. 19, Ex. 6. During this time period petitioner also filed ten documents in three different actions before the Court of Appeals for the Ninth Circuit. Id., Ex. 7-9. Based on this record, the court must agree with respondent that petitioner's "extensive litigation history" is inconsistent with the notion that petitioner's learning disability was the "but for" cause of his untimeliness. Id. at 3-4 (citing Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007)); see also Tibbs v. Adams, No. Civ. S-05-2334 LKK KJM P, 2009 U.S. Dist. LEXIS 90551, at *18 (E.D. Cal. Sept. 29, 2009) (finding petitioner's "real-world achievements" precluded equitable tolling despite petitioner's "comprehension difficulties.").
Finally, petitioner claims that the periods of time during which his first federal petition, and his second state supreme court petition were pending, should not be counted against him, as these delays were not petitioner's fault and should be considered "extraordinary circumstances" beyond his control. Dckt. No. 17 at 3, 4, 8. However, petitioner was required to first present all of his claims to the California Supreme Court and await that court's decision before seeking federal habeas relief. Instead, petitioner filed an unexhausted federal petition. The statute of limitations expired while the unexhausted federal petition was pending. See Ontiveros v. Subia, Civ. S-07-2245 MCE EFB P (petition pending from October 6, 2007 to September 26, 2008). Petitioner's mistake in this regard does not constitute an extraordinary circumstance beyond his control warranting equitable tolling. See Serrano v. Clay, No. CV 09-2103-DDP (JEM), 2009 U.S. Dist. LEXIS 124434, at *11-15 (E.D. Cal. Oct. 20, 2009) (no equitable tolling for period in which first and unexhausted federal petition was pending), adopted in full by 2010 U.S. Dist. LEXIS 8589; Parnell v. Evans, No. C. 05-4324 SBA (PR), 2009 U.S. Dist. LEXIS 24475 , at *9-10 (N.D. Cal. Mar. 16, 2009) ("Any claim of ignorance of the exhaustion requirement, statute of limitations, or statutory tolling rules does not constitute an extraordinary circumstance warranting equitable tolling.").Moreover, and contrary to petitioner's assertions, in dismissing petitioner's fully unexhausted petition, the court was not required to inform petitioner that the limitation period had expired at the time judgment was entered, and did not mislead petitioner in any way. See Dckt. No. 20 at 4; see also Jiminez v. Rice, 276 F.3d 476, 481 (9th Cir. 2001) (holding that district courts must dismiss habeas petitions which contain only unexhausted claims).
For the foregoing reasons, the court concludes that respondent's motion to dismiss this action as time-barred must be granted.
The court also finds that an evidentiary hearing on the equitable tolling issue, see Dckt. No. 17 at 5, is unnecessary, and that petitioner's requests for the appointment of counsel should be denied. See id. at 5, 10; Dckt. No. 20 at 1.
Accordingly, it is hereby ORDERED that petitioner's requests for appointment of counsel are denied.
Further, it is hereby RECOMMENDED that:
1. Petitioner's request for an evidentiary hearing on the issue of equitable tolling be denied;
2. Respondent's October 20, 2009 motion to dismiss the petition as barred by the statute of limitations be granted; and
3. The Clerk be directed to close the case.
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 fourteen 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." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).