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Harvey Eugene Larson v. Carrasco

December 25, 2010

HARVEY EUGENE LARSON
PETITIONER,
v.
CARRASCO, WARDEN, ET AL.,
RESPONDENTS.



The opinion of the court was delivered by: Peter C. Lewis U.S. Magistrate Judge United States District Court

SECOND REPORT AND RECOMMENDATION ON MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

I. INTRODUCTION

Petitioner, Harvey Eugene Larson ("Petitioner"), has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his 2000 conviction for resisting an officer and exhibiting a deadly weapon to resist arrest in San Diego Superior Court case number SCE195230. (Doc. No. 9.)*fn1 Following Respondent's Motion to Dismiss the Petition for failure to file within the statute of limitations, and this Court's Report and Recommendation recommending dismissal, the District Court ordered the matter remanded for further consideration of three specific issues: (1) whether Petitioner was entitled to equitable tolling; (2) whether a state-created impediment to filing the petition existed so as to toll the statute of limitations; and (3) whether Petitioner was able to discover the factual predicate of his habeas claims before November 23, 2003. (See Doc. No. 36 at 4-5.)

I. PROCEDURAL BACKGROUND RELATED TO THIS ORDER FOR REMAND

Petitioner filed the operative Petition for Writ of Habeas Corpus in this Court on August 26, 2009. (Doc. No. 9.) On February 25, 2010, Respondents filed a Motion to Dismiss seeking dismissal of the Petition for failure to file within the statute of limitations. (Doc. No. 15.) On April 8, 2010 and April 16, 2010, Petitioner opposed the Motion. (Doc. Nos. 19; 21.) This Court filed a Report and Recommendation recommending dismissal because the Petition was filed beyond the statute of limitations. (See Doc. No. 26.)

Thereafter, District Court Judge Lorenz filed an Order Adopting in Part the Report and Recommendation and Remanding in Part the Matter to the Magistrate Judge for Further Report and Recommendation. (Doc. No. 36.) In the Order, Judge Lorenz remanded the matter for consideration of three issues: (1) whether Petitioner is entitled to equitable tolling of the statute of limitations due to denied access to the law library and problems with his legal mail; (2) whether a state-created impediment to filing the petition existed so as to toll the statute of limitations; and (3) whether Petitioner was able to discover the factual predicate of his habeas claims before November 23, 2003.*fn2 (See Doc. No. 36 at 4-5.) Regarding the issue of equitable tolling, the Order specifically states: the issue of equitable tolling is remanded for a Report and Recommendation in light of Petitioner's evidence.*fn3 The Report and Recommendation shall include consideration of the issue whether the limitations on Petitioner's access to the law library were ordinary limitations inherent in prison life, or amounted to an extraordinary circumstance sufficient to justify equitable tolling. The Report and Recommendation shall also include consideration of the issues whether Petitioner's difficulties with prison legal mail and/or access to his legal materials warrant equitable tolling. (Doc. No. 36 at 4-5.)

Pursuant to the District Court's Order, this Court has considered Petitioner's Oppositions to Respondent's Motion to Dismiss (Doc. Nos. 19; 21), Petitioner's Objection to Magistrate Judge's Report and Recommendation (Doc. No. 28), Petitioner's Amendment to Objection to Magistrate Judge's Report and Recommendation (Doc. No. 35), Petitioner's Affidavit in Support of Irreparable Injury and Supplemental Opposition (Doc. No 42), and Petitioner's Notice Regarding Exhibit Attachment (Doc. No. 44). Based upon the evidence presented in these documents, and for the reasons set forth below, the Court recommends that the Motion to Dismiss be GRANTED.

III. DISCUSSION

This Report and Recommendation (R&R) is limited to the analysis of whether equitable tolling applies to this Petition; whether a state-created impediment to timely filing of the petition existed; and whether Petitioner was able to discover the factual predicate of his habeas claims before the filing of his first state habeas petition on November 23, 2003. (See Doc. No. 36 at 4-5.) In analyzing these issues, the Court notes that the directive Order in this case has already determined that statutory tolling of the statute of limitations is not applicable. (Id. at 3-4.) Therefore, the only relevant period during which equitable tolling may apply is from July 30, 2002 (the date Petitioner's judgment became final in the state courts) and July 30, 2003 (the expiration of the statute of limitations). (Id. at 3.)

A. Petitioner is Not Entitled to Equitable Tolling of the Statute of Limitations For Denied Access to Law Library and Problems With Legal Mail Petitioner contends he is entitled to equitable tolling of the statute of limitations because "his legal work was confiscated and sometimes destroyed, and because of lack of access to the law library." (Doc. No. 36 at 4; Doc. No. 28 at 9.)

Generally, an untimely petition must be dismissed under 28 U.S.C.§ 2244(d) unless petitioner is entitled to equitable tolling of the one-year limitation period. Tillema v. Long, 253 F.3d 494 (9th Cir. 2001) contains a clear statement of the basic law governing equitable tolling of the AEDPA statute of limitations:

As we have previously held, "[w]hen external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999); see also Calderon v. United States Dist. Court (Kelly), 128 F.3d 1283, 1288-89 (9th Cir. 1997), overruled on other grounds by Calderon v. United States Dist. Court, 163 F.3d 530 (9th Cir. 1998) (en banc) (petitioner entitled to equitable tolling where petitioner's counsel withdrew and left replacement counsel with unusable work product that made timely filing impossible); Calderon, 163 F.3d at 541-42 (petitioner entitled to equitable tolling because the district court ordered a stay preventing petitioner's counsel from filing a timely habeas petition and because petitioner was allegedly mentally incompetent). Tillema, 253 F.3d at 504.

However, the Ninth Circuit Court of Appeals has also made clear that equitable tolling is unavailable in most cases. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling is only appropriate "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miranda, 292 F.3d at 1066 (quoting Calderon v. United Stated Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998)(en banc)). "Indeed, 'the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.'" Miranda, 292 F.3d at 1066 (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.), cert. denied, 531 U.S. 878, 121 S. Ct. 188, 148 L. Ed. 2d 130 (2000)). Additionally, the statute of limitations is subject to equitable tolling only when an inmate diligently pursues his claims. Woodward v. Williams, 263 F.3d 1135, 1142 -1143 (10th Cir.2001).

In his supporting documents, Petitioner argues many things. The Court notes Petitioner's documents amount to 530 pages of repeated arguments, exhibits and previous court filings in this and various other matters in both federal and state court.*fn4 Among Petitioner's supporting exhibits are letters to and from state courts, complaints and orders from other civil filings in the Eastern District of California and numerous prison grievances Petitioner has filed over the years. As this Court has read Petitioner's Oppositions (Doc. Nos. 19; 21), Objections to the R&R*fn5 (Doc. Nos. 28; 35) and ...


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