The opinion of the court was delivered by: Valerie Baker Fairbank United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, the Report and Recommendation of the United States Magistrate Judge, and Petitioner's untimely Objections.*fn1
After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and adopts the findings and conclusions of the Magistrate Judge. However, the Court addresses Petitioner's Objections below.
In his Objections to the Report, Petitioner asserts for the first time that he is entitled to statutory tolling because his 360 day delay in filing his only state habeas petition was justified by his counsel "perform[ing] substantial investigation." (Declaration of Counsel at 2, ¶ 10).*fn2 Specifically, Petitioner's counsel states that he "had [his] investigator contact all witnesses who were identified in the police reports and [he] visited the crime scene personally." (Id.). These vague assertions fail to justify a 360 day delay in filing Petitioner's state habeas petition.
"A petitioner does not meet his or her burden simply by alleging in general terms [that the delay was justified], or by producing a declaration from present or former counsel to that general effect." In re Robbins, 18 Cal. 4th 770, 787, 77 Cal. Rptr. 2d 153 (1998). Rather, a petitioner "must allege, with specificity, facts showing [justification for the delay]--and he or she bears the burden of establishing, through those specific allegations[,] . . . absence of substantial delay." Id.
Here, counsel's declaration is insufficient to justify Petitioner's 360 day delay from the date his conviction became final. As an initial matter, Petitioner's counsel fails to explain why it was necessary to "interview all witnesses identified in the police report" or to "visit the crime scene" given that Petitioner's only claim in his state habeas petition was that the trial court's admission of hearsay evidence violated his rights under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). (See Lodgment 8, Petition for Writ of Habeas Corpus ("Lodgment 8") at 2). Moreover, Petitioner fails to explain why he waited four years to investigate potential claims until his conviction became final and why that investigation took 360 additional days. (See Declaration of Counsel at 1-3).
California law measures the length of delay in filing a habeas petition "from the time a petitioner becomes aware of the grounds on which he seeks relief" and "[t]hat time may be as early as the date of conviction." In re Clark, 5 Cal. 4th 750, 765 n.5, 21 Cal. Rptr. 2d 509 (1993). Here, Petitioner was certainly aware of the grounds on which he sought relief since the date on which the Supreme Court issued its opinion in Crawford, March 8, 2004, if not before. Because Petitioner was aware of the grounds for his petition over one year and five months before he filed his only state habeas petition on September 2, 2005, the Court concludes that Petitioner's delay was unreasonable. See In re Clark, 5 Cal. 4th 750, 765 n.5, 21 Cal. Rptr. 2d 509 (1993) ("Although delayed presentation to enable the petitioner to file a habeas corpus petition with the opening brief on appeal has been permitted, a petition should be filed as promptly as the circumstances allow, and the petitioner must point to particular circumstances sufficient to justify substantial delay . . ." (internal quotation marks omitted, ellipses in original)); id. at 782 ("Stankewitz refutes any suggestion that the petitioner could delay filing the petition until the judgment was affirmed."). Accordingly, Petitioner's state habeas petition was untimely and does not provide statutory tolling.
Petitioner also contends that he is entitled to equitable tolling pursuant to Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008). (See Objections at 4). In Harris, the Ninth Circuit held that a petitioner was entitled to equitable tolling because he "relied in good faith on then-binding circuit precedent in making his tactical decision to delay filing a federal habeas petition." Harris, 515 F.3d at 1055. Specifically, the petitioner in Harris waited over fifteen months to file his federal habeas petition because he was pursuing collateral relief in the state courts. See id. at 1053. Pursuant to then-binding circuit precedent, a state habeas petition provided statutory tolling even if the petition was untimely under state law. See id. However, in Pace v. DiGuglielmo, 544 U.S. 408, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005), the Supreme Court rejected the Ninth Circuit's rule and held that a state habeas petition does not provide statutory tolling if it is untimely under state law. See Pace, 544 U.S. at 417. In Harris, the petitioner's state habeas petitions were untimely under state law and therefore did not provide statutory tolling pursuant to Pace. See Harris, 515 F.3d at 1053. The Ninth Circuit reasoned that the petitioner was entitled to equitable tolling because his federal habeas petition "became time-barred the moment that Pace was decided." Id. at 1056.
Here, Petitioner contends that he is entitled to equitable tolling because he "relied on what he reasonably believed to be the state of the law in this District and Circuit when he decided to exhaust his new issues in state court prior to filing his federal petition." (Objections at 14). Specifically, Petitioner asserts that he "reasonably relied on the state of the law when he filed his last state habeas petition for the proposition that even if it was denied on timeliness grounds, it was 'properly filed.'" (Id. at 11). However, Petitioner's equitable tolling argument is foreclosed by the recent Ninth Circuit opinion in Lakey v. Hickman, __F.3d __, 2011 WL 13922 (9th Cir. Jan. 5, 2011). In Lakey, the Ninth Circuit held that a habeas petitioner who delayed filing his federal habeas petition because of reliance on the state of the law prior to Pace was only entitled to equitable tolling until April 27, 2005, the date the Supreme Court issued Pace. See Lakey, 2011 WL 13922, at *4 ("Once Pace was decided, [the petitioner] had notice that [our prior precedent] had been overruled and that [statutory] tolling would be unavailable if his state petition was denied as untimely."). The Ninth Circuit also pointed out that "Pace explicitly advised state prisoners, such as [the petitioner], to file a protective federal petition to avoid a possible timeliness bar." Id.; see also Pace, 544 U.S. at 416 ("A prisoner seeking state post-conviction relief might avoid this predicament, however, by filing a 'protective' petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted."). As Pace was issued on April 27, 2005, months before Petitioner filed his September 2, 2005 state habeas petition, Petitioner's counsel knew or should have known that the law had changed and that he could not rely on the pre-Pace state of the law. Accordingly, Petitioner is not entitled to equitable tolling.
Even assuming that Petitioner was entitled to equitable tolling up to the date that the Supreme Court issued Pace on April 27, 2005, Petitioner did not file the instant Petition until June 23, 2006, 422 days later. Thus, the Petition would still be untimely. The Ninth Circuit has recognized "the harshness" of the rule in Pace, but Petitioner could have avoided "this predicament" by filing a protective petition in federal court instead of waiting for the outcome of his state habeas petition. Bonner v. Carey, 425 F.3d 1145, 1149 & n.20 (9th Cir. 2005) (discussing Pace).
IT IS ORDERED that the Petition is denied and Judgment shall be entered dismissing this action with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on counsel for Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ...