FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding with counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 17, 2010, respondent filed and served the pending motion to dismiss, arguing that petitioner's federal habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Petitioner has filed an opposition and respondent has filed a reply. The matter then came before the court on August 27, 2010, for oral argument. Michael Bigelow, Esq. appeared for petitioner. Deputy Attorney General Robert Nash, Esq. appeared for respondents defendants. Having considered the briefs submitted by counsel, the record before the court and the oral arguments of the parties, for the reasons set forth below the undersigned recommends that respondent's motion to dismiss be granted.
On January 30, 2006, a Sacramento County Superior Court jury found petitioner guilty of lewd and lascivious acts on a child under the age of fourteen and found the enhancement allegation that he committed the offense against two or more victims to be true. (Petition (Doc. No. 1) at 4; Lod. Doc. 1 &2.)*fn1 On April 7, 2006, petitioner was sentenced to a term of 45 years to life imprisonment. (Id.)
On October 3, 2007, the California Court of Appeal for the Third Appellate District, affirmed the judgment of conviction. (Petition at 4; Lod. Doc. 2.) Petitioner filed a petition for review with the California Supreme Court. (Petition at 5; Lod. Doc. 3 & 4.) That petition was denied on December 19, 2007. (Id.)
Petitioner did not file a petition for writ of certiorari with the United States Supreme Court nor did he pursue habeas relief in the state courts. On April 14, 2010, petitioner commenced this action by filing a petition for a writ of habeas court with this court.
RESPONDENT'S MOTION TO DISMISS
Respondent asserts that a state prisoner challenging the legality of his custody has one-year from the date his judgment becomes final by the conclusion of direct review or the expiration of time for seeking such review, in which to seek federal habeas relief. (MTD (Doc. No. 11) at 2.) Respondent contends that direct review of petitioner's conviction ended on March 18, 2008, when the 90-day period for filing a petition for writ of certiorari with the United State Supreme Court expired. (Id.) Thus, according to respondent, the statute of limitations for the filing of a federal habeas petition in this case began to run on March 19, 2008, and the last day for petitioner to seek federal habeas relief was on March 18, 2009, plus any time for tolling. (Id. at 3.) Respondent asserts that since petitioner did not file any applications for state post-conviction relief, the statute of limitations for the filing of a federal habeas petition expired on March 18, 2009. (Id.) Respondent notes that the pending habeas petition was not filed until April 14, 2010, more than a year after the one-year statute of limitations under 28 U.S.C. § 2244(d) had expired. (Id.) Accordingly, respondent concludes that this federal habeas action is time-barred and must be dismissed.
II. Petitioner's Opposition
Petitioner argues that the AEDPA statute of limitations for the filing of a federal habeas petition is subject to equitable tolling in this case. (Opp'n at 5.) Petitioner explains that after his petition for review was denied by the California Supreme Court, he implored his daughter to locate and retain on his behalf an attorney with federal habeas expertise. (Id.) Petitioner's daughter provides a declaration in which she admits that she promised her father that she would locate and retain an attorney on his behalf, but after her father's conviction and the California Supreme Court's denial of his petition for review, she fell seriously ill, suffering from severe clinical depression. (Id., Ex. B at 1.) Petitioner's daughter declares that, as a result, she was unable to function normally and that in August of 2008, she finally sought the assistance of a mental health expert. (Id.) In addition, although she did contact at least one attorney during that period she was ill, she declares that she was emotionally unable to follow through on that contact. (Id.) According to petitioner's daughter, it was not until approximately December of 2009, that she had recovered sufficiently to begin again the search for an attorney on behalf of her father. (Id., Ex. B at 2.) An attorney was retained to represent her father in connection with these proceedings on January 29, 2010 and approved by petitioner on February 5, 2010. (Id.)
Petitioner has also submitted a declaration in which he states that he spoke regularly with his daughter, either in person or by telephone, and that she repeatedly told him that she was working to obtain an attorney to represent him and that he believed her. (Id., Ex. A at 1.) In addition, petitioner declares, "I do not have a very good education and over the years I have come to rely upon and trust my daughter." (Id.) Petitioner indicates that he relied exclusively on his daughter to locate an attorney to represent him following his conviction and after the decisions of the California Court of Appeals and California Supreme Court on direct review. (Id., Ex. A at 1-2.) Petitioner states that his daughter told him that he had sufficient time to file a federal habeas petition attacking his conviction. (Id., Ex. A at 1.)
In arguing for equitable tolling of the AEDPA statute of limitations under these circumstances petitioner's counsel concedes that he has been unable to find authority directly on point. Nonetheless, petitioner's counsel argues that equitable tolling should be applied here because petitioner relied on a trusted family member who repeatedly gave him assurances that everything would be dealt with in a timely manner. (Opp'n at 7.) Finally, petitioner's counsel contends, if petitioner's daughter was an attorney, "there is little question that under these circumstances equitable tolling would be appropriate." (Id.)
In reply, respondent argues that petitioner is not entitled to equitable tolling of the one-year statute of limitations because (1) it was the mental state of petitioner's daughter and not petitioner's own mental state that allegedly caused the delay in locating an attorney, and (2) petitioner was not diligent in pursuing federal habeas relief. (Reply at 2.) In support of his arguments respondent refers to court decisions in which a petitioner's own mental incompetence was deemed inadequate to justify equitable tolling of the AEDPA statute of limitations. (Id. at 3.) Respondent also argues that, for example, a petitioner's reliance on jailhouse lawyers to file his federal habeas petition does not warrant equitable tolling because reliance on another person for assistance is "strictly voluntary" and pursued as a matter of choice by the petitioner. (Id. at 4.) In this case, respondent contemns, petitioner's decision to rely on his daughter and wait for her to retain counsel on his behalf to seek federal habeas relief does not show diligence on his part. (Id.) Respondent notes that petitioner could have sought assistance from other family members or inmates at his place of incarceration, made attempts to obtain counsel himself, or pursued post-conviction review of his claims on his own behalf. (Id.) Finally, respondent disagrees with petitioner's argument that if his daughter was an attorney, equitable tolling would apply under the circumstances here. (Id.) In this regard, respondent ...