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Artis Maurice Washington v. Tim Virga

March 17, 2011

ARTIS MAURICE WASHINGTON, PETITIONER,
v.
TIM VIRGA, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. Percy Anderson United States District Judge

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 636, the Court has carefully studied the Petition, all of the records herein, the Report and Recommendation of the United States Magistrate Judge, and the Objections to the Report and Recommendation. For the reasons detailed below, the Court adopts the findings, conclusions, and recommendations of the Magistrate Judge, and denies a certificate of appealability.

I. Scope and Nature of Objections

Foremost, Petitioner does not contest several of the Magistrate Judge's findings, including that his conviction was final on October 1, 2000; he did not seek collateral review of his conviction until he filed a state habeas petition almost seven years later in July 2007; the California Supreme Court denied his final habeas petition as untimely on August 13, 2008; and Petitioner did not sign his federal petition until over two years later on November 30, 2010.

Rather, Petitioner objects to the Report and Recommendation on two grounds: (1) that he is entitled to several years of equitable tolling that renders the Petition timely; and (2) that the statute of limitations in the Antiterrorism and Effective Death Penalty Act ("AEDPA") is unconstitutional. Neither of these objections is tenable.

II. Petitioner Is Not Entitled to Equitable Tolling

Petitioner first contends that he is entitled to equitable tolling because of three constraints on his ability to file a federal petition: (1) his mental illness and dyslexia; (2) his limited education and lack of access to a lawyer or other legal assistance; and (3) limitations on his access to the law library and the computers in the library. The Court lays out the operative standard and, then, addresses each of these arguments in turn.

While the one-year AEDPA statute of limitations is subject to equitable tolling in appropriate cases, Holland v. Florida, __ U.S.__, 130 S.Ct. 2549, 2560 (2010), "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule[,]" and equitable tolling is "unavailable in most cases," Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal quotation marks and citations omitted).

A petitioner is entitled to equitable tolling only if he shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" and prevented timely filing. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). See also Bryant v. Ariz. Att'y Gen., 499 F.3d 1056, 1061 (9th Cir. 2007) (emphasizing that a petitioner must establish that the extraordinary circumstances "were the cause of his untimeliness" (citation and internal quotation marks omitted)).

Petitioner has not made this showing with respect to any of the claimed impediments.

A. Episodes of Mental Illness and Alleged Dyslexia In support of his purported mental illness and dyslexia, Petitioner submitted voluminous mental health records from early 2000 to the present. The Court has reviewed these records and concludes they do not advance Petitioner's argument, particularly as to several years of equitable tolling.

A petitioner is not entitled to equitable tolling due to a mental impairment unless he meets a two-part test:

(1) First, a petitioner must show his mental impairment was an "extraordinary circumstance" beyond his control by demonstrating the ...


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