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Everette Buff v. L. Mcewan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 11, 2011

EVERETTE BUFF,
PETITIONER,
v.
L. MCEWAN, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [ECF No. ) 8]

Petitioner Everette Buff, a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus with exhibits on February 22, 2011, pursuant to 28 U.S.C. § 2254 [ECF Nos. 1, 5]. In his Petition, Buff consented to magistrate judge jurisdiction. (Pet. 16, ECF No. 1.)*fn1 In ground one, he argues that his state-appointed attorney introduced "false, forged, and altered evidence" at his parole suitability hearing. (Id. at 6.) Buff claims that this evidence denied him his right to be present at the hearing, which ultimately caused the parole board to accept a five-year parole stipulation that Buff did not authorize.

(Id. at 9-10.) As a result, Petitioner contends his Fourteenth Amendment right to due process was violated. (Id. at 6.) In ground two, Buff argues that the California Court of Appeal decision did not acknowledge the "due process implications" of his appointed attorney's actions and the parole board's subsequent decision to keep Buff in custody. (Id. at 11.)

The Court dismissed the case without prejudice and with leave to amend for Petitioner's failure to pay the five-dollar filing fee or submit an application to proceed in forma pauperis [ECF No. 3]. On February 28, 2011, Buff filed a motion to proceed in forma pauperis, and the case was reopened [ECF No. 4].

Respondent Leland McEwan filed a Motion to Dismiss Petition for Writ of Habeas Corpus, along with a Memorandum of Points and Authorities and a Notice of Lodgment on May 2, 2011 [ECF Nos. 8, 9]. McEwan argues that Buff's Petition should be dismissed because it is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). (Mot. Dismiss Attach. #1 Mem. P. & A. 3, ECF No. 8.) On May 6, 2011, Respondent filed a Notice, Consent, and Reference of a Civil Action to a Magistrate Judge [ECF No. 10]. The Petitioner did not file an opposition to Respondent's Motion to Dismiss.

The Court has reviewed the Petition and Respondent's Motion to Dismiss and attachments. Although Civil Local Rule 7.1(f) provides that the failure to oppose a motion may constitute consent to granting the motion, this Court will evaluate the merits of Respondent's arguments. S.D. Cal. Civ. R. 7.1(f)(3)(c). For the reasons stated below, the Motion to Dismiss is GRANTED.

I. FACTUAL BACKGROUND

On October 5, 1984, a jury found Buff guilty of first-degree murder, and he was sentenced to twenty-five years to life in prison. (Pet. 1-2, ECF. No. 1; See Lodgment No. 6, In re Buff, No. D057345, slip op. at 1 (Cal. Ct. App. June 9, 2010).) On January 29, 2009, the Board of Parole Hearings ("BPH") held a hearing on Buff's suitability for release on parole, at which Buff was represented by his state-appointed attorney. (Lodgment No. 4, In re Buff, No. EHC01327 (Cal. Super. Ct. Apr. 19, 2010) (order denying petition for writ of habeas corpus at 1); Lodgment No. 6, In re Buff, No. D057345, slip op. at 1.) Buff contends that he told his attorney that he wished to temporarily postpone the hearing because Petitioner was unprepared. (Lodgment No. 6, In re Buff, No. D057345, slip op. at 1.) Petitioner alleges that, instead, his attorney presented forged documents to the parole board that indicated that Buff was stipulating to another five years of incarceration. (Id.) At the hearing, the BPH accepted the stipulation, making Buff ineligible for parole for five additional years. (Pet. Attach. #1 Ex. E, at 18, ECF No. 1.)

II. PROCEDURAL BACKGROUND

On February 1, 2010, Buff filed a petition for writ of habeas corpus in the Imperial County Superior Court, which was denied on March 2, 2010. (Lodgment No. 1, Buff v. Small, No. EHC01293 (Cal. Super. Ct. filed Feb. 1, 2010) (petition for writ of habeas corpus at 1); Lodgment No. 2, In re Buff, No. EHC01293 (Cal. Super. Ct. Mar. 2, 2010) (order denying petition for writ of habeas corpus at 1-2).) He refiled his petition on March 22, 2010, in the same court, and it was denied again on April 19, 2010. (Lodgment No. 3, Buff v. Small, No. EHC01327 (Cal. Super. Ct. filed Mar. 22, 2010) (petition for writ of habeas corpus at 1); Lodgment No. 4, In re Buff, No. EHC01327 (order denying petition for writ of habeas corpus at 1-2).) Next, Buff filed a habeas petition in the California Court of Appeal for the Fourth District, Division One; it was denied on June 9, 2010. (Lodgment No. 5, Buff v. McEwan, No. D057345 (Cal. Ct. App. filed May 17, 2010) (petition for writ of habeas corpus at 1); Lodgment No. 6, In re Buff, No. D057345, slip op. at 1-2). On June 28, 2010, he filed a petition for habeas corpus relief in the California Supreme Court, which was denied on January 26, 2011. (See Lodgment No. 7, In re Buff, No. S183998 (Cal. filed June 28, 2010) (petition for writ of habeas corpus at

1); Lodgment No. 8, http://appellatecases.courtinfo.ca.gov(select "Supreme Court"; then enter supreme court case number). Buff filed his Petition for Writ of Habeas Corpus in this Court on February 22, 2011 [ECF No. 1].

III. STANDARD OF REVIEW

Buff's Petition is subject to the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 because it was filed after April 24, 1996. 28 U.S.C.A. § 2244 (West 2006); Woodford v. Garceau, 538 U.S. 202, 204 (2003) (citing Lindh v. Murphy, 521 U.S. 320, 326 (1997)). AEDPA sets forth the scope of review for federal habeas corpus claims:

The Supreme Court, a justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of the United States.

28 U.S.C.A. § 2254(a) (West 2006); see also Reed v. Farley, 512 U.S. 339, 347 (1994); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991).

To present a cognizable federal habeas corpus claim, a state prisoner must allege his conviction was obtained in violation of the Constitution or laws of the United States. 28 U.S.C.A § 2254(a). In other words, a petitioner must allege the state court violated his federal constitutional rights. Hernandez, 930 F.2d at 719; Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990); Mannhald v. Reed, 847 F.2d 576, 579 (9th Cir. 1988). Petitions challenging a parole board's decision also fall under the umbrella of habeas review. Swarthout v. Cooke, 562 U.S. __, 131 S.Ct. 859, 860 (2011) ("If the Board denies parole, the prisoner can seek judicial review in a state habeas petition.")

A federal district court does "not sit as a 'super' state supreme court" with general supervisory authority over the proper application of state law. Smith v. McCotter, 786 F.2d 697, 700 (5th Cir. 1986); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (holding that federal habeas courts must respect state court's application of state law); Jackson, 921 F.2d at 885 (concluding federal courts have no authority to review a state's application of its law). Federal courts may grant habeas relief only to correct errors of federal constitutional magnitude. Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989) (stating that federal courts are not concerned with errors of state law unless they rise to the level of a constitutional violation).

In 1996, Congress "worked substantial changes to the law of habeas corpus." Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). Amended section 2254(d) now reads:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C.A § 2254(d).

The Supreme Court, in Lockyer v. Andrade, 538 U.S. 63 (2003),

stated that "AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under section 2254(d)(1) -- whether a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 71 (citation omitted). A federal court is therefore not required to review the state court decision de novo, but may proceed directly to the reasonableness analysis under § 2254(d)(1). Id.

The "novelty" in § 2254(d)(1) is "the reference to 'Federal law, as determined by the Supreme Court of the United States.'" Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320 (1997) (emphasis in original deleted). Section 2254(d)(1) "explicitly identifies only the Supreme Court as the font of 'clearly established' rules." (Id.) "[A] state court decision may not be overturned on habeas corpus review, for example, because of a conflict with Ninth Circuit-based law." Moore, 108 F.3d at 264. "[A] writ may issue only when the state court decision is 'contrary to, or involved an unreasonable application of,' an authoritative decision of the Supreme Court." Id. (citing Childress v. Johnson, 103 F.3d 1221, 1224-26 (5th Cir. 1997); Devin v. DeTella, 101 F.3d 1206, 1208 (7th Cir. 1996); see Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996)).

Furthermore, with respect to the factual findings of the trial court, AEDPA provides:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C.A. § 2254(e)(1).

IV. DISCUSSION

Petitioner seeks habeas relief on two grounds. In ground one, he alleges that the introduction of "false, forged and altered evidence" at his parole hearing resulted in a five-year unsuitability finding. (Pet. 6, ECF. No 1.) This deprived him of his due process rights under the Fourteenth Amendment. (Id.) In particular, Buff claims he was scheduled to appear before the BPH to determine if he was suitable for parole on January 29, 2009. (Id.; see also Lodgment No. 4, In re Buff, No. EHC01327 (order denying petition for writ of habeas corpus at 1); Lodgment No. 6, In re Buff, No. D057345, slip op. at 1.)*fn2 Petitioner contends he wrote a letter to the BPH on January 4, 2009, inquiring whether he would be appointed an attorney for the parole hearing. (Pet. 6 (citing id. Attach. #1 Ex. A, at 2), ECF No. 1.) Buff asserts that one week before the hearing, his appointed attorney, Philip Osula, met with Petitioner and advised him to forego the hearing because Buff was "not prepared." (Id.)

Petitioner alleges that on January 27, 2009, he was escorted from his cell to meet with Osula prior to the scheduled parole hearing. (Id. at 7.) During the meeting, Buff claims Osula handed him a "BPH 1001(a) form" to complete. (Id.) Buff checked the section marked "Postpone Hearing" and wrote that the reasons were due to "No Access to Paperwork, Not Enough Time to Confer With Attorney." (Id.) He noticed that several boxes on the form had already been checked by someone else. (Id. (citing id. Attach. #1 Ex. D, at 11).) Specifically, the section entitled, "Not Suitable for Parole," was checked off. (Id. (citing id. Attach. #1 Ex. D, at 11).) Buff maintains that he told Osula that Petitioner was not agreeing to the five-year unsuitability stipulation; he only wanted the hearing postponed. (Id. at 7-8.)

According to Petitioner, during the hearing, Osula stipulated to a five-year unsuitability for parole, against Buff's instructions. (Id. (citing id. Attach. #1 Ex. E, at 16-17).) The Petitioner asserts Osula agreed to the stipulation and stated that Buff "[r]ecognizes the fact he's not ready for parole and he's definitely not suitable. He needs more time to be disciplinary free, get--participate in self-help groups, get a v[o]cation and [Buff] believes that five years would be sufficient for him to do so." (Id. (citing id. Attach. #1 Ex. E, at 18).)

When Buff received the 1001(a) form back, he claims it had been altered even further. (Id.) "Prisoner elects to stipulate to 5 years of unsuitability" had been added, followed by the initials "P.O." (Id. (citing id. Attach. #1 Ex. D, at 11).)

Petitioner alleges that his due process rights were violated when Osula altered the form and falsely represented to the panel that Buff was waiving his right to be present at the hearing. (Id. at 9 (citing id. Attach. #1 Exs. D at 11, E at 16).) Osula intentionally misled the BPH and deprived Petitioner of his right to participate at the parole hearing. (Id. at 10.) The Petitioner alleges that because he never waived his right to be present at the hearing, "[d]ue process demands a new hearing . . . . " (Id.)

In ground two, Petitioner challenges the California Court of Appeal's decision to deny his state habeas petition. (Id. at 11.) Buff asserts that the court of appeal failed to acknowledge the "due process implications" of Osula's actions and the Board's subsequent decision to deny Buff parole. (Id.) "Petitioner did not authorize the state appointed attorney to waive his presence at the hearing nor his right to speak and to present evidence [o]n his behalf." (Id. at 12.) Additionally, the Petitioner contends that Osula falsified the BPH 1001(a) form, which ultimately led to the Board's acceptance of the five-year stipulation. (Id.) Accordingly, Buff argues that his due process rights were violated. (Id.)

Respondent McEwan moves to dismiss the Petition as barred by the one-year statute of limitations set forth 28 U.S.C. § 2244(d). (Mot. Dismiss Attach. #1 Mem. P. & A. 3, ECF No. 8.) Respondent claims that the BPH informed Buff of the five-year stipulated denial by letter, dated February 18, 2009. (Id. (citing Pet. Attach. #1 Ex. B, at 4, ECF No. 1).) McEwan acknowledges that Buff claims he did not become aware of the stipulation until April of 2009. (Id.) Respondent alleges that "even based on this date, Buff's Petition was filed after the statute of limitations." (Id.) "Assuming Buff discovered the five-year denial on May 1, 2009, he was required to file his petition on May 1, 2010." (Id. at 3-4.) Yet, he filed his Petition on February 16, 2011, "656 days after he allegedly became aware of the five-year denial." (Id. at 4.) Finally, Respondent alleges that neither statutory nor equitable tolling is available. (Id. at 4-5.)

A. The One-Year Statute of Limitations

McEwan maintains that Buff's Petition is barred by AEDPA's

one-year statute of limitations and should be dismissed. (Mot. Dismiss Attach. #1 Mem. P. & A. 3, ECF No. 8.) The statute of limitations for federal habeas corpus petitions is set forth in AEDPA. As amended, § 2244(d) provides:

(1) 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.

28 U.S.C.A. § 2244(d)(1).

The one-year statute of limitations in 28 U.S.C. § 2244(d)(1)

applies to habeas petitions challenging denial of parole, and beings to run the day after an inmate receives notice of the parole board's decision. Redd v. McGrath, 343 F.3d 1077, 1082, 1084-85 (9th Cir. 2003); Watson v. Woodford, 247 F. App'x 938, 939 (9th Cir. 2007) (same); see also Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004) (holding that limitations period for challenging disciplinary order begins to run the day after receiving notice of the denial of inmate's appeal).

The parole hearing took place on January 29, 2009, and a letter was sent to Buff on February 18, 2009, alerting him of the five-year parole stipulation. (See Pet. Attach. #1 Ex. B, at 4, ECF No. 1.) Despite this letter, Buff alleges he "first became aware of the facts in support of [his] claim . . . on or about April 2009." (Id. Attach. #1 Ex. C, at 8.) Assuming Petitioner received notice on April 30, 2009, the statute of limitations would have begun to run on May 1, 2009. See Redd, 343 F.3d at 1084 (explaining that the one-year statute of limitations under AEDPA begins to run the day after an inmate learned of the parole board's decision). The one-year statute of limitations would have expired on April 30, 2010. See Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001) (quoting Fed. R. Civ. P. 6(a)) ("In computing any amount of time prescribed or allowed . . . by any applicable statute, the day of the act, event, or default from which the designated period of time runs shall not be included.") Buff filed his federal Petition almost a year later, on February 22, 2011. (Pet. 1, ECF No. 1.) Therefore, unless he is entitled to sufficient statutory or equitable tolling, his claims are barred by AEDPA's statute of limitations.

1. Statutory Tolling

Respondent McEwan argues that Buff is not entitled to statutory tolling of the limitation period. (Mot. Dismiss Attach. #1 Mem. P. & A. 4, ECF No. 8.) McEwan maintains that the state superior court denied Buff's habeas petition because it was not filed within a reasonable time. (Id. (citing Lodgment No. 2, In re Buff, No. EHC01293 (order denying petition at 1-2)).) The Respondent notes that Buff filed "another improper, successive petition" with the superior court and then with the state court of appeal; both were deemed untimely. (Id. (citing Lodgment No. 4, In re Buff, No. EHC01327 (order denying petition for writ of habeas corpus at 1-2); Lodgment No. 6, In re Buff, No. D057345, slip op. at 1-2).) Respondent alleges, "A petitioner is not entitled to tolling if his petition is denied as untimely by the California courts." (Id. (citing Pace, 544 U.S. at 417).) McEwan concludes that because Buff is not entitled to statutory tolling, the statute of limitations expired on May 1, 2009. (Id.)

In his Petition, Buff does not include any facts that suggest statutory tolling applies, and he has not opposed Respondent's Motion to Dismiss. (See Pet. 6-12, ECF No. 1.)

The statute of limitations period under AEDPA is tolled during periods in which a petitioner is properly seeking collateral review of a pending state court judgment. Specifically, 28 U.S.C. § 2244(d) states, "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C.A. § 2244(d)(2); see also Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). "[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) (explaining that typical filing requirements include all relevant time limits). "When a post-conviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)." Pace, 544 U.S. at 414 (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)); see also Zepeda v. Walker, 581 F.3d 1013, 1018 (9th Cir. 2009).

The interval between the disposition of one state petition and the filing of another may be tolled under "interval tolling." Carey, 536 U.S. at 223. "[T]he AEDPA statute of limitations is tolled for 'all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.'" Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (quoting Barnett v. Lamaster, 167 F.3d 1321, 1323 (10th Cir. 1999)); see also Carey, 536 U.S. at 219-22. The statute of limitations is tolled from the time a petitioner's first state habeas petition is filed until state collateral review is concluded, but it is not tolled before the first state collateral challenge is filed. Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. 2007) (citing Nino, 183 F.3d at 1006).

Even if Buff did not learn the result of his parole hearing before April 30, 2009, the statute of limitations in his case began to run on May 1, 2009. Yet, he did not file his first state habeas petition until February 1, 2010, and it was denied as untimely on March 2, 2010. (Lodgment No. 1, Buff v. Small, No. EHC01293 (petition for writ of habeas corpus at 1); Lodgment No. 2, In re Buff, No. EHC01293 (order denying petition at 1-2) ("Petitioner has waited almost a year to file his petition after notice of his waiver. Petitioner failed to raise his claims in a timely fashion").) Buff filed another habeas petition in superior court, which was also denied on April 19, 2010. (Lodgment No. 3, Buff v. Small, No. EHC01327 (petition for writ of habeas corpus at 1); Lodgment No. 4, In re Buff, No. EHC01327 (order denying petition for writ of habeas corpus at 1-2) ("The petition is denied as a repetitive petition that does not allege a change in the applicable facts or law.").) A subsequent habeas petition filed with the appellate court was also denied as untimely. (See Lodgment No. 6, In re Buff, No. D057345, slip op. at 1-2 ("Buff's petition is clearly untimely.").) Because Buff's state habeas petitions were not "properly filed," he is not eligible for statutory tolling under § 2244(d)(2). See Pace, 544 U.S. at 417.

Interval tolling only applies to petitions that are "properly" filed in state court. 28 U.S.C. § 2244(d)(2); Nino, 183 F.3d at 1006. Petitions that are untimely are not "properly" filed. Pace, 544 U.S. at 417. Because Buff's state petitions were untimely, interval tolling is not available. (See Lodgment No. 2, In re Buff, No. EHC01293 (order denying petition at 1-2); Lodgment No. 4, In re Buff, No. EHC01327 (order denying petition for writ of habeas corpus at 1-2); Lodgment No. 6, In re Buff, No. D057345, slip op. at 1; Pace, 544 U.S. at 417.

2. Equitable Tolling

Equitable tolling of the statute of limitations is appropriate when "'extraordinary circumstances beyond a prisoner's control make it impossible'" to file a timely petition. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Brambles v. Duncan, 330 F.3d 1197, 1202 (9th Cir. 2003)); see also Stillman v. LaMarque, 319 F.3d 1199, 1202 (9th Cir. 2003). "[A] litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418 (citations omitted); see also Lawrence v. Florida, 549 U.S. 327, 335 (2007); Rouse v. U.S. Dep't of State, 548 F.3d 871, 878-79 (9th Cir. 2008); Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005).

"'[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.'" Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000).

The failure to file a timely petition must be the result of external forces, not the result of the petitioner's lack of diligence. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). "Determining whether equitable tolling is warranted is a 'fact-specific inquiry.'" Spitsyn, 345 F.3d at 799 (quoting Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)).

McEwan argues that Petitioner has not demonstrated that extraordinary circumstances beyond his control made it impossible to file his Petition on time. (Mot. Dismiss Attach. #1 Mem. P. & A. 4, ECF No. 8.) Respondent dismisses Buff's contention that it took a year to find an inmate to draft his first state court petition as insufficient to entitle Buff to equitable tolling. (Id. at 5.) Petitioner is a layperson unlearned in the law. (Id. (citing Pet. Attach. #1 Ex. C, at 8, ECF No. 1).) Yet, McEwan argues, "Most inmates are 'laypersons unlearned in the law.'" (Id.) Accordingly, McEwan maintains, the federal habeas Petition should be dismissed. (Id.)

Buff alleges he initially "did not appreciate the legal significance" of the events that occurred at his parole hearing. (Pet. Attach. #1 Ex. C, at 8, ECF No. 1.) In April of 2009, another prisoner alerted Buff that he had a potential claim; he realized he should "seek assistance in challenging the parole board's finding." (Id. Attach. #1 Ex. C, at 8-9.) Petitioner claims he "exhausted every avenue available to [him] at Calipatria . . . to find an inmate who was qualified and willing to assist [him] with the appropriate legal challenge to the board's findings and [his] attorney's acts or omissions." (Id. Attach. #1 Ex. C, at 9.) Buff asserts he was unable to obtain assistance until January of 2010, when another inmate agreed to prepare the Petition on Buff's behalf. (Id. Attach. #1 Ex. C, at 9.)

"[I]t is well settled that inexperience and ignorance of the law are insufficient to constitute extraordinary circumstances[]" to justify equitable tolling. Furr v. Small, No. CV 08-6870 ODW (FMO), 2009 WL 1598419, at *5 (C.D. Cal. June 4, 2009) (citations omitted); see also Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling."); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) ("Ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing."); Hines v. Runnell, 2003 U.S. Dist. LEXIS 7662 at *6 (N.D. Cal. Apr. 30, 2003); Fisher v. Ramirez-Palmer, 219 F. Supp. 2d 1076, 1081 (E.D. Cal. 2002).

The Petitioner argues that because he lacks a legal education, he was initially unaware that he could state a habeas claim, and when he understood that he had a viable claim, Buff was unable to draft the Petition himself. (Pet. Attach. #1 Ex. C, at 8.) These statements do not establish extraordinary circumstances. Buff's "lack of legal sophistication" is not enough to entitle him to equitable tolling. Raspberry v. Garcia, 448 F.3d at 1154.

V. CONCLUSION

Because he is not entitled to statutory or equitable tolling, Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus as barred by AEDPA's one-year statute of limitations is GRANTED.

cc: All parties of record


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