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Robert Howard Richardson v. A. C. Newland

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 26, 2012

ROBERT HOWARD RICHARDSON, PETITIONER,
v.
A. C. NEWLAND, ET AL., RESPONDENTS.

FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court are respondents' motion to dismiss the pending federal habeas petition as untimely and petitioner's motion for equitable tolling of the applicable one-year statute of limitations.

I. Background

Before addressing the merits of the parties' motions, the court will briefly summarize the lengthy procedural history of this federal habeas corpus action.

On August 31, 1992, following his conviction on charges of first degree murder with personal use of a firearm, petitioner was sentenced in Plumas County Superior Court to a term of 25 years to life in state prison, plus a consecutive five year term of imprisonment on a firearm enhancement. (June 11, 1999 Amended Petition (hereinafter "Am. Pet.") at 1.)

On October 21, 1993, petitioner's conviction was affirmed on appeal by the California Court of Appeal for the Third Appellate District. (Id.; Resp't Aug. 13, 1999 Mot. to Dismiss (hereinafter MTD) at 2.) On December 1, 1993, petitioner filed a petition for review in the California Supreme Court, claiming that the trial court had erred when it: (1) failed to sever petitioner's trial from that of his co-defendant; (2) admitted his co-defendant's extra-judicial statements into evidence at petitioner's trial; (3) admitted petitioner's confession into evidence at his trial; (4) denied petitioner's motion for a change of venue; and (5) failed to conduct individualized voir dire during jury selection. (MTD, Ex. A.) That petition for review was denied on January 19, 1994. (Am. Pet. at 2; MTD at 2.)

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted. Thereafter, on December 13, 1996, petitioner filed a petition for writ of habeas corpus in the Plumas County Superior Court, claiming that his trial counsel had rendered ineffective assistance. (Am. Pet. at 2; Answer, Vol. III, Ex. 12.) That petition was denied on May 5, 1997 for failure to present a "prima facie case" and because the court found that "[petitioner's] claims are procedurally barred, as the facts upon which there [sic] were based were known to him at the time of his appeal, and some of his claims were presented and rejected on appeal." (Am. Pet. at 2; Answer, Vol. III, Ex. 13 at 3.)

On May 23, 1997, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Id.) That petition was denied on June 5, 1997.*fn1 (Id.) On June 26, 1997, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, raising ineffective assistance of counsel claims. (Answer, Vol. III, Ex. 15.) That petition was summarily denied on November 25, 1997. (Id.)

On December 12, 1997, petitioner filed his original federal petition for writ of habeas corpus in this court. After petitioner's motion for leave to amend was granted, an amended habeas petition was filed on June 11, 1999. On August 6, 1999, respondents filed a motion to dismiss the amended federal petition contending, among other things, that petitioner's claims were barred by the one-year AEDPA statute of limitations contained in 28 U.S.C. § 2244(d)(1). On October 4, 1999, petitioner filed a related motion for equitable tolling of the statute of limitations.*fn2 On March 3, 2000, this court recommended that petitioner's motion for equitable tolling be granted and that respondent's motion to dismiss be denied. (Doc. No. 47.) By order dated July 31, 2000, United States District Judge William B. Shubb adopted those findings and recommendations, but also found that petitioner was entitled to statutory tolling of the AEDPA statute of limitations, and issued an order granting petitioner's motion for tolling and denying respondents' motion to dismiss. (Doc. No. 50.) On August 18, 2000, respondents filed a motion for reconsideration of the July 31, 2000 order. (Doc. No. 51.) On September 13, 2000, the motion for reconsideration was denied. (Doc. No. 57) In his order denying reconsideration, Judge Shubb clarified that he had found that petitioner was entitled to statutory tolling of the AEDPA statute of limitations and that "[b]ecause the court finds that statutory tolling applies, it does not reach the issue of equitable tolling." (Id. at 2 n.1.)

On September 13, 2004, this court filed findings and recommendations recommending that petitioner's application for a writ of habeas corpus be granted in part and denied in part. (Doc. No. 73.) On October 26, 2004, Judge Shubb adopted those findings and recommendations and judgment was entered accordingly. (Doc. No. 76.) On November 5, 2004, the district court entered an amended order adopting the September 13, 2004 findings and recommendations. (Doc. No. 80.)

On November 5, 2004, respondents filed an appeal of both the October 26, 2004 judgment and the September 13, 2000 order denying the motion to dismiss the petition as untimely. On April 10, 2006, the United States Court of Appeals for the Ninth Circuit issued an order reversing the district court's order denying respondents' motion to dismiss. (Doc. No. 90.) Citing the then-recent decisions in Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) and Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005), the Ninth Circuit concluded that petitioner was not entitled to statutory tolling of the AEDPA statute of limitations during the time his state habeas petitions were pending because the state courts had denied the petitions both on the merits and as untimely and therefore they were not "properly filed" for purposes of statutory tolling. (Ninth Circuit Memorandum dated April 10, 2006 (Doc. No. 90), at 2.) The Ninth Circuit therefore remanded petitioner's claim of entitlement to equitable tolling of the AEDPA statute of limitations to this court "for further proceedings." (Id.)*fn3

A status conference was held on June 2, 2006. The parties were directed to file briefing addressing whether petitioner was entitled to equitable tolling of the AEDPA statute of limitations. On July 17, 2006, petitioner filed his responsive brief regarding equitable tolling. (Doc. No. 104.) On August 14, 2006, respondent filed his responsive brief (Doc. No. 105) , and on September 5, 2006 and October 6, 2006, petitioner filed reply briefs. (Doc. Nos. 106 & 109.)

On October 10, 2006, a hearing was held on petitioner's claim of entitlement to equitable tolling of the statute of limitations. After the hearing, the parties were allowed to file additional letter briefs with citations to cases they deemed relevant to the equitable tolling issue before the court. On October 18, 2006, respondent filed his responsive letter brief, and on October 19, 2006, petitioner filed his responsive brief. (Doc. Nos. 112 & 113.)

On February 8, 2008, the Ninth Circuit Court of Appeals issued its decision in Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008) in which the court held that a federal habeas petitioner was entitled to equitable tolling of the AEDPA statute of limitations where he had waited to file his petition in reliance on Ninth Circuit precedent which was subsequently overruled by the U.S. Supreme Court. On February 12, 2008, petitioner filed a supplemental brief addressing the Harris decision and its potential impact upon resolution of the issue pending before the court in this case. (Doc. No. 119.) On March 25, 2008, respondent filed a response to petitioner's supplemental brief (Doc. No. 123), and on April 1, 2008, petitioner filed a reply. (Doc. No. 124.)

II. Applicable Legal Standards

Because this action was filed after April 26, 1996, the provisions of the AEDPA are applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244 provides as follows:

(d) (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.

(2) 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.

As indicated above, in light of the Ninth Circuit's Memorandum of April 10, 2006, petitioner has moved for equitable tolling of the applicable one-year statute of limitations. The United States Supreme Court has confirmed that the AEDPA statute of limitations contained in § 2244(d) 'is subject to equitable tolling in appropriate cases." Holland v. Florida, ___ U.S. ___, ___, 130 S. Ct. 2549, 2560 (2010). See also Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011); Lakey v. Hickman, 633 F.3d 782, 784 (9th Cir. 2011); Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010).*fn4 Indeed, because § 2244(d) is not jurisdictional, it is "subject to a 'rebuttable presumption' in favor of 'equitable tolling'" Holland, 130 S. Ct. at 2560 (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990)). See also Lee v. Lampert, 653 F.3d 929, 933 (9th Cir. 2011) (en banc).

Nonetheless, "a 'petitioner' is 'entitled to equitable tolling' only where 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." Holland, 130 S. Ct. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).*fn5 See also Doe, 661 F.3d at 1011; Lakey, 633 F.3d at 784; Porter, 620 F.3d at 959; Harris, 515 F.3d at 1054; Stillman v. LaMarque, 319 F.3d 1199, 1202 (9th Cir. 2003). Thus, equitable tolling of the AEDPA statute of limitations is appropriate only when external forces beyond his direct control, rather than a petitioner's lack of diligence or his counsel's mistake*fn6 , account for the failure to file a timely petition. See Velasquez v. Kirkland, 639 F.3d 964, 969 (9th Cir. 2011); Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (The petitioner must show that "the extraordinary circumstances made it impossible to file the petition on time."); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). To meet this standard it must be demonstrated that some extraordinary circumstance stood in his way of filing a timely federal habeas petition and that any such extraordinary circumstance was the cause of his late-filed petition. See Lakey, 633 F.3d at 786; Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007); Allen v. Lewis, 255 F.3d 798, 800-01 (9th Cir. 2001). The petitioner bears the burden of demonstrating the existence of grounds for equitable tolling. Pace, 544 U.S. at 418; Doe, 661 F.3d at 1011; Roberts v. Marshall, 627 F.3d 768, 772 (9th Cir. 2010); Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005).

Courts are expected to "take seriously Congress's desire to accelerate the federal habeas process." Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1289 (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). See also Lakey, 633 F.3d at 786 ("The high threshold of extraordinary circumstances is necessary 'lest the exceptions swallow the rule.'"); Porter, 620 F.3d at 959; Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) ("[T]he threshold necessary to trigger equitable tolling [under the AEDPA] is very high, lest the exception swallow the rule."); Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002) (describing the Ninth Circuit's standard as setting a "high hurdle" to the application of equitable tolling). To this end, "the circumstances of a case must be 'extraordinary' before equitable tolling can be applied[.]" Holland, 130 S. Ct. at 2564. Whether a party is entitled to equitable tolling "turns on the facts and circumstances of a particular case." Spitsyn, 345 F.3d at 801 (quoting Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999)). See also Doe, 661 F.3d at 1012.

III. The Arguments of the Parties

A. Petitioner

As described above, petitioner's direct appeal of his underlying judgment of conviction was completed on January 19, 1994, when the California Supreme Court denied his petition for review. On December 13, 1996, approximately eight months after the AEDPA was enacted but nearly three years after his judgment of conviction had become final, petitioner first filed an exhaustion petition in the Plumas County Superior Court alleging that he had received ineffective assistance of counsel in connection with the proceeding that resulted in his conviction. Despite his delay in seeking habeas relief in state court, petitioner now argues that he acted "diligently and in good faith" and "in accord with the law as it was in 1996-1997" to properly exhaust all of his claims in state court during that time period. (Petitioner's July 17, 2006 Brief Regarding Equitable Tolling (Doc. No. 104) at 7.)

Under California law, a state habeas petition "must be filed within a reasonable time after the petitioner or counsel knew, or with due diligence should have known, the facts underlying the claim as well as the legal basis of the claim." In re Harris, 5 Cal.4th 813, 828 n.7 (1993). See also Walker v. Martin, ___U.S.___, 131 S. Ct. 1120, 1124 (2011) ("California does not employ fixed statutory deadlines to determine the timeliness of a state prisoner's petition for habeas corpus."); Evans v. Chavis, 546 U.S. 189, 202 (2006) (Justice Stevens, concurring) ("And the State Supreme Court apparently may exercise its jurisdiction to decide the merits of a petition for habeas corpus at any time whatsoever.") Justices of the United States Supreme Court have observed that this equitable concept under California law is intended to be flexible, making it uncertain and highly unpredictable whether California courts would find any particular habeas petition timely filed under the rule. See Carey v. Saffold, 536 U.S. 214, 235 (2002) (Justice Kennedy, dissenting). Based upon this recognized flexibility, petitioner argues that because there was no "clear precedent" establishing when a habeas petition is timely filed under California law, his delay of nearly three years in filing his exhaustion petition in the Plumas County Superior Court was not unreasonable. (Doc. No. 104 at 7.) In this vein, petitioner contends that the uncertainty of California law regarding when a habeas petition is timely filed constitutes an extraordinary circumstance warranting equitable tolling of the AEDPA statute of limitations for the filing of a federal habeas application in his case. (Id.)

Petitioner also explains that after the AEDPA was enacted he consulted a"jail-house lawyer" to "assist him with the research and preparation of a pro se state habeas corpus petition to preserve his right to seek federal review of his conviction." (Petitioner's September 5, 2006 "Reply Brief Regarding Equitable Tolling" (Doc. No. 106) at 9.) Petitioner notes that at the time of the AEDPA's passage in 1996, there was no federal "stay and abeyance" procedure available to him.*fn7 Therefore, petitioner asserts, he could not file a protective federal habeas petition until all of his habeas claims had been exhausted in state court. Petitioner also observes that once he filed his first state exhaustion petition in the Plumas County Superior Court on December 13, 1996, each of his subsequent habeas filings were made within three weeks after the denial of the previously filed habeas petition, thereby reflecting his diligent pursuit of habeas relief. He also asserts that it was not until long after he filed his initial state habeas petition that the federal courts began to define such terms as "properly filed" and "undue delay" with respect to statute of limitations issues arising under the AEDPA. In this vein, petitioner's counsel argues that "it was this uncertainty in the law that constituted an extraordinary circumstance entitling Mr. Richardson's petition to equitable tolling." (Doc. No. 104 at 10.)

Finally, petitioner argues that the California courts "affirmatively misled" him into believing he had complied with all necessary filing requirements by stamping his initial habeas petition "filed," ordering that an answer to the petition be filed, communicating several times with petitioner prior to the issuance of rulings, and not notifying him in a timely manner of any improprieties in his filings with the court. Thus, petitioner argues that "California's unclear and inconsistently-applied timeliness 'rules' are a state impediment which interfered with petitioner's ability to timely file a federal habeas corpus petition and that this uncertainty in the law at the time that petitioner was pursuing his state habeas corpus remedies constituted an 'extraordinary circumstance' warranting equitable tolling." (Petitioner's letter brief filed October 19, 2006 (Doc. No. 115), at 1.) Throughout his argument, petitioner's counsel refers to the undersigned's findings and recommendations filed on March 3, 2000 (Doc. No. 47), in which the undersigned concluded that petitioner was entitled to equitable tolling because he had no reason to believe that his first state habeas petition would be deemed untimely under California law and diligently and properly sought to exhaust his habeas claims in state court before filing his federal petition. (See Doc. No. 47 at 5-8.)*fn8

B. Respondent

Respondent argues that the same delay that the Ninth Circuit found to prevent petitioner from being eligible for statutory tolling of the AEDPA statute of limitations also precludes equitable tolling under the circumstances presented here. (Respondent's August 14, 2006 Brief Regarding Equitable Tolling (Doc. No. 105), at 4-6.) Respondent also contends that petitioner's lengthy delay in filing his first petition establishes that he was not diligent in seeking habeas relief from the state courts either before or after passage of the AEDPA. (Id. at 4-9.)

C. Petitioner's Reply

In reply, petitioner contends that the mere fact that statutory tolling of the AEDPA limitations has been found to be unavailable to him because of his delay does not mean that he has not been diligently pursuing habeas relief in state court for purposes of the equitable tolling of the AEDPA statute of limitations. Petitioner emphasizes that the Ninth Circuit did not find that he had not been diligent in pursuing his habeas claims in state court. Rather, he observes, the Ninth Circuit remanded the matter to this court to make that determination. Petitioner also argues that his actions should not be judged with 20-20 hindsight, noting that he did not have the benefit of court decisions rendered after he began attempting to exhaust his habeas claims in state court.

IV. Analysis

The essential facts for disposition of both respondents' motion to dismiss and petitioner's motion for equitable tolling may be briefly summarized as follows. Petitioner's direct appeal from his judgment of conviction ended on January 19, 1994, when the California Supreme Court denied his petition for review. Petitioner had not pursued any collateral challenge at the time the AEDPA was enacted on April 24, 1996, some two years and three months after his judgment of conviction had been entered. Upon learning of the existence of the AEDPA, petitioner asked another inmate, a so-called jailhouse lawyer, to help him file a petition for writ of habeas corpus in state court.*fn9 Eight months later, and approximately two years and eleven months after his judgment of conviction had become final, petitioner first sought habeas relief by filing a petition with the Plumas County Superior Court.

The AEDPA one-year statute of limitations for the seeking of federal habeas relief by petitioner began to run on April 24, 1996. See Calderon (Beeler), 128 F.3d at 1287 (holding that the AEDPA statute of limitations could not begin to run against a state prisoner who had already completed the direct review process until the enactment of the AEDPA on April 24, 1996). As the Ninth Circuit has previously held in this case, because petitioner's first state habeas application was dismissed pursuant to California's untimeliness rule, it was not "properly filed" and could not serve to statutorily toll the AEDPA statute of limitations. Richardson v. Newland, Case No. 04-17255, 171 Fed. Appx. 156, at *1(9th Cir. Mar. 15, 2006) (citing Pace, 544 U.S. at 417). See also White v. Martel, 601 F.3d 882, 883 (9th Cir.), cert. denied ___U.S.___, 131 S. Ct. 332 (2010); Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir. 2005). The statute of limitations for petitioner's filing of a federal habeas petition therefore continued to run uninterrupted until it expired on April 23, 1997.*fn10

Under this calculation the federal habeas petition, filed with this court on December 12, 1997, was submitted almost eight months after the statute of limitations for doing so had expired. Therefore, unless petitioner is entitled to equitable tolling of the AEDPA statute of limitations, his federal petition is time-barred.

The availability of equitable tolling of the AEDPA statute of limitations in this case must begin with a consideration of the U.S. Supreme Court's decision in Pace. There, the petitioner had waited four years after his post-conviction claims were rejected by the Pennsylvania Supreme Court, and seven months after the AEDPA was enacted, to file another state post-conviction petition. 544 U.S. at 410. Five months after receiving a decision denying relief from the state's high court, he sought federal habeas relief. Id. at 419. The petitioner argued that he satisfied the extraordinary circumstance test for equitable tolling of the federal statute of limitations because at the time he sought relief the Third Circuit Court of Appeal had held that a petitioner was required to exhaust his claims for relief in state court, even if it was unlikely the state court would reach the merits of those claims and, in any event, state law made it appear he might obtain relief despite the untimeliness of his state petition. Id. at 418. As petitioner does in this case, the petitioner in Pace argued that he had relied to his detriment on state law in pursuing relief which appeared potentially available, as his time for seeking federal habeas relief "slipped away." Id. Confronted with this circumstance the United States Supreme Court concluded that even if it were to accept petitioner's assertions, he was still not entitled to equitable tolling of the AEDPA statute of limitations because he had failed to demonstrate diligence in asserting his claims. In this regard, the court explained,

Petitioner waited years, without any valid justification, to assert these claims in his [post-conviction] petition. Had petitioner advanced his claims within a reasonable time of their availability, he would not now be facing any time problem, state or federal. And not only did petitioner sit on his rights for years before he filed his [state] petition, but he also sat on them for five more months after his [state] proceedings became final before deciding to seek relief in federal court. (citation omitted.) Under long-established principles, petitioner's lack of diligence precludes equity's operation.

Id. at 419. (emphasis in original.)

In the years since the Supreme Court's decision in Pace, the Ninth Circuit has found relatively few circumstances warranting equitable tolling of the AEDPA statute of limitations. See e.g. Doe, 661 F.3d at 1015 (Equitable tolling was warranted where petitioner's attorney "finally informed him that no petition was forthcoming after four years of representations to the contrary and then delayed six months in returning [petitioner's] files" and petitioner filed his federal petition ten days later); Bills v. Clark, 628 F.3d 1092, 1098-99 (9th Cir. 2010) (equitable tolling may be warranted where "mental impairment so severe that the petitioner was unable personally either to understand the need to timely file or prepare a habeas petition, and that impairment made it impossible under the totality of the circumstances to meet the filing deadline despite petitioner's diligence"); Harris, 515 F.3d at 1054--57 (petitioner entitled to equitable tolling because he demonstrated that in determining when to file a federal petition he had relied on the Ninth Circuit's holding in Dictado that untimely state petitions were properly filed for purpose of § 2244(d), which holding was subsequently overruled in Pace); Jefferson v. Budge, 419 F.3d 1013, 1014-17 (9th Cir. 2005) (petitioner was entitled to equitable tolling because district court dismissed his mixed petition without giving him the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition so as to present only exhausted claims); Spitsyn v. Moore, 345 F.3d 796, 800--02 (9th Cir. 2003) (equitable tolling was available even in a non-capital case where the petitioner's attorney did nothing, was completely unresponsive, and failed to return the petitioner's file to him until after the statute of limitations for seeking federal habeas relief had expired); Smith v. Ratelle, 323

F.3d 813, 819 (9th Cir. 2003) (petitioner was entitled to equitable tolling because the district court erroneously dismissed his earlier, timely filed habeas petition without first giving him an opportunity to file an amended petition as an alternative to dismissal for failure to properly exhaust all of his claims in state court); Corjasso v. Ayers, 278 F.3d 874, 877--79 (9th Cir. 2002) (equitable tolling warranted where the district court improperly dismissed a timely petition on technical grounds and then lost the body of the timely filed petition, thereby causing the federal petition to be untimely); Miles, 187 F.3d at 1107 (equitable tolling available where petitioner turned petition over to prison officials before the statute of limitations had expired but a delay in mailing caused the petition to be untimely received); Beeler, 128 F.3d at 1289 (equitable tolling available in situation where petitioner's lead counsel withdraws and replacement counsel needs time to become familiar with case).

In this case, petitioner asserts that he exercised diligence in pursuing his claims for habeas relief because shortly after he learned about the passage of the AEDPA he sought the assistance of a jail house lawyer, filed his first state exhaustion petition eight months later, and then diligently pursued his claims in both state and federal court. However, petitioner has not adequately explained why it took him eight months after becoming aware of the AEDPA to file his first state habeas petition, nor has he explained why he could not file that state petition himself without requiring assistance. Cf. Johnson v. United States, 544 U.S. 295, 311 (2005) (a petitioner's pro se status and lack of legal sophistication, on its own, does not constitute an extraordinary circumstance warranting equitable tolling); 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").

Even putting aside petitioner's failure to adequately explain his delay, the Supreme Court in Pace required that a petitioner pursue his rights diligently at all times prior to the filing of a federal habeas action. Thus, the petitioner in Pace was faulted by the Supreme Court for his delay in pursuing habeas relief both before and after the passage of the AEDPA. 544 U.S. at 410-11, 419. See also Johnson, 544 U.S. at 311 (finding that petitioner did not diligently pursue his claims where he did not commence state post-conviction proceedings until three years after his judgment of conviction was entered and twenty-one months after the AEDPA's effective date); Satterfield v. Johnson, 434 F.3d 185, 196 (3rd Cir. 2006) (lack of diligence found where before the AEDPA statute of limitations went into effect the petitioner waited nearly a year to initiate the process of petitioning for relief and took more than eight months following the dismissal of his state court petition to file his federal habeas petition); LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (The obligation to act diligently "does not pertain solely to the filing of the federal petition, rather it is an obligation that exists during the period appellant is exhausting state court remedies as well."); Neverson v. Farquharson, 366 F.3d 32, 43 (1st Cir. 2004) (equitable tolling denied because of a lack of diligence where petitioner did not bring any collateral challenge (state or federal) to his conviction until three years after his direct appeal was decided, did not do so until four months after the AEDPA was enacted, offered no justification for this total delay of nearly three years, and most of his habeas claims did not rely on alleged newly discovered evidence); Delaney v. Matesanz, 264 F.3d 7, 14 (1st Cir. 2001) (equitable tolling denied where petitioner waited over two years after his judgment of conviction became final and ten months after the AEDPA's effective date to file his first federal habeas petition and did nothing during that period to exhaust state remedies as to the ineffective assistance of counsel claims he sought to present). In other words, a petitioner seeking equitable tolling of the AEDPA statute of limitations must demonstrate that he diligently pursued his rights for the entire time following the underlying judgment of conviction becoming final.

Here, petitioner has failed to make that showing. The basis for petitioner's claims of ineffective assistance of counsel were known to him during or shortly after his trial. However, he waited almost two and a half years after his conviction became final to begin any effort to exhaust those claims in state court in anticipation of the filing of a federal habeas petition. Petitioner offers no justification for his delay, nor does he explain what he was doing to pursue his claims in state court between the date his direct appeal process ended and the passage of AEDPA. Apparently, petitioner failed to conduct any research, consult any person for help, obtain habeas forms, or engage in any efforts to marshal the facts or to undertake investigation of his potential ineffective assistance of counsel claims during that period of time. In Pace, the Supreme Court made clear that such inaction prevents the granting of equitable tolling of the AEDPA statute of limitations. 544 U.S. at 418-19. See also Roy v. Lampert, 465 F.3d 964, 972 n.5 (9th Cir. 2006) ("[T]he Supreme Court refused to recognize an equitable tolling claim in Pace not just because of the delay between the state post-conviction and federal habeas stages, but also because of the earlier, more egregious delay.") Here, if petitioner had brought his first collateral attack upon his judgment of conviction in state court during this two years and three months of unexplained delay, he could easily have exhausted his claims in state court and filed a perfected habeas petition in federal court before the statute of limitations for doing so had expired. Even assuming arguendo that petitioner was found to have exercised diligence after he learned of the passage of AEDPA (despite the eight month delay in filing his first habeas application after learning of the AEDPA), his lack of diligence in pursuing his claims during the preceding two and a half years precludes the application of equitable tolling here. Id. at 418. As in Pace, a delay of several years before acting, without any valid justification, reflects a lack of diligence which "precludes equity's operation." Id. at 419. See also Roy, 465 F.3d at 972 n. 5. This is true regardless of how the state court would have viewed this period of inaction. Id. at 418-19.

Petitioner explains that he did not file an earlier state exhaustion petition because he was relying on California law, which permitted a habeas petition to be considered timely so long as it was filed within a "reasonable time." He argues that the uncertainty of California law in this regard was an "extraordinary circumstance" which entitles him to equitable tolling of the AEDPA statute of limitations. Even if this argument were found persuasive however, petitioner must also establish that this extraordinary circumstance made it "impossible" to file his petition on time, Harris, 515 F.3d at 1054, or that the extraordinary circumstance "stood in his way" of doing so. Pace, 544 U.S. at 418. See also Lakey, 633 F.3d at 786; Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) ("The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness . . . and that the extraordinary circumstances made it impossible to file a petition on time."). He has not done so.

The fact that California law provides for a flexible statute of limitations with respect to seeking state habeas relief did not prevent petitioner from filing a timely federal habeas petition, nor did it stand in his way of doing so. Rather, petitioner chose a course of inaction for over two years after his judgment of conviction was affirmed on appeal. Doing nothing in hope that a state habeas petition filed years later will be deemed timely by a state court in the exercise of its discretion, is not the exercise of due diligence. Pace, 544 U.S. at 418-19. See also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir. 2009) ("Waldron-Ramsey's strategy to wait 340 days to file, in the hopes that any ambiguities [in the law] would ultimately be resolved in his favor, is the kind of 'oversight, miscalculation or negligence' for which equitable tolling is not appropriate."); Ferguson, 321 F.3d at 823 (It is unreasonable for a federal habeas petitioner to rely on a state statute of limitations rather than the AEDPA's statute of limitations.")

Put another way, the flexibility provided by California law with respect to the time for seeking state habeas relief might have prevented petitioner from realizing that his delay would later work to his detriment, but it does not explain his delay in seeking state habeas relief in the first place. There is no evidence in the record that petitioner was misled or tricked, or that anything (or anyone) actually "stood in his way," Pace, 544 U.S. at 418, or otherwise prevented him from asserting his claims to relief.*fn11 To the contrary, if he had wanted to, petitioner could have sought state habeas relief immediately after his judgment of conviction became final. Nor is there any evidence before this court that petitioner made a tactical decision to delay filing a state or federal habeas petition in reliance on California law. Rather, it appears that petitioner simply hoped that the state courts would find his habeas petition timely if he eventually decided to file one.

"The purpose of requiring habeas petitioners to demonstrate diligence in order to be entitled to . . . equitable tolling is to ensure that the extraordinary circumstances faced by petitioners . . . -- and not their lack of diligence -- were the cause of the tardiness of their federal habeas petitions." Roy, 465 F.3d at 973. See also Spitsyn, 345 F.3d at 802 ("'[I]f the person seeking equitable tolling has not exercised reasonable diligence in attempting to file, after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken.' [citation omitted]"). Because the "extraordinary circumstance" that petitioner claims here (the uncertainty caused by the flexibility of California law) was in existence at all relevant times, petitioner should have been diligently pursuing his claims for post-conviction relief in state court soon after his judgment of conviction became final. His failure to do so broke the "link of causation between the extraordinary circumstances" and petitioner's failure to file. Spitsyn, 345 F.3d at 802. Cf. Doe, 661 F.3d at 1015 (petitioner entitled to equitable tolling "for his diligence" in filing his petition within ten days of the return of his files once his attorney's deceit became known); Roy, 465 F.3d at 970 (petitioners exercised diligence where they alleged specific efforts pursued in order to file habeas petitions and filed their claims within a reasonable period of time after the extraordinary circumstances were removed). In short, here, petitioner has not shown either due diligence on his part or that extraordinary circumstances prevented him from filing (or made it impossible for him to file) his federal habeas petition on time.

Petitioner is correct that in the Harris decision the Ninth Circuit granted equitable tolling to the petitioner who had relied on the later-rejected holding in Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001) while undertaking a good faith and diligent effort to exhaust his federal claims in state court, only to discover years later at the end of that process that his state post-conviction petition was deemed not properly filed under Pace and therefore did not operate to toll the AEDPA statute of limitations.*fn12 Harris, 515 F.3d at 1054. However, the holding in Harris does not aid petitioner in this case for several reasons. First, the Ninth Circuit found that the petitioner in Harris was diligent in pursuing his state habeas claims, with any eye to filing a timely federal petition. 515 F.3d at 1053.*fn13 In contrast, here, petitioner filed his first state habeas petition nearly three years after his conviction became final and appeared disinterested in pursuing any habeas claims apparently until he learned of the AEDPA. Moreover, in Harris, equitable tolling was warranted because the petitioner had acted in good-faith reliance on then-existing Ninth Circuit precedent in making a tactical decision to delay filing his federal habeas corpus petition while diligently pursuing habeas relief in state court. Id. at 1055. Here, petitioner cannot be said to have affirmatively relied on any provision of law or legal holding to guide a diligent pursuit of exhaustion. See Lakey, 633 F.3d at 787 (""Lakey does not set forth any facts suggesting similar reliance on our prior precedent.") Rather, petitioner waited without apparent plan or justification to take any action until two years and three months had passed.*fn14 Finally, the petitioner's failure to file a timely federal petition in Harris was "not the result of oversight, miscalculation or negligence on his part, all of which would preclude the application of equitable tolling." Id. at 1055, 1057 ("Harris relied on controlling circuit precedent, rather than an ambiguity in the law"). As discussed above, petitioner's failure to file a timely federal petition was due largely to his inaction for the more than two years prior to the enactment of the AEDPA, rather than on his reliance on any statutory provision or legal holding to help him determine how much time he had left in which to seek habeas relief.

The court therefore is compelled to conclude that petitioner is not entitled to equitable tolling of the AEDPA statute of limitations because he did not exercise diligence, as that term has subsequently come to be defined, in pursuing his claims for federal habeas relief.*fn15

As the Supreme Court stated in Pace, "[h]ad petitioner advanced his claims within a reasonable time of their availability, he would not now be facing any time problem." 544 U.S. at 419. See also Waldron-Ramsey, 556 F.3d at 1013 ("Because we hold that Waldron-Ramsey was not diligent in the filing of his federal habeas petition, we need not decide whether confusion about AEDPA law or confusion about what action the state court has taken can ever be the type of extraordinary circumstance that may warrant equitable tolling."). Because petitioner has failed to demonstrate that he was diligent in pursuing his claims for habeas relief, he has not met his burden of demonstrating that he is entitled to equitable tolling of the statute of limitations contained in 28 U.S.C. 2244(d).

CONCLUSION

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Respondents' August 6, 1999 amended motion to dismiss (Doc. No. 32) be granted;

2. Petitioner's October 4, 1999 motion for equitable tolling (Doc. No. 38) be denied; and

3. This action be dismissed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

In any objections he elects to file, petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).


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