The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
By Order, filed on December 20, 2011, the undersigned, in adjudicating
respondent's August 16, 2011, motion to dismiss the petition on
grounds of untimeliness, stated that further briefing would be
required to determine whether petitioner has presented any basis for
equitable tolling. See Docket # 14. The analysis finding that the
instant habeas petition was filed approximately six months*fn1
beyond the statutory AEDPA deadline has been set forth fully
in the Order at docket # 14 (pp. 2-7).
To summarize, the first habeas petition was filed in Sacramento County Superior Court on August 4, 2010 (Rsp. Lod. Doc. 6) and denied on October 22, 2010 (Rsp. Lod. Doc. 7), citing, inter alia In re Robbins, 18 Cal.4th 770, 811-812, 812 fn. 32 (1998); In re Clark, 5 Cal. 4th 750, 774-775 (1993). See Dkt # 14, p. 3. The second petition was filedin the Third District Court of Appeal on February 3, 2011 (Rsp. Lod. Doc. 8) and denied in a postcard denial on February 17, 2011 (Rsp. Lod. Doc. 9). Id. The third and final state court habeas petition (denominated a "Petition for Review") was filed in the California Supreme Court on March 11, 2011 (Rsp. Lod. Doc. 10) and received a postcard denial on May 11, 2011( Rsp. Lod. Doc. 11). Id. There is no dispute in the supplemental briefing that petitioner's conviction became final for AEDPA purposes on November 10, 2009, and that his filing in Sacramento County Superior Court, by liberal application of the mailbox rule, occurred on August 4, 2010, some 266 days later. See Docket # 14, pp. 3-4. As this court has previously stated:
In denying petitioner's initial habeas petition, the state superior court was explicit in finding the claims barred by Robbins/Clark. See Rsp. Lod. Doc. 7. While the court went on to discuss the merits, after expressly finding each specific claim of the petition untimely, to clarify that each would be denied even if not barred (and also asserting additional state procedural bars as to some claims, referencing, e.g., In re Dixon, 41 Cal.2d 756 (1953)), it is clear the merits were reached only to establish that petitioner's filing did not meet any exception entitling him to review. See id. Therefore, respondent accurately asserts that petitioner's first habeas petition could not have tolled the statutory limitations period. MTD, p. 5, citing, Pace, supra, 544 U.S. 414-15, 125 S.Ct. 1807; Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (petition denied as untimely is not properly filed and cannot toll the AEDPA limitations period). Thus, another eighty days elapsed while the first state court petition was pending, bringing the number of days elapsed to 346. Id. Respondent is correct that the statute of limitations expired on November 10, 2010, during the one hundred-and-three-day period between the October 22, 2010, initial habeas petition denial and the filing, on February 3, 2011, in the state appellate court, during that period four hundred and forty nine (449) days had passed, exceeding the statute of limitations at that point by eighty-four days. MTD, p. 5. There was again no tolling during the pendency of that filing until the February 17, 2011 denial, nor any interval tolling between the date of the appellate court denial and the filing in the state Supreme Court on March 11, 2011, nor any tolling between that filing and the May 11, 2011 denial. This is so because there is no tolling to which petitioner is entitled by the AEDPA statute because he never had a properly filed petition in state court during the one-year statutory period. That is, his state court petitions filed after the expiration of the statutory limitation period could not revive the statutory limitation period. Section 2244(d)(2) can only pause a clock not yet fully run; it cannot "revive" the limitation period once it has run (i.e., restart the clock to zero). Thus, a state court habeas petition filed beyond the expiration of AEDPA's statute of limitations does not toll the limitation period under § 2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001).
See Order, filed on 12/20/11 (Dkt #14), pp. 5-6.
With respect to the question of equitable tolling, the undersigned set forth the applicable standards:
The Supreme Court has fairly recently held "like all 11 Courts of Appeals that have considered the question...that § 2244(d) is subject to equitable tolling in appropriate cases." Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549, 2560 (2010). In Calderon v. U.S. District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (the Ninth Circuit case cited in Holland, supra), overruled on other grounds, Calderon v. U. S. District Court (Kelly), 163 F.3d 530 (9th Cir. 1998), itself abrogated by Woodford v. Garceau, 538 U.S.202, 123 S. Ct. 1398 (2003), the Ninth Circuit found that the statute of limitations could be equitably tolled if extraordinary circumstances beyond a prisoner's control made it impossible to file the petition on time. "In addition, '[w]hen external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling may be appropriate.'" Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002), quoting Miles v.Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).
See Order at Dkt # 14, p. 7
In directing the filing of supplemental briefing with respect to the question of equitable tolling, the court stated:
Petitioner should explain how his lack of access to legal material presented an insurmountable obstacle to the filing of his initial state court petition before 266 days had run from the date of the finality of his conviction, keeping in mind that a lack of access to a law library or ignorance of the law have not been found to be extraordinary circumstances. Raspberry v. Garcia, 448 F.3d at 1154; Hughes v. Idaho State Bd. of Corrections, supra, 800 F.2d at 909; U.S. v. Van Poyck, 980 F. Supp. at 1110-11. Also, it is unclear to the court how petitioner's not having received material related to a family law case timely could have had such an impact on the filing of his state or federal court habeas petitions regarding his criminal case and how that could serve to warrant equitable tolling when, as noted above, an inability to obtain transcripts has not been found to constitute an extraordinary circumstance. U.S. v. Van Poyck, 980 F. Supp. at 1110-11.
Order at Dkt # 14, pp. 12-13.
In his opposition to the motion to dismiss, petitioner contended that he had no law or legal material available at his location and no expert knowledge of the law but had diligently sought to file his petitions timely. See Order, filed on 12/20/11 at Docket (Dkt # 14), citing Opp., pp. 1-2. Petitioner also stated that he had to correspond with the Susanville prison law library for legal material or answers to legal questions and included, attached to his declaration, a copy of an Inmate Request for Interview, dated February 16, 2010, wherein he had asked for loan of a law book to help him work on a habeas corpus petition at the Eel River Conservation Camp and for a "list of grounds for appeal." Dkt # 14, citing id., at 2 & Exhibit (Ex.) M4. The response, dated April 27, 2010, indicated no law book could be sent to the camp, with grounds for appeal barely addressed; petitioner maintained another request was never even returned. Dkt # 14, citing id., at 2. The court notes that also within his opposition, plaintiff stated that he had at some point written to San Quentin Prison's Prison Law Office from which he had received his only guidance with regard to completing forms and meeting deadlines and from which he received instructions advising him that he was required exhaust state judicial remedies before filing a federal habeas petition. Opp., p. 2. Petitioner further contended that his diligence was demonstrated by the fact that his state Supreme Court petition denial was on May 11, 2011, and that the instant petition was filed on May 16, 2011. Id. In his supplemental briefing with respect to this issue, petitioner simply re-asserts a continuing lack of access to law books and legal material. Petitioner's supplemental briefing (PSB), p. 1. Respondent points out in his supplemental briefing that in the state Superior Court habeas corpus form petitioner used, there is a portion for petitioner to explain any delay in raising claims. RSB, p. 5, Respondent's Lodged Document 6, petitioner's Superior Court habeas petition, section 15 (last page). Although respondent made this observation to point out that petitioner made no other explanation for any delay, this explanation is further evidence of a complete lack of access to a prison law library. In that section, petitioner explains that it takes 30-90 days per request to correspond with Susanville. Id. In Raspberry v. Garcia, 448 F.3d at 1154, the Ninth Circuit found that a petitioner's "inability correctly to calculate the limitations period is not an extraordinary circumstance warranting equitable tolling." In Hughes v. Idaho State Bd. of Corrections, 800 F.2d at 908-909, a Ninth Circuit panel determined that a petitioner's illiteracy was not cause to excuse a pro se petitioner's procedural default (having bypassed and failed to timely exhaust his remedies in state Supreme Court). In U.S. v. Van Poyck, 980 F. Supp. at 1110-11, a court in the Central District found that lack of transcripts and limited access to a prison law library did not warrant equitable tolling for a § 2255 movant. More recently, the Ninth Circuit has found that while a lack of knowledge that state courts have reached a resolution of a petitioner's case can provide grounds for equitable tolling if he acted diligently, partial law library access does not warrant equitable tolling where petitioner was in administrative segregation and had limited law library and copy machine access. Ramirez v. Yates, 571 F.3d 993, 997-98 (9th Cir. 2009).
However, the Ninth Circuit in an en banc decision earlier determined that a deficient prison law library may constitute an impediment to filing under 28 U.S.C. § 2244(d)(1)(B) or justify equitable tolling. Whalem/Hunt v. Early, 233 F.3d 1146, 1147 (9th Cir. 2000) (en banc) (finding that a prison law library's not having AEDPA legal materials until 1998 and thus, until then, not affording petitioner awareness of the one-year statute of limitations for filing a petition could constitute an impediment to petitioner to filing under § 2244(d)(1)(B) or entitle him to equitable tolling); see also, Moore v. Battaglia, 476 F.3d 504, 507 (7th Cir. 2007). In Roy v. Lampert, 465 F.3d 964, 970 n. 1 (9th Cir. 2006), the appellate court noted that its focus in finding equitable tolling potentially warranted had been "almost exclusively" on the presence of "extraordinary circumstances" rather than on "whether the habeas petitioner had pursued their [sic] rights diligently." Id., citing Laws v. Lamarque, 351 F.3d 919 (9th Cir. 2003); Spitsyn v. Moore, 345 F.3d 796; Stillman v. LaMarque, 319 F.3d 1199; Corjasso v. Ayers, 278 F.3d 874; ...