FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a
writ of habeas corpus pursuant to 42 U.S.C. § 2254. Before the court
is respondent's motion to dismiss the petition on the grounds that it
was filed beyond the applicable one-year statute of limitations.
Petitioner has filed his opposition and respondent filed a reply. On
December 12, 2011, the court granted petitioner leave to file a
rebuttal brief further addressing his contention that he was entitled
to equitable tolling of the statute of limitations.*fn1
Thereafter, petitioner filed his rebuttal and respondent
filed a response thereto.
On May 2, 2002, following a jury trial, petitioner was convicted in the Shasta County Superior Court of thirty-one counts of sexual offenses perpetrated against his daughter. (Lod. Doc. Nos. 1 at 2 & 2 at 2, lodged May 26, 2011.) On June 26, 2002, petitioner was sentenced to an aggregate state prison term of 188 years and 8 months and was also ordered to pay $10,000 in restitution, $10,000 as a parole revocation restitution fine and $2,001 direct restitution to the victim. (Lod. Doc. No. 1.) The Abstract of Judgment indicates that at the time of sentencing petitioner was represented by appointed counsel "J. Mackey." (Id.)
On April 14, 2004, the California Court of Appeal for the Third Appellate District, reversed the judgment of conviction and the sentences imposed on eighteen of the thirty-one counts of conviction and remanded the case for re-sentencing on the remaining counts and for recalculation of petitioner's custody credits. (Lod. Doc. No. 2.)*fn2 On May 21, 2004, petitioner filed a petition for review with the California Supreme Court. (Lod. Doc. No. 3.) On June 30, 2004, that petition for review was summarily denied. (Lod. Doc. No. 4.)
On September 7, 2004, petitioner was re-sentenced by the Shasta County Superior Court to an aggregate term of fifty-three years in state prison. (Lod. Doc. No. 5.) The restitution amounts originally imposed remained unchanged. The Abstract of Judgment reflects that at his re-sentencing petitioner was represented by "Deputy Public Defender J. Mackey." (Id. at 1.)
No notice of appeal was filed on behalf of petitioner following his re-sentencing. In fact, petitioner sought no further relief with respect to his judgment of conviction and sentence for over four years until he filed a pro se motion with the Shasta County Superior Court on January 20, 2009, seeking modification of only the restitution order imposed in his case. (Lod. Doc. No. 6.)*fn3 On January 22, 2009, the Superior Court denied that motion on the grounds that the court lacked jurisdiction because the motion was not filed within 120 days of the original commitment order filed on June 26, 2002. (Lod. Doc. No. 7.) On January 15, 2010, petitioner filed another pro se motion for modification of sentence with the Shasta County Superior Court, again challenging the restitution order. (Lod. Doc. No. 8.) On January 26, 2010, that motion was denied as procedurally barred and lacking merit. (Lod. Doc. No. 9.) On February 10, 2010, petitioner filed a notice of appeal from the denial of his motion for modification of sentence, which was later received by the California Court of Appeal for the Third Appellate District. (Lod. Doc. No. 10.) On July 2, 2010, the California Court of Appeal affirmed the trial court's order after judgment. (Lod. Doc. No. 11.) On July 29, 2010, petitioner filed a petition for a rehearing. (Lod. Doc. No. 10.) On July 30, 2010, the petition for rehearing was denied by the state appellate court. (Lod. Doc. No. 12.)
Next, petitioner filed two pro se state habeas petitions. First, on March 21, 2010, petitioner filed a petition for writ of habeas corpus with the Shasta County Superior Court.*fn4
(Lod. Doc. No. 13.) Therein, petitioner raised two grounds for relief: (1) he was denied a fair trial when the jury was prejudiced by the prosecutor's erroneous inclusion in the charging document of the eighteen sexual abuse counts which were later overturned by the California Court of Appeal on direct appeal; and (2) he was denied his rights to due process, trial by jury and subjected to double jeopardy when he was charged in those eighteen counts with offenses that were indistinct and involved overlapping times and dates.
On April 28, 2010, the Shasta County Superior Court denied relief finding that the petition was untimely and that petitioner had failed to explain his delay of more than five-years in seeking relief. (Lod. Doc. No. 14 at 1) (citing In re Saunders, 2 Cal. 3d 1033, 1040 (1970), In re Wells, 67 Cal. 2d 873, 875 (1967) and In re Clark, 5 Cal. 4th 750, 756 (1993)). In addition, the Superior Court denied habeas relief on the grounds that the alleged erroneous inclusion of the eighteen sexual abuse counts had already been addressed by the California Court of Appeal on direct appeal. (Id. at 2.) Finally, the Superior Court rejected petitioner's claim that his jury was improperly influenced by the eighteen counts that were later overturned on appeal because the evidence with respect to the additional eighteen counts would likely have been admitted at petitioner's trial under California Evidence Code §§ 1101(b) or 1108 in any event. (Id.)
Thereafter, on May 12, 2010*fn5 , petitioner filed a habeas petition with the California Supreme Court. (Log. Doc. No. 15.) Therein, petitioner raised the same grounds for relief as were presented in his habeas petition filed with the Shasta County Superior Court as well a third ground for relief in which he challenged the restitution fine imposed in his case. (Id.) On December 15, 2010, the California Supreme Court denied the petition with citations to In re Robbins, 18 Cal. 4th 770, 780 (1998) and In re Dixon, 41 Cal. 2d 756 (1953). (Lod. Doc. No. 16.)
III. Federal Habeas Petition
The habeas petition pending before this court was signed by petitioner on January 20, 2011*fn6 and filed on January 25, 2011 with the U.S. District Court for the Northern District of California. (Doc. No. 1.) On February 23, 2011, this habeas action was transferred to this court.
In his pending federal habeas application petitioner presents three claims for relief based upon alleged violations of his right to: (1) "14th Amend[ment] due process, right to trial by jury, prosecutor vindictiveness . . ."; (2) "due process, trial by jury, failure of notice, [d]ouble jeopardy right"; and (3) be free from excessive fines and punishment under the Eighth Amendment.
As noted, respondent moves to dismiss the pending federal habeas petition on the grounds that it was filed beyond the applicable one-year statute of limitations. According to respondent, the statute of limitations for the filing of the federal habeas petition in this case began to run on November 6, 2004, sixty days after petitioner was re-sentenced on September 7, 2004. (MTD (Doc. No. 20) at 3.) According to respondent, the statute of limitations began to run on November 7, 2004 and ran unabated until it expired on November 6, 2005. (Id. at 4.) Respondent argues that the petitioner's attempts in 2009 and 2010 to modify the restitution fines imposed as part of his sentence did not impact the finality of his judgment of conviction. Respondent notes that, in any event, in these federal habeas proceedings petitioner is challenging his September 7, 2004 judgment of conviction on substantive grounds and is not contesting the restitution fines imposed as part of his sentence. (Id.)
Respondent also argues that there is no statutory tolling of the statute of limitations here because petitioner did not file any state collateral challenges to his judgment of conviction before the limitations period for the filing of a federal petition had expired. (Id.) Respondent notes that petitioner's 2010 state habeas petitions, filed after the statute of limitations for the filing of a federal petition had expired, do not restart the clock and cannot revive the expired federal limitations period. (Id. at 5.)
Lastly, respondent points out that the Shasta County Superior Court found that petitioner's state habeas petition was untimely by citing the decision in In re Clark, and that the California Supreme Court found his second state habeas petition untimely by citing the decision in In re Robbins in denying relief. Therefore, respondent argues, the two state habeas petitions filed by petitioner were not properly filed and cannot serve to toll the applicable federal statute of limitations. Id.
II. Petitioner's Opposition
In his opposition to the motion to dismiss, petitioner argues that he is entitled to equitable tolling of the statute of limitations due to the gross negligence of his attorney, and because petitioner is illiterate and was solely dependant on his attorney. In this regard, petitioner alleges as follows:
On or about September 8, 2004, petitioner's family retained
Attorney Janice Louise Mackey (Former State Bar #164311) to file a direct appeal from the conviction. On or about June 2006 Petitioner's family discovered that Ms. Mackey had not filed the direct appeal, that the time to appeal had run out. Ms. Mackey did offer for a sum of $1,200.00 to file a State Habeas Petition in his behalf challenging the new sentence. (See Notarized Statement from Helen Copen, sister of the Petitioner at Exhibit A). From 2004 to 2009 Petitioner, who is illiterate, (See Exhibit B), and his family, relied on Ms. Mackey, (who is now disbarred) to file a petition for writ of Habeas Corpus. Petitioner did in January 2009 file in pro per (prepared by a fellow inmate) a motion to the Shasta County Superior Court to Modify the Sentence as it pertained to the restitution, this petition was denied. In March 2010, only after learning that retained attorney Ms. Mackey would not file a petition because she was disbarred, petitioner with the assistance of another inmate filed a Post Conviction Collateral challenge to the conviction and sentence.
(Doc. No. 32 at 2.) In support of his claim of entitlement to equitable tolling, petitioner has submitted the declaration of his sister, Helen Copen, who states as follows under penalty of perjury:
Janice Mackey Told [sic] Mr. Butte SR. [sic] don't worry I will file your appeal on your sentencing.
That was in September 8th 2004 [sic] after court due to being repentance. [sic] We talked to Miss Mackey on numerous occasions between then and the middle of June 2006. (Id. at 6.)
Petitioner's contention in this regard is quite vague, somewhat puzzling and difficult to decipher.*fn7 However, it appears that he is contending as follows. Despite assurances by his attorney Janice Mackey that an appeal of the re-sentencing would be pursued, in mid-June of 2006 petitioner's sister learned that no notice of appeal was filed following his re-sentencing on September 7, 2004. Despite this revelation, petitioner's family then paid Mackey $1,200 to file a habeas petition on petitioner's behalf challenging his re-sentencing. (Id.) According to petitioner, his family members checked with Mackey "often between June 2006 and Aug[.] 2007 to find she had done nothing." (Id.) In September 2007, petitioner's sister talked to Mackey who explained that she was waiting "for a loop hole before she could file a writ." (Id.) "Around March 2008 Miss Mackey told us if she could not find a loop hole or for some reason did not file Mr. Butte's writ she would return our money and paper work that she had ask for." (Id.) In 2009, petitioner gave his sister and James West a power of attorney because Mackey would not discuss the case with them without one and in 2010, they "went several times to talk to Miss Mackey to see if she was working on the case and to give her a copy of power of attorney that she ask for." (Id.) They "went back several times" and attorney Mackey refused to talk to them. Finally, when asked why she did not respond to petitioner's letters, attorney Mackey divulged that she "could no longer practice law." (Id.)*fn8
Petitioner argues that under these circumstances he is entitled to equitable tolling of the statute of limitations for the filing of a federal habeas petition due to the failures and gross incompetence of attorney Mackey. (Id. at 3.) Petitioner has submitted copies of Mackey's California State Bar records reflecting that she was suspended from the practice of law on March 8, 2010 and as of May 20, 2011 was still ineligible to practice. (Id. at 9-13.) Petitioner argues that "[t]he actions of a hired attorney should not be held against a petitioner who presents evidence of his illiteracy, and who is solely dependant upon his attorney." (Id.) According to petitioner, neither he nor his family were "aware of any filing deadlines under the AEDPA[.]" (Id.)
As to his claimed illiteracy, petitioner has submitted a prison classification chrono dated July 18, 2002, which describes him as a "50-year old illiterate white male . . . involved in the Mental Health ...