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Brian Rayvan Johnson v. Cynthia Tampkins


November 5, 2012


The opinion of the court was delivered by: Jean Rosenbluth U.S. Magistrate Judge



On July 31, 2012, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody. On August 3, 2012, the Court dismissed the Petition with leave to amend because it suffered from three deficiencies: (1) Petitioner did not date or sign the Petition; (2) the Petition appeared to include unexhausted claims; and (3) the Petition appeared to be time barred. On September 5, 2012, Petitioner filed a First Amended Petition. The FAP was signed and dated, so Petitioner had corrected the first deficiency. He also appeared to have clarified that he intended to raise only those claims he had raised on direct appeal. (See FAP at 5 (noting "See Attachment" for grounds raised and attaching opening brief on appeal).) Petitioner had not adequately demonstrated, however, that the FAP was not time barred. Accordingly, on September 12, 2012, the Court ordered Petitioner to show cause in writing no later than October 9 why the FAP should not be dismissed as untimely. On October 5, 2012, Petitioner filed a Response to the Order to Show Cause. On October 11, 2012, the Court ordered Respondent to file a reply to Petitioner's Response, which she did on October 30. The parties have consented to the jurisdiction of the undersigned judge.


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), see 28 U.S.C. § 2244(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.

Petitioner does not dispute that his conviction became final on March 15, 2011, 90 days after the state supreme court denied review, on December 15, 2010. See Merolillo v. Yates, 663 F.3d 444, 454 n.5 (9th Cir. 2011), cert. denied, 80 U.S.L.W. 3565 (U.S. Oct. 1, 2012) (No. 11-1094).*fn1 Nor does he contend that he is entitled to a later trigger date for any reason. Thus, Petitioner had until March 15, 2012, to file his federal Petition. Petitioner did not file the Petition until July 31, 2012, four and a half months late, and he did not constructively file the FAP until August 29, 2012, five and a half months late.

No basis for statutory tolling under § 2244(d)(2) exists, as Petitioner apparently did not file any state habeas petitions. (FAP at 3.) Petitioner has attached to the FAP and his Response to the OSC documents that he argues show his entitlement to equitable tolling. (Response at 3.) As the Court explained to Petitioner in its Order dismissing the Petition with leave to amend and in the OSC, under certain circumstances, a habeas petitioner may be entitled to equitable tolling, see Holland v. Florida, 560 U.S. __, 130 S. Ct. 2549, 2560, 177 L. Ed. 2d 130 (2010), but only if he shows that (1) he has been pursuing his rights diligently and (2) "some extraordinary circumstance stood in his way," see Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814, 161 L. Ed. 2d 669 (2005).

Petitioner cannot show either. He attached to the FAP letters from his attorney on direct appeal, notifying him of the state courts' decisions. In the December 20, 2010 letter letting Petitioner know that the state supreme court had denied his petition for review, his attorney explained, in bolded lettering, that he must file any federal habeas petition "by one year and 90 days after the date of the decision, which was December 15, 2010." (FAP at 133.)*fn2 Thus, even though Petitioner complains that he is a layman without any understanding of the law (Response at 1), he was on clear notice that he had to file his federal Petition no later than March 15, 2012.

Petitioner claims that he was unable to do so because he did not have any law-library access during which he could complete the Petition. He states that his work assignment conflicted with the hours his facility was provided law-library access, and thus he had to go to work instead of the library or "be considered as a program failure and be disciplined accordingly." (Response at

2.) The problem is that the documents Petitioner has submitted appear to show that as of mid-December 2011 he was assigned to a work crew that had Sundays and Mondays, when the library was closed, off and worked during the times the library was available to those in his group. (Response at 4-11.) But even if the Court credits all the evidence Petitioner has provided, his showing falls short of demonstrating entitlement to the necessary four and a half months of tolling (or more, if the filing of his original unverified Petition is not the operable date but rather the filing of the FAP). Petitioner's AEDPA deadline was March 15, 2012. It's unclear which group Petitioner was in in terms of access to the law library, but it appears to have been either A (his work and privilege group) or B (his housing unit). (Response at 4.) The documents he has submitted show that because of his job, he would not have had any library access in January or February 2012 if he was in group B and would have been able to go only on Tuesday, February 28, for three evening hours if he was in group A. (Response at 6-7.) For March 1 through 14, 2012, leading up to his March 15 due date, he would not have been able to access the library at all if he was in group A and would have been able to go on two evenings, March 6 and 13, if he was in group B. Even giving Petitioner every benefit of the doubt and assuming that he would be entitled to equitable tolling for the two and a half months from January 1 to March 15, 2012, his Petition was still at least two months late. The calendars show that both group A and group B had access to the law library several evenings in late March and throughout April and May 2012. (Response at 8-10.) Thus, even under the most generous of calculations, he would not have been entitled to any further tolling. And Petitioner has submitted no evidence to show that he lacked library access before he began his current job, in mid-December 2011.*fn3

Because he had at least some access to the prison law library during the relevant period, his claim fails. Cf. Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (complete lack of access to legal files might justify equitable tolling); see Hall v. Warden, 662 F.3d 745, 752 (6th Cir. 2011) (holding that petitioner's lack of access to trial transcripts coupled with pro se status and limited access to law library insufficient to warrant equitable tolling), cert. denied, 81 U.S.L.W. 3164 (U.S. Oct. 1, 2012) (No. 11-10643). Nor is Petitioner entitled to equitable tolling simply because he didn't understand the law himself and needed help from a fellow prisoner. (Response at 1); see Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (prisoner's pro se status, law library missing a "handful" of reporter volumes, and reliance on inmate helpers who were transferred or too busy to attend to his petitions not extraordinary circumstances "given the vicissitudes of prison life"); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)

(pro se petitioner's lack of legal sophistication insufficient). For all these reasons, Petitioner is not entitled to enough equitable tolling to render the FAP (or the original Petition) timely.


IT THEREFORE IS ORDERED that Judgment be entered denying the First Amended Petition and dismissing this action with prejudice.

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