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Victory Ilsung v. Ralph M. Diaz


November 26, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).

Pending before the court is respondent's motion to dismiss the pending habeas petition as barred by the statute of limitations. Respondent also claims the petition contains an unexhausted claim. For the reasons set forth below, respondent's motion is granted.

II. Legal Standards

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted. Section 2244(d)(1) of Title 8 of the United States Code provides:

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. § 2244(d)(1). Section 2244(d)(2) provides that "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" the limitations period. 28 U.S.C. § 2244(d)(2).

III. Chronology

For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:

1. On January 23, 2008, on retrial,*fn2 in the Sacramento County Superior Court, petitioner was convicted of attempted murder, mayhem, and corporal injury to a former cohabitant. (Respondent's Lodged Document ("LD") 1.) The jury also found true allegations of great bodily injury and personal use of a weapon, and petitioner admitted the prior strike. (LD 1.)

On February 22, 2008, petitioner was sentenced to twenty-five years to life in state prison. (LD 1.)

2. Petitioner filed an appeal. On December 31, 2009, the California Court of Appeal, Third Appellate District, modified the sentence to reduce the domestic violence enhancement from the five-year upper term to the four-year middle term, resulting in a total sentence of twenty-four years to life, and to reduce the restitution fine and the stayed parole revocation fine from $10,000 to $8,000. (LD 2.) The Court of Appeal affirmed the judgment as modified. (LD 2.)

3. Petitioner filed a petition for review in the California Supreme Court, which was denied without comment on March 10, 2010. (LD 4.)

4. On October 4, 2010,*fn3 petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 5.) The petition was denied on April 13, 2011, citing see People v. Duvall, 9 Cal. 4th 464, 474 (1995), and In re Swain, 34 Cal.2d 300, 302 (1949). (LD 6.)

5. On April 11, 2012, pursuant to Rule 3(d) of the Federal Rules Governing Section 2254 Cases, the instant action was constructively filed. (Dkt. No. 1.)

IV. Statutory Tolling

The California Supreme Court denied the petition for review on March 10, 2010.

Petitioner's conviction became final ninety days later, on June 8, 2010, when the time for seeking certiorari with the United States Supreme Court expired. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). The AEDPA statute of limitations period began to run the following day, on June 9, 2010. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Absent tolling, petitioner's last day to file his federal petition was on June 8, 2011.

The limitations period ran from June 9, 2010, to October 4, 2010, when petitioner filed his first petition for writ of habeas corpus. Thus, of the one year statute of limitations period, 117 days expired by October 4, 2010. The statute of limitations period was then tolled from October 4, 2010, through April 13, 2011, the date the petition for writ of habeas corpus was denied. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). On April 14, 2011, petitioner had 248 days left in the statute of limitations period, which ran on December 18, 2011. However, because December 18, 2011, was a Sunday, the limitations period expired on December 19, 2011. See Fed. R. Civ. P. 6(a)(1)(C).

Petitioner did not file his federal petition until April 11, 2012, which was 114 days after the statute of limitations period expired. Thus, absent equitable tolling, the instant petition is time-barred.

V. Equitable Tolling

Equitable tolling is available to toll the one-year statute of limitations available to 28 U.S.C. § 2254 habeas corpus cases. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). A litigant seeking equitable tolling must establish: (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The Ninth Circuit has explained:

To apply the doctrine in "extraordinary circumstances" necessarily suggests the doctrine's rarity, and the requirement that extraordinary circumstances "stood in his way" suggests that an external force must cause the untimeliness, rather than, as we have said, merely "oversight, miscalculation or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling.

Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.) (internal citation omitted), cert. denied, 130 S. Ct. 244 (2009); see also Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003) (petitioner must show that the external force caused the untimeliness). It is petitioner's burden to demonstrate he is entitled to equitable tolling. Espinoza-Matthews v. People of the State of California, 432 F.3d 1021, 1026 (9th Cir. 2005).

In his November 8, 2012 filing, petitioner argues that he has been diligent, but that he is a "seriously suffering dialysis CDCR-Inmate ADA Patient," and that his diabetic medication often causes petitioner to suffer low blood sugar, requiring petitioner to be sent out to the medical center for observation and/or other medications, "stopping petitioner from litigation." (Dkt. No. 15 at 2.)

However, petitioner provided no facts or evidence to support these claims. See Alva v. Long, 2012 WL 4369656 (C.D. Cal. 2012) (petitioner failed to submit evidence demonstrating any unusual medical condition during the period in question). For example, petitioner provided no medical records confirming his medical condition or the date he began dialysis, and did not inform the court how many times per week he required dialysis, what time he received dialysis, or how long his dialysis treatments lasted. Petitioner did not provide the dates of his dialysis so the court could determine whether the dialysis treatments impacted the limitations period. Similarly, petitioner did not provide the dates he was taken to the medical center. Absent such factual support, the court cannot find that petitioner is entitled to equitable tolling for the relevant period.

Finally, petitioner argues that prison yard lockdowns affected petitioner's access to the law library to do research and/or make copies, which delayed petitioner's ability to timely access the court. (Dkt. No. 15 at 2.)

Being on lockdown alone is not grounds for equitable tolling. See Ramirez v. Yates, 571 F.3d 998 (9th Cir. 2009) ("petitioner's four month stay in administrative segregation with limited access to the law library and a copier did not justify equitable tolling because "[o]rdinary prison limitations on [one's] access to the law library and copier (quite unlike the denial altogether of access to his personal legal papers) were neither 'extraordinary' nor made it 'impossible' for him to file his petition in a timely manner."); Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (rejecting argument that lack of access to library materials automatically qualifies as grounds for equitable tolling); see also Nelson v. Sisto, 2012 WL 465443, at *6 (N.D. Cal. Feb. 13, 2012) (finding petitioner's allegations of prison lockdowns that lasted months at a time, including one lockdown that lasted a year, were "nothing more than routine prison circumstances that most habeas prisoners face and did not amount to extraordinary circumstances or make it impossible for him to file on time."); Atkins v. Harris, 1999 WL 13719, at *2 (N.D. Cal. Jan. 7, 1999) ("Petitioner's allegations of difficulty in gaining library access, prison lockdowns, his lack of legal training . . . fail to meet the requisite extraordinary circumstances. . . . Prisoners familiar with the routine restrictions of prison life must take such matters into account when calculating when to file a federal petition.").

Thus, petitioner's claim that prison lockdowns entitle him to equitable tolling is unavailing.

For the reasons discussed above, the undersigned finds that petitioner has not met his burden of demonstrating the existence of grounds for equitable tolling. See Pace, 544 U.S. at 418 (petitioner bears burden of demonstrating grounds for equitable tolling); Espinoza--Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). Rather, his claims for equitable tolling are unsupported and vague. Accordingly, petitioner is not entitled to equitable tolling and respondent's motion to dismiss this action as barred by the statute of limitations is granted.

VI. Exhaustion

Respondent contends that petitioner's fifth claim was not presented to the

California Supreme Court, and therefore the petition contains an unexhausted claim. On November 8, 2012, petitioner filed a motion to dismiss the unexhausted fifth claim. (Dkt. No. 15 at 2.) Good cause appearing, petitioner's motion to voluntarily dismiss the fifth claim is granted.

VII. Conclusion


1. Petitioner's November 8, 2012 motion to dismiss claim five (dkt. no. 15) is granted;

2. Respondent's June 28, 2012 motion to dismiss (dkt. no. 9) is granted, as the petition is time-barred; and

3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253.

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