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Joseph Vasquez v. A. Gibson


January 7, 2013


The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge


This Report and Recommendation is submitted to the Honorable J. Spencer Letts, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.


On May 1, 2012, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody," bearing a signature date of April 18, 2012. The Petition contains a single claim of alleged instructional error at trial. Respondent filed an Answer on September 25, 2012, asserting that the Petition is untimely. Petitioner filed a Reply on December 24, 2012.


In 2007, a jury found Petitioner guilty of two counts of first degree murder and one count of premeditated attempted murder (Petition, p. 2; Respondent's Lodgment 1). The jury found true the allegations that: (1) Petitioner committed multiple murders within the meaning of California Penal Code section 190.2(a)(3); and (2) Petitioner used a firearm within the meaning of California Penal Code sections 12022.53(b), (c) and (d) (Petition, p. 2; Respondent's Lodgment 1). Petitioner received a total sentence of life without parole plus twenty-five years to life (Petition, p. 2; Respondent's Lodgment 1).

Petitioner appealed, represented by retained counsel Lawrence R. Young (Respondent's Lodgment 4; see Petition, p. 6). The Court of Appeal's docket shows that, on July 2, 2008, after filing the opening brief, Mr. Young moved to withdraw.*fn1 On July 29, 2008, the Court of Appeal granted the motion and ordered the California Appellate Project ("CAP") to select counsel for Petitioner. On August 7, 2008, Petitioner filed letters requesting information concerning the status of the appeal and stating that he did not want Mr. Young to act as counsel. On September 23, 2008, the Court of Appeal appointed Diana Marie Teran as counsel for Petitioner. On October 9, 2008, Petitioner's copy of the appointment order was returned to the Court of Appeal. The docket entry for this date states: "Per CDCR, Appellant discharged. This Court has no updated address on file."

The Court of Appeal affirmed the judgment on June 1, 2009 (Respondent's Lodgment 5; see People v. Vasquez, 2009 WL 1508874 (Cal. App. June 1, 2009)). On June 12, 2009, Ms. Teran submitted a "premature" petition for review to the California Supreme Court, which that court filed on July 2, 2009 (see Docket in People v. Vasquez, California Supreme Court case number S173732).*fn2 The California Supreme Court denied the petition for review summarily on August 12, 2009 (Respondent's Lodgment 7).


The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners: (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's conviction became final on November 10, 2009, upon the expiration of 90 days from the California Supreme Court's August 12, 2009 denial of the petition for review. See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) ("direct review cannot conclude for purposes of § 2244(d)(1)(A) until the availability of direct appeal to the state courts, [citation], and to this Court, [citation] has been exhausted"); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (period of "direct review" after which state conviction becomes final for purposes of section 2244(d)(1) includes the 90-day period for filing a petition for certiorari in the United States Supreme Court) The statute of limitations commenced running on November 11, 2009, unless subsections B, C, or D of 28 U.S.C. section 2244(d)(1) furnish a later accrual date. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978 (2001); see also Porter v. Ollison, 620 F.3d at 958 (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).

Subsection B of section 2244(d)(1) is inapplicable. Petitioner does not allege, and the record does not show, that any illegal conduct by the state or those acting for the state "made it impossible for him to file a timely § 2254 petition in federal court." See Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009).

Subsection C of section 2244(d)(1) is also inapplicable. Petitioner does not assert any claim based on a constitutional right "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." See Dodd v. United States, 545 U.S. 353, 360 (2005) (construing identical language in section 2255 as expressing "clear" congressional intent that delayed accrual inapplicable unless the United States Supreme Court itself has made the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) (for purposes of second or successive motions under 28 U.S.C. section 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds the new rule to be retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989), to analysis of delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)).

Section 2244(d)(1)(D) does not furnish an accrual date later than April 25, 1996, for Petitioner's claims. Under section 2244(d)(1)(D), the "'due diligence' clock starts ticking when a person knows or through diligence could discover the vital facts, regardless of when their legal significance is actually discovered." Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012), cert. denied, 2012 WL 4931400 (U.S. Dec. 3, 2012); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001); see also United States v. Pollard, 416 F.3d 48, 55 (D.D.C. 2005), cert. denied, 547 U.S. 1021 (2006) (habeas petitioner's alleged "ignorance of the law until an illuminating conversation with an attorney or fellow prisoner" does not satisfy the requirements of section 2244(d)(1)(D)). At the time of trial, Petitioner knew or should have known of his sole claim of alleged instructional error. Moreover, Petitioner's appellate counsel filed an opening brief on appeal on June 3, 2008, asserting this claim (see Respondent's Lodgment 2). Therefore, delayed accrual pursuant to section 2244(d)(1)(D) is inappropriate.

Accordingly, the statute of limitations began running on November 11, 2009, and presumptively expired on November 10, 2010. See Patterson v. Stewart, 251 F.3d at 1246. Petitioner constructively filed the present Petition on April 18, 2012, over a year and four months after the presumed expiration of the limitations period.*fn3 Absent tolling, the Petition is untimely.

Section 2244(d)(2) tolls the statute of limitations during the pendency of "a properly filed application for State post-conviction or other collateral review." However, Petitioner does not allege, and the record does not show, that Petitioner filed any application for "State post-conviction or other collateral review."*fn4 Therefore, statutory tolling cannot rescue the Petition from the untimeliness bar.

AEDPA's statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida, 130 S. Ct. 2549, 2560 (2010) (citations omitted). "[A] 'petitioner' is entitled to 'equitable tolling' only if he shows '(1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Lawrence v. Florida, 549 U.S. 327, 336 (2007). The threshold necessary to trigger equitable tolling "is very high, lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 130 S. Ct. 244 (2009) (citations and internal quotations omitted). Petitioner bears the burden to show equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009). Petitioner must show that the alleged "extraordinary circumstances" were the "cause of [the] untimeliness." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006), cert. denied, 549 U.S. 1317 (2007) (brackets in original; quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)). Petitioner must show that an "external force" caused the untimeliness, rather than "oversight, miscalculation or negligence." Waldron-Ramsey v. Pacholke, 556 F.3d at 1011 (citation and internal quotations omitted).

Petitioner attributes the delay in filing to Petitioner's "lack of knowledge and ignorance of the process to seek further relief, and Counsel's failure to assist Petitioner in notifying Petitioner of any time constraints" (Reply, p. 2). However, Petitioner's alleged ignorance of the law, lack of legal sophistication and lack of legal assistance cannot justify equitable tolling. See Waldron-Ramsey v. Pacholke, 556 F.3d at 1013 n.4 ("we have held that a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling") (citation omitted); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("we now join our sister circuits and hold that a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling"); Jimenez v. Hartley, 2010 WL 5598521, at *5 (C.D. Cal. Dec. 6, 2010), adopted, 2011 WL 164536 (C.D. Cal.

Jan. 13, 2011) (allegations that petitioner was uneducated, illiterate and indigent insufficient); Oetting v. Henry, 2005 WL 1555941 at *3 (E.D. Cal. June 24, 2005), adopted, 2005 WL 2000977 (E.D. Cal.

Aug. 18, 2005) ("Neither ignorance of the law nor pro se status are the sort of extraordinary events upon which a finding of equitable tolling may be based."); cf. Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy and pro se status insufficient cause to avoid procedural default).

Specifically, any alleged error of Petitioner's counsel in failing to advise Petitioner properly concerning the statute of limitations cannot merit equitable tolling. See Holland v. Florida, 130 S. Ct. at 2564 ("'a garden variety claim of excusable neglect' [citation], such as a simple 'miscalculation' that leads a lawyer to miss a filing deadline [citation], does not warrant equitable tolling"); Lawrence v. Florida, 549 U.S. at 336-37 ("Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the post-conviction context where prisoners have no constitutional right to counsel [citation]."); Velasquez v. Kirkland, 639 F.3d 964, 969 (9th Cir.), cert. denied, 132 S. Ct. 554 (2011) (petitioner "must have been delayed by circumstances beyond his direct control, and not be his or his counsel's own mistake") (citation, internal brackets and quotations omitted); Porter v. Ollison, 620 F.3d at 959 ("Attorney negligence, including a miscalculation of a filing deadline, is not a sufficient basis for applying equitable tolling to the § 2244(d)(1) limitation period. [citation]."). "[R]outine instances of attorney negligence do not constitute an 'extraordinary circumstance' that requires equitable tolling." Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003) (citation and footnote omitted).

Petitioner further alleges he was unaware that his counsel had filed a California Supreme Court petition for review until Petitioner assertedly learned, from Respondent's lodgment in support of the Answer in the present action, that the California Supreme Court had denied Petitioner's petition for review on August 12, 2009 (Reply, p. 6). Petitioner contends that, when the Court of Appeal denied Petitioner's appeal, Mr. Young purportedly told Petitioner "that there was nothing else he could do for [Petitioner]," and "that the next step [Petitioner] should take was to file a federal habeas corpus on my own" (Petition, p. 6).*fn5 Petitioner alleges that his "paid lawyer [Mr. Young] never mention[ed] anything regarding petition for review or any time constraint" (id.).

The Petition, signed on April 18, 2012, alleges that Petitioner did not file any petition for review in the California Supreme Court (see Petition, p. 3). However, the proof of service attached to Petitioner's California Supreme Court petition for review indicates that Petitioner's appointed counsel, Ms. Teran, served that petition on Petitioner on June 10, 2009, at his prison address (see Respondent's Lodgment 6, proof of service attached thereto). It is possible that, at the time Ms. Teran served the petition for review on Petitioner, Petitioner no longer was at this address and did not receive his service copy of the petition for review. Petitioner does not allege that he ever apprised Ms. Teran of a new address.

Even assuming arguendo Petitioner was unaware of the date that the California Supreme Court denied his petition for review until he received a service copy of Respondent's lodgment in the present action, Petitioner cannot be entitled to equitable tolling because he did not exercise reasonable diligence. "The diligence required for equitable tolling purposes is reasonable diligence. . . ." Holland v. Florida, 130 S. Ct. at 2549 (citations and internal quotations omitted). "[A] prisoner's lack of knowledge that the state courts have reached a final resolution of his case can provide grounds for equitable tolling if the prisoner has acted diligently in the matter." Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (citations and internal quotations omitted). If Petitioner was unaware that his counsel had filed a petition for review in the California Supreme Court until after Petitioner had filed the present Petition, such alleged unawareness probably resulted from Petitioner's failure to apprise his attorney of his current address (as Petitioner had failed to advise the Court of Appeal). Moreover, even assuming arguendo the truth of Petitioner's allegation that his appellate counsel told Petitioner, after the Court of Appeal's decision on June 1, 2009, that counsel could do no more and that Petitioner should file a federal petition, Petitioner did not act diligently to file that federal petition. Petitioner does not allege that anything prevented Petitioner from following counsel's alleged suggestion to file a federal petition. Had Petitioner done so, the Respondent's answer to that petition would have disclosed either that Petitioner had a pending petition for review in the California Supreme Court or that the California Supreme Court had denied the petition for review. Instead of following his counsel's alleged advice, Petitioner unreasonably waited years before filing the present Petition. See Johnson v. United States, 544 U.S. 295, 311 (2005) (deeming unreasonable a delay of over 21 months between date of finality of conviction and filing of state petition challenging validity of state conviction used to enhance federal sentence); compare Holland v. Florida, 130 S. Ct. at 2565 (petitioner acted diligently where he wrote his attorney numerous letters seeking crucial information and providing direction, repeatedly contacted the state courts and state bar in an effort to have his attorney removed from the case, and prepared and filed his petition the day he discovered the limitations period had run); Doe v. Busby, 661 F.3d 1001, 1013-15 (9th Cir. 2011) (petitioner exercised diligence by writing numerous letters and making numerous phone calls to remind retained counsel of the limitations deadline, counsel affirmatively misrepresented that counsel would file a timely petition, and petitioner filed petition ten days after learning counsel had failed to do so).

Furthermore, Petitioner has not shown that his supposed ignorance of the filing or denial of his California Supreme Court petition for review was "the cause of [his] untimeliness." See Roy v. Lampert, 465 F.3d at 969. Petitioner's supposed ignorance concerning the existence or status of the state court petition for review did not prevent Petitioner from filing a federal petition. See Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010), cert. denied, 131 S. Ct. 474 (2010) ("Counsel's failure to perfect an appeal simply meant that Randle had one year from the expiration of his time to file a notice of appeal in which to initiate a federal habeas action - it did not prevent him from filing the petition.").

Petitioner also appears to assert equitable tolling based on Petitioner's supposed actual innocence (see Reply, p. 4). The Ninth Circuit has recognized that a showing of "actual innocence" may merit equitable tolling if the petitioner can satisfy the standards set forth in Schlup v. Delo, 513 U.S. 298, 327 (1995) ("Schlup"). See Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc).*fn6 "In order to present otherwise time-barred claims to a federal habeas court under Schlup, a petitioner must produce sufficient evidence of his actual innocence to bring him 'within the narrow class of cases . . . implicating a fundamental miscarriage of justice.'" Id. at 937 (quoting Schlup, 513 U.S. at 314-15). "To pass through the Schlup gateway, a 'petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.'" Id. at 938 (quoting Schlup, 513 U.S. at 327). Petitioner has not met this "exacting" standard. See id. at 938. Petitioner's conclusory allegations are insufficient. See Herrera-Villate v. Knipp, 2012 WL 3631536, at *1 (C.D. Cal. Aug. 22, 2012) (conclusory allegations of actual innocence insufficient to warrant equitable tolling).

In sum, Petitioner has failed to show an entitlement to equitable tolling. The Petition is untimely.


For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.*fn7


Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.

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