UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
February 20, 2013
G.J. JANDA, WARDEN (A),
The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Christina A. Snyder, 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 16, 2012, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody," bearing a signature and service date of May 10, 2012. Respondent filed an Answer on November 6, 2012, asserting that the Petition is untimely. Petitioner filed a Reply on January 28, 2013.
On March 17, 2004, in the Los Angeles County Superior Court, a jury found Petitioner guilty of one count of kidnapping, two counts of infliction of corporal injury on a former cohabitant, one count of residential burglary, two counts of dissuading a witness by force or threat, one count of aggravated assault, one count of making a criminal threat, one count of sexual penetration with a foreign object, one count of forcible oral copulation, three counts of forcible rape, two counts of battery inflicting injury upon a peace officer, and one count of resisting an officer by force or violence (Respondent's Lodgment 1; see People v. Niebla, 2008 WL 5395113, at *1 (Cal. App. Dec. 23, 2008)). The jury also found Petitioner guilty of the misdemeanor offenses of assault and committing a lewd act in the presence of a minor (see People v. Niebla, 2008 WL 5395113, at *1). The jury found true the allegations that the rapes, oral copulation, and sexual penetration with a foreign object were committed during a burglary (see People v. Niebla, 2008 WL 5395113, at *1). The court sentenced Petitioner to a term of thirty-nine years and eight months plus five consecutive terms of fifteen years to life (Respondent's Lodgment 1; People v. Niebla, 2008 WL 5395113, at *1).
On August 20, 2007, the California Court of Appeal affirmed the conviction but remanded the case to the Superior Court for resentencing (Respondent's Lodgment 5). On October 24, 2007, the California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 7).
On January 2, 2008, the Superior Court resentenced Petitioner (Respondent's Lodgment 8).*fn1 On December 23, 2008, the Court of Appeal again remanded for resentencing but otherwise affirmed the judgment (Petition, Ex. C; Respondent's Lodgment 12; see People v. Niebla, 2008 WL 5395113 (Cal. App. Dec. 23, 2008)).
On June 24, 2009, the Superior Court resentenced Petitioner to a term of 39 years and 8 months plus 15 years to life (Petitioner, Ex. B; Respondent's Lodgments 13, 14, 15). The Court of Appeal affirmed the judgment on February 26, 2010 (Petition, Ex. E; Respondent's Lodgment 17; see People v. Niebla, 2010 WL 670539, at *1 (Cal. App. Feb. 26, 2010)). The California Supreme Court denied Petitioner's petition for review summarily on May 12, 2010 (Petition, Ex. F; Respondent's Lodgment 19).
Petitioner filed a pro se habeas corpus petition in the Superior Court, bearing a service date of July 18, 2010 (Respondent's Lodgment 20).*fn2 On August 5, 2010, the Superior Court denied the petition, directing the clerk to give notice (Respondent's Lodgment 21).
On or after December 19, 2010, Petitioner sent a letter to the Superior Court, stating that he had not received any verification that the court had filed his petition, and requesting proof of filing (Respondent's Lodgment 22). A copy of the envelope attached to this letter bears a prison postmark of December 21, 2010 (Respondent's Lodgment 22).
On March 9, 2011, Petitioner filed a habeas corpus petition in the Court of Appeal, bearing a signature and service date of March 4, 2011 (Respondent's Lodgment 23). In that Petition, Petitioner challenged his conviction and sentence, and also alleged, inter alia, that he had not been "served" with the Superior Court's August 5, 2010 order until January 6, 2011 (Respondent's Lodgment 23, "Addendum to Instant Petition for Writ of Habeas Corpus," p. iii). Petitioner attached to the Court of Appeal petition a copy of a Superior Court nunc pro tunc minute order, dated August 5, 2010, denying the Superior Court petition (Respondent's Lodgment 23, Ex. G thereto). The minute order bore a print date of January 3, 2011 (id.). Also attached to the Court of Appeal petition was a copy of an envelope addressed to Petitioner, bearing the Superior Court's return address and a postmark of January 4, 2011 (id.). Petitioner's prison mail log shows Petitioner received mail from the Superior Court on January 7, 2011 (Respondent's Lodgment 30, p. "4 of 5").
On April 21, 2011, the Court of Appeal issued an order: (1) requiring the Director of the California Department of Corrections and Rehabilitation to show cause in the Superior Court why the abstract of judgment should not be corrected; and (2) otherwise denying the petition (Respondent's Lodgment 24).
On June 21, 2011, the Superior Court issued a minute order appointing counsel for Petitioner "pursuant to defendant's request" and correcting the abstract of judgment to reflect a sentence of thirty-three years and eight months plus an additional term of 15 years to life (Respondent's Lodgment 28, Ex. J).*fn3 On June 29, 2011, a Superior Court deputy clerk issued an amended abstract of judgment reflecting Petitioner's correct sentence (Respondent's Lodgment 25).
On July 27, 2011, Petitioner filed a petition for writ of mandate in the Court of Appeal, bearing a signature and service date of July 24, 2011 (Respondent's Lodgment 26). Petitioner alleged that the Superior Court had failed to conduct proceedings regarding the Court of Appeal's April 21, 2011 order to show cause and had failed to respond to Petitioner's motions (Respondent's Lodgment 26, pp. 2-3). On August 28, 2011, the Court of Appeal denied the petition on the ground that the relief sought had been granted by the Superior Court's June 21, 2011 minute order, and directed the clerk to serve a copy of that minute order on Petitioner (Respondent's Lodgment 27).
On November 23, 2011, Petitioner filed a habeas corpus petition in the California Supreme Court, bearing a signature date of November 17, 2011 (Respondent's Lodgment 28). The California Supreme Court denied the petition summarily on April 18, 2012 (Respondent's Lodgment 29).
1. Petitioner's trial counsel allegedly rendered ineffective assistance, by assertedly:
a. advising Petitioner not to waive his right to a speedy trial;
b. filing no pretrial motions and conducting no defense investigation;
c. failing to seek allegedly essential jury instructions; and
d. telling the jury that Petitioner was guilty.
2. Petitioner allegedly received an unconstitutional sentence; and
3. Petitioner's appellate counsel assertedly rendered ineffective assistance by assertedly:
a. failing to discover and challenge the alleged sentencing errors mentioned in Ground Two;
b. failing to challenge trial counsel's alleged ineffectiveness; and
c. failing to have the abstract of judgment corrected.
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.
"AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis." Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).
Petitioner's conviction became final on August 10, 2010, upon the expiration of 90 days from the California Supreme Court's May 12, 2010 denial of Petitioner's second 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); see also Burton v. Stewart, 549 U.S. 147, 156-57 (2007)
(AEDPA's limitations period begins to run after entry of an amended judgment following resentencing). Hence, the statute of limitations began running on August 11, 2010, 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 952, 958 (9th Cir. 2010) (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).*fn4
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 August 11, 2010, 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.), cert. denied, 133 S. Ct. 769 (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)). Petitioner knew or should have known, prior to or during trial, the "vital facts" underlying his claims of alleged ineffective assistance of trial counsel (all of which concern counsel's alleged errors before and during trial). Petitioner knew or should have known, no later than the conclusion of sentencing, the "vital facts" underlying his claim of alleged sentencing error. Petitioner knew or should have known, by the conclusion of his appeal in the Court of Appeal, the "vital facts" underlying his claim of ineffective assistance of appellate counsel.
Accordingly, the one-year statute of limitations began running on August 11, 2010. Petitioner constructively filed the present Petition on May 10, 2012.*fn5 Absent sufficient tolling, the Petition is untimely. See Patterson v. Stewart, 251 F.3d at 1246. As discussed below, there does not exist sufficient tolling to render the present Petition timely.
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." The statute ran for 205 days until Petitioner constructively filed his Court of Appeal habeas petition on March 4, 2011. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).*fn6 Petitioner is entitled to statutory tolling for the time during which his Court of Appeal habeas petition was pending, from March 4, 2011, through April 21, 2011.*fn7 As of April 21, 2011, 160 days remained in the limitations period.
Petitioner is not entitled to statutory tolling during the period from the Court of Appeal's April 21, 2011 order through the Superior Court's June 21, 2011 order amending the abstract of judgment. In Wall v. Kholi, 131 S. Ct. 1278, 1282 (2011), the Supreme Court held that statutory tolling applied during the pendency of a post-conviction motion for reduction of sentence. The Court reasoned that "collateral review" in section 2244(d)(2) meant "judicial review of a judgment in a proceeding that is not part of direct review," and that "review" meant "an act of inspecting or examining," or a "judicial reexamination." Id. at 1284-85. Under Wall v. Kholi, "'review' occurs when a reviewing court reconsiders the work of the original court to correct any error or infelicity committed by that original court - or rather, submits that original court's work to examination for potential revision." Collins v. Ercole, 667 F.3d 247, 251 (2d Cir.), cert. denied, 133 S. Ct. 149 (2012).
In the present case, the Court of Appeal's April 21, 2011 decision denied the petition on the merits, but also issued an order to show cause to the Director of the California Department of Corrections and Rehabilitation regarding clerical errors in the abstract of judgment, returnable in the Superior Court. Because the Court of Appeal had completed its review of the merits and directed further proceedings only because of clerical errors in the abstract of judgment, during the period from April 21, 2011, to June 21, 2011, there existed no "application for State post-conviction or other collateral review with respect to the relevant judgment or claim" within the meaning of section 2244(d)(2). See Harrelson v. Swan, 381 Fed. App'x 336, 338-39 (5th Cir.), cert. denied, 131 S. Ct. 824 (2010) (proceedings seeking entry of nunc pro tunc judgment following date conviction became final did not warrant statutory tolling, where such proceedings were limited to correction of clerical errors in the judgment); cf. Brumfield v. Cate, 2010 WL 2267504, at *2 (N.D. Cal. June 4, 2010) (rejecting argument that judgment became final when Superior Court amended abstract of judgment to correct clerical error; "the correction was not and could not have been used to change the effect of the original judgment"); cf. also Speller v. Johnson, 2012 WL 1038624, at *9 n.21 (E.D. Va. Mar. 27, 2012) ("the courts have uniformly held that when a court corrects a clerical error in a criminal judgment, the AEDPA's one-year limitations period does not begin anew when the court corrects the clerical error") (citations and internal quotations omitted); Hamlin v. Swarthout, 2010 WL 5348754, at *3 n.6 (C.D. Cal. Sept. 8, 2010), adopted, 2010 WL 5367554 (C.D. Cal. Dec. 18, 2010) (rejecting argument that conviction became final when Superior Court filed an amended abstract of judgment); Martin v. Province, 2010 WL 5093403, at *2 n.1 (N.D. Okla. Dec. 8, 2010) (amendment of judgment to correct clerical error did not restart limitations period).
Petitioner also is not entitled to statutory tolling during the pendency of Petitioner's subsequent petition for writ of mandate in the Court of Appeal. See Meadows v. Jacquez, 242 Fed. App'x 453, 455 (9th Cir. 2007), cert. denied, 552 U.S. 1192 (2008) (mandamus petitions to compel discovery did not warrant statutory tolling because "they were not applications for State post-conviction or other collateral review within the meaning of AEDPA") (original emphasis); Westin v. Harris, 2012 WL 2860511, at *4 (C.D. Cal. July 3, 2012), adopted, 2012 WL 2849394 (C.D. Cal. July 11, 2012) ("petitioner's various petitions for writ of mandamus relating to the restitution orders, his supposed inability to file pleadings in the superior court, and the conditions of probation did not statutorily toll the limitations period") (citations omitted); Thomas v. Salazar, 559 F. Supp. 2d at 1067-68 (petitions for mandamus, including petition seeking order requiring superior court to rule on petitioner's habeas petition, did not qualify for statutory tolling); see also Moore v. Cain, 298 F.3d 361, 366-67 (5th Cir. 2002), cert. denied, 537 U.S. 1236 (2003) (mandamus application seeking to compel trial court to perform its duty did not seek review of the judgment, and hence did not qualify for statutory tolling).
Petitioner next constructively filed his California Supreme Court petition on November 17, 2011. In certain circumstances, a habeas petitioner may be entitled to "gap tolling" between the denial of a state habeas petition and the filing of a "properly filed" habeas petition in a higher state court. See Carey v. Saffold, 536 U.S. 214, 219-221 (2002). However, an untimely state habeas petition is not a "properly filed" petition for purposes of statutory tolling under section 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408, 412-13 (2005); Carey v. Saffold, 536 U.S. at 225 (California state habeas petition filed after unreasonable delay not "pending" for purposes of section 2244(d)(2)); see also Evans v. Chavis, 546 U.S. 189, 191 (2006) ("The time that an application for state post-conviction review is 'pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law") (citation omitted).
The California Supreme Court denied Petitioner's petition summarily. Where, as here, a state court denies a habeas petition without a "clear indication" that the petition was timely or untimely, a federal habeas court "must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Evans v. Chavis, 546 U.S. at 198; see also Banjo v. Ayers, 614 F.3d 964, 969 (9th Cir. 2010), cert. denied, 131 S. Ct. 3023 (2011) ("We cannot infer from a decision on the merits, or a decision without explanation, that the California court concluded that the petition was timely.") (citation omitted).
In California, a petition is timely if filed within a "reasonable time" after the petitioner learns of the grounds for relief. Carey v. Saffold, 536 U.S. at 235 (citations omitted). In Evans v. Chavis, the petitioner delayed over three years before filing his state court habeas petition, and failed to provide justification for six months of the delay. Evans v. Chavis, 546 U.S. at 192, 201. The Supreme Court deemed the petition untimely, finding "no authority suggesting, . . . [or] any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay 'reasonable.'" Id. at 201. In the present case, Petitioner delayed almost seven months following the Court of Appeal's denial of Petitioner's habeas petition on April 21, 2011, before constructively filing his California Supreme Court petition on November 17, 2011. The Ninth Circuit has held to be unreasonable gaps much shorter than the gap in the present case. See Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir.), cert. denied, 132 S. Ct. 554 (2011) (unjustified gaps of 91 and 81 days unreasonable); Banjo v. Ayers, 614 F.3d at 970 (unexplained gap of 146 days unreasonable); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (unjustified gaps of 115 and 101 days unreasonable). In accordance with these authorities, Petitioner is not entitled to gap tolling between the Court of Appeal's denial of Petitioner's habeas petition on April 21, 2011, and the constructive filing of his California Supreme Court petition on November 17, 2011.
Therefore, the statute of limitations resumed running on April 22, 2011, and expired 160 days later on September 28, 2011. Petitioner's subsequently-filed California Supreme Court petition cannot revive the expired statute. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas petition "well after the AEDPA statute of limitations ended" does not affect the limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) ("[a] state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled"); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge). Moreover, due to Petitioner's unreasonable delay, the Supreme Court habeas petition was not "properly filed" and thus would fail to trigger statutory tolling in any event. Therefore, absent equitable tolling, the present Petition is untimely.
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. at 418); 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 of proving entitlement to equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009). Petitioner must prove 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 prove 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 argues that the Superior Court's asserted failure to inform Petitioner of the Superior Court's August 5, 2010 denial justifies equitable tolling through January 7, 2011, the date Petitioner assertedly learned that the Superior Court had denied Petitioner's habeas petition (Reply, pp. 2-4). The Ninth Circuit has recognized that "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 (2009) (citations and internal quotations omitted). To evaluate Petitioner's equitable tolling argument, the Court must determine: (1) the date Petitioner received notice; (2) whether Petitioner acted diligently to obtain notice; and (3) whether the alleged delay of notice "caused the untimeliness of his filing and made a timely filing impossible." Id. at 997-98.
Respondent does not dispute that Petitioner was unaware of the Superior Court's August 5, 2010 order until he received the order in January of 2011.*fn8 As indicated above, Petitioner's prison mail log shows Petitioner received mail from the Superior Court on January 7, 2011 (Respondent's Lodgment 30, p. "4 of 5"). Therefore, it appears from the present record that Petitioner became aware of the Superior Court's order by January 7, 2011, at the latest.
Respondent contends that Petitioner did not act diligently because Petitioner apparently did not make any inquiry to the Superior Court concerning the fate of his petition until December 19, 2010, some five months after he had filed the petition. This Court need not, and does not decide this issue, because Petitioner has failed to demonstrate that the alleged delay of notice caused the untimeliness of the present Petition and made a timely filing "impossible." See Ramirez v. Yates, 571 F.3d at 997. When Petitioner assertedly received notice of the Superior Court's August 5, 2010 order on January 7, 2011, approximately seven months remained in the limitations period. Even after the Court of Appeal denied Petitioner's March 4, 2011 Court of Appeal petition on April 21, 2011, Petitioner still had over five months to file a timely federal petition. Petitioner failed to do so, instead squandering some of his remaining time in the pursuance of a petition for writ of mandate that did not toll the AEDPA statute of limitations.*fn9 Furthermore, even after the Court of Appeal denied the petition for mandate on August 28, 2011, Petitioner delayed three more months before filing his California Supreme Court petition. The statute expired during this time. Therefore, any alleged lack of notice of the Superior Court's August 4, 2010 order cannot have been "the cause of [Petitioner's] untimeliness." See Spitsyn v. Moore, 345 F.3d at 799; Ramirez v. Yates, 2010 WL 3325610, at *4 (N.D. Cal. Aug. 23, 2010) (on remand from Ninth Circuit, petitioner failed to show an entitlement to equitable tolling where, "[r]ather than filing a federal habeas petition as soon as possible [after he received notice of state court ruling], petitioner filed various other motions in state and federal court"). The Petition is untimely.
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) approving and accepting this Report and Recommendation; (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
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.