ORDER ADOPTING THE REPORT AND RECOMMENDATION [doc. #7]; OVERRRULING OBJECTIONS and GRANTING MOTION TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE [doc. #4]
M. JAMES LORENZ, District Judge.
Petitioner Thomas Anthony Diaz, who is represented by counsel, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. The matter was referred to United States Magistrate Judge Mitchell D. Dembin for a Report and Recommendation ("Report"). See 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. The magistrate judge issued a Report recommending the petition be denied and requiring objections, if any, to the Report to be filed no later than January 13, 2014. [doc. #7]
In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report... to which objection is made, " and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
Petitioner timely filed objections to the Report and therefore, the Court will review the findings of the magistrate judge de novo.
As set forth in the Report, petitioner was convicted of six counts and sentenced to a 16-year term of incarceration. In the state appellate court, petitioner raised two claims on direct appeal. On August 29, 2011, the appeal was denied and the judgment affirmed in its entirety. Petitioner further appealed the same claims to the California Supreme Court. On November 16, 2011, the California Supreme court denied the appeal without citation. On February 14, 2012, petitioner's conviction became final.
On June 20, 2013, petitioner filed a petition for writ of habeas corpus in this Court, which raised the same claims that were presented on direct appeal in the state court. Respondent filed a motion to dismiss the petition contending the petition was untimely under AEDPA. In this case, it is undisputed that AEDPA's limitation period expired on February 14, 2013, but the petition was not filed until June 20, 2013. Thus the petition is facially untimely and can only be timely if the limitation period is tolled under statutory or equitable tolling principles. Petitioner opposed the motion. Upon review of the briefing, the magistrate judge recommended that the motion to dismiss the habeas petition be granted.
B. Standard of Review
The AEDPA imposes a one-year limitations period for the filing of a federal habeas petition. 28 U.S.C. § 2244(d)(1). The statute provides, in pertinent part, that the limitations period runs from the latest of the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). "Direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999).
The timeliness provision in the federal habeas corpus statute is subject to equitable tolling. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). A federal habeas petitioner "is entitled to equitable tolling' only if he shows (1) that he has been pursuing his rights 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)). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999). The extraordinary circumstances must be the cause of the untimeliness. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).
When, as here, it appears that the petition falls outside the one-year time period, the petitioner bears the burden of demonstrating that the limitation period was sufficiently tolled under statutory or equitable principles. See Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002). The burden remains on petitioner to show that the "extraordinary circumstances" he identifies were the proximate cause of his untimeliness, rather than merely a lack of diligence on his part. Spitsyn, 345 F.3d at 799 (9th Cir. 2003); Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir.2003). This standard is difficult to meet and ordinary claims of attorney negligence do not justify equitable tolling. Holland, 130 S.Ct. at 2564; Spitsyn, 345 F.3d at 800.
In response to the motion to dismiss the petition as untimely, respondent's counsel states that he prepared a petition for filing and appeared at the office of the Clerk of the Court for the Southern District of California on August 29, 2012. He paid the filing fee and was instructed to file the petition electronically. Counsel provided the filing instructions to a member of his staff and "believed the petition and accompanying memorandum were timely filed." (Opp. at 2.) In mid-June 2013, counsel checked the court's electronic docket and could not locate the case. On June 20, 2013, the petition was electronically filed and a case number assigned.
Petitioner contends that the petition should be deemed timely based on either the doctrine of ...