United States District Court, E.D. California
ORDER DEFERRING CONSIDERATION OF PETITIONER'S MOTION FOR RECONSIDERATION (DOC. 34) PENDING FURTHER SUBMISSIONS FROM THE PARTIES
ORDER DIRECTING EXPANSION OF THE RECORD AND FURTHER BRIEFING REGARDING
PETITIONER'S MOTION FOR RECONSIDERATION (DOC. 34)
BARBARA A. McAULIFFE, Magistrate Judge.
Petitioner is a state prisoner who proceeded pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is Petitioner's motion for reconsideration of the dismissal of his petition for untimeliness. In Petitioner's motion, which was filed on August 14, 2013, Petitioner argues that he is entitled to equitable tolling of the statute of limitations because of his mental illness during the pertinent period of time.
In this order, the Court will review the briefing and documents submitted in connection with the motion and will schedule additional input from the parties and expansion of the record in order to have an adequate record to present to the Court to evaluate the motion for reconsideration.
I. Summary of the Proceedings Pertinent to the Motion for Reconsideration
A. Procedural Summary
The Magistrate Judge filed findings and recommendations on Respondent's motion to dismiss, dismissing Petitioner's petition after the motion, opposition, and a reply had been filed. Petitioner filed objections, which caused the Court to solicit additional documentation and briefing from the parties regarding Petitioner's allegations and arguments for equitable tolling of the statute of limitations. Thereafter, the Magistrate Judge ordered the initial findings and recommendations vacated and filed new findings and recommendations in June 2013. Petitioner filed objections to the findings and recommendations.
On August 7, 2013, the Court adopted the Magistrate Judge's findings and recommendations, granted the Respondent's motion to dismiss the petition, and dismissed Petitioner's petition for writ of habeas corpus as untimely; judgment was entered and served on Petitioner on the same day.
On August 14, 2013, Petitioner constructively filed a motion for reconsideration of the dismissal in which he sought relief from the judgment and purported to submit "final objections" to the findings and recommendations.
On August 29, 2013, Petitioner filed a notice of appeal from the judgment of dismissal.
On September 11, 2013, Respondent filed opposition to Petitioner's motion for reconsideration.
On November 27, 2013, the Court of Appeals for the Ninth Circuit issued an order in the appeal in which it noted that because the appeal was filed during the pendency of a timely-filed "Fed. R. App. P. 4(a)(4) motion, " the notice of appeal is ineffective until entry of this Court's order disposing of the motion. Further, the proceedings in the Court of Appeals will be held in abeyance pending this Court's resolution of the motion. (Doc. 43.)
Although the time for filing a reply to Respondent's opposition to the motion for reconsideration has passed, Petitioner failed to file a reply.
B. Summary of the Chronology Pertinent to Equitable Tolling
Direct review of Petitioner's judgment concluded when the California Supreme Court (CSC) denied a petition for review on April 14, 2010, and the statute of limitations would otherwise have begun running ninety days later on July 14, 2010. However, because Petitioner had already filed in June 2010 a habeas petition in the trial court (the Kern County Superior Court or KCSC), the pendency of the KCSC habeas petition statutorily tolled the running of the statute of limitations until August 25, 2010, when the KCSC denied the petition and sent notice of the denial to Petitioner.
The statute began to run again on August 26, 2010, and expired on August 25, 2011. During that time interval, Petitioner filed a petition here, which was pending between August 17, 2011, and February 13, 2012, when it was denied without prejudice for being a mixed petition containing a claim as to which state court remedies had not been exhausted. Petitioner asserted that he had mailed the petition to the state intermediate appellate court (California Court of Appeal or CCA), which had in turn erroneously forwarded it to this Court; he had never intended to file a petition in this Court at that time, but rather to exhaust his state court remedies by filing in the CCA. Further, he alleged that it was not until October 3, 2011, that he received notice of the KCSC's denial of his habeas petition that had been filed and mailed on August 25, 2010. Petitioner sent inquiries seeking a decision on the petition to the KCSC on June 26, 2011; July 25, 2011; and August 9, 2011. Petitioner also filed a motion for a transcript in the KCSC on or about August 13, 2011, which was denied by the KCSC on September 29, 2011, in a decision stating that the petition remained denied, and it had no authority to reconsider the petition. Petitioner filed in the California Supreme Court (CSC) a second state habeas petition on April 28, 2012, after the limitations period had run. The petition was resubmitted but disregarded by the CSC in August 2012.
The petition in the instant case was dismissed because of the long delay between the KCSC's denial of August 25, 2010, and Petitioner's first inquiry seeking a decision that was directed to the KCSC on June 26, 2011. Further, the Court concluded that Petitioner had delayed in the exhaustion of his state court remedies between October 2011, when he received notice that the KCSC had denied his petition, and April 28, 2012, when he filed a petition in the CSC. Largely on the basis of these delays, Petitioner was found not to have been sufficiently diligent to warrant equitable tolling. (Fdgs. & recs. to dimiss pet., doc. 28, 15-27.)
II. Motion for Reconsideration
In the motion currently before the Court, Petitioner seeks this Court to reconsider the motion to dismiss, the Court's decision not to issue a certificate of appealability, and Petitioner's "last objection to findings and recommendations...." (Mot., doc. 34, 1.) Petitioner asks for this ...