United States District Court, E.D. California
JAMES T. MABBS, Petitioner,
CONNIE GIPSON, Respondent.
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, Magistrate Judge.
Introduction and Background
By Order, filed on February 19, 2014, the undersigned, in adjudicating respondent's August 16, 2013, motion to dismiss the petition on grounds of untimeliness, stated that further briefing would be required to determine whether petitioner has presented any basis for equitable tolling. (ECF No. 29.) In particular, petitioner was ordered to substantiate his claim that he was in county jail from October 14, 2010 through May 11, 2011 without access to his legal materials and to provide greater detail regarding the dates of the alleged prison lockdowns along with the restrictions enforced by the prison during those lockdowns. (Id. at 10.) Respondent was ordered to file a reply responding to all arguments set forth in petitioner's opposition (ECF No. 28) and response to the February 19, 2014 order (ECF No. 32). (Id.)
As previously described, the background of this action is as follows:
A jury convicted petitioner of assault with a semiautomatic firearm and found that he personally used a firearm and acted to benefit a criminal street gang. Lod. Docs. 1, 2. The trial court sentenced petitioner to 29 years in prison. Id . On April 6, 2009, petitioner filed an appeal with the California Court of Appeal, Third Appellate District. On November 15, 2010, the Court of Appeal reduced petitioner's sentence to 23 years and affirmed the judgment in all other respects. Lod. Doc. 2. Petitioner did not seek review in the California Supreme Court.
Subsequently, petitioner filed four pro se state post-conviction collateral challenges, all of which were petitions for writs of habeas corpus. On July 1, 2011, petitioner filed for writ of habeas corpus in the Butte County Superior Court. Lod. Doc. 4. This petition was denied on July 19, 2011. Lod. Doc. 5. On December 13, 2011, petitioner again filed for writ of habeas corpus in the Butte County Superior Court. Lod. Doc. 6. The court denied this petition on December 28, 2011. Lod. Doc. 7. On April 23, 2012, petitioner filed for writ of habeas corpus in the California Court of Appeal. Lod. Doc. 8. This petition was summarily denied on May 10, 2012. Lod. Doc. 9. On July 25, 2012, petitioner filed for writ of habeas corpus in the California Supreme Court. Lod. Doc. 10. The court denied this petition on January 3, 2013. Lod. Doc. 11. Petitioner filed his initial federal petition for writ of habeas corpus on March 20, 2013. ECF No. 1.
(ECF No. 29, at 1-2.) This court determined that petitioner's conviction became final on December 25, 2010. (Id. at 3.) As such, absent any applicable tolling or an extended initiation of the limitations period, petitioner had until December 25, 2011 to file a timely federal habeas petition. (Id.)
In his opposition, petitioner asserted that he was entitled to statutory and equitable tolling. This court declined to consider the merits of petitioner's tolling arguments absent further developing of the record by the parties. (ECF No. 29, at 9-10.) With his supplemental brief, petitioner enclosed minute orders showing that he was housed in Butte County Jail from November 5, 2010 to January 20, 2011. (ECF No. 32, at 3-7.) Petitioner also enclosed several inmate requests ("CDCR 22"), wherein he sought access to his legal materials, and responses to the CDCR 22's. (Id. at 8-12.) In his brief, petitioner explained that he could not obtain specific information regarding lockdown dates and restrictions. (Id., at 1.)
Respondent filed a reply responding to all of petitioner's arguments. The undersigned considers the factual record as developed as it will become and thus addresses the merits of petitioner's arguments for tolling. The undersigned concludes that petitioner is not entitled to equitable tolling because petitioner has failed to meet his burden of showing that he was reasonably diligent in pursuing his remedies and that extraordinary circumstances made it impossible for him to file a timely federal petition. Because the petition is untimely, the undersigned does not address petitioner's arguments regarding the California Court of Appeal's jurisdiction to modify his sentence and his request that this court recall the remittitur issued by the California Court of Appeal. Accordingly, defendant's motion to dismiss the petition as untimely (ECF No. 17) should be GRANTED and the petition dismissed with prejudice. Discussion
As this court previously stated, "absent any applicable tolling or an extended initiation of the limitations period, petitioner had until December 25, 2011 to file a timely federal habeas petition." (ECF No. 29 at 3.) The court previously discussed the issue of statutory tolling, concluding that petitioner's federal petition was untimely:
To sum up petitioner's situation at the time his second petition was denied:
1. The statute commenced to run December 26, 2010;
2. By the time the first state habeas petition was filed (July 1, 2011), petitioner had used up 187 days of his 365 (one year) AEDPA limitations period;
3. From the time the first Superior Court petition was denied to the filing of the second Superior Court petitioner (and for which petitioner is not entitled to gap tolling), petitioner utilized 146 more days of the AEDPA limitations period for a total thus far of 333, days, ...