United States District Court, Central District of California
November 5, 2014
REGIMEN C. CALDWELL, Petitioner,
E. VALENZUELA, et al., Respondents
Regimen C. Caldwell, Petitioner, Pro se, San Luis Obispo, CA.
For E. Valenzuela, Respondent: Dana M Ali, CAAG - Office of Attorney General, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Honorable Jacqueline Chooljian, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable R. Gary Klausner, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On March 27, 2014,  petitioner, who is proceeding pro se, signed and is deemed to have constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (" Petition") with multiple attachments (" Petition Attachments" or " Petition Att."). Petitioner challenges a 1981 conviction following a guilty plea in Los Angeles County Superior Court. (Petition at 2). Construed liberally in light of the Petition Attachments, the Petition raises the following grounds for relief: (1) petitioner's counsel was ineffective during petitioner's " sentencing, plea agreement/contract, " failed to conduct an investigation and had a conflict of interest with petitioner in connection with petitioner's request to withdraw his plea; (2) the prosecution deprived petitioner of due process and equal protection because the prosecutor committed misconduct during the " plea agreement, sentencing and opening statements"; (3) the trial judge abused his discretion by allowing petitioner's counsel to represent petitioner during discussions about a waiver of misconduct during sentencing and by failing to permit petitioner to speak when petitioner sought to withdraw his plea; and (4) new " evidence" that was not available before his sentence became final would change the outcome of the proceedings. (Petition at 5-6; Petition Att. 4 at 9).
On April 11, 2014, the Court ordered the parties to file memoranda addressing whether the Petition is barred by the statute of limitations. On June 12, 2014, respondents filed a " Memorandum Addressing Timeliness of Petition for Writ of Habeas Corpus [etc.]" (" Respondents' Memo") and lodged multiple documents (" Lodged Doc."). On July 21, 2014, petitioner filed an opposition to Respondents' Memo (" Opposition") with an exhibit (" Opp. Ex. A") consisting of a declaration of petitioner. On July 30, 2014, respondents filed a reply (" Reply"). Based on the record and the applicable law, the Petition should be dismissed with prejudice because all of the claims therein are time-barred.
II. PROCEDURAL HISTORY
On December 7, 1981, in Los Angeles County Superior Court Case No. A367343, petitioner pleaded guilty to first degree murder and admitted using a firearm during the offense. (Petition at 2; Petition Att. 4, Ex. A). Petitioner avoided a potential sentence of life without the possibility of parole in exchange for a sentence of 27 years to life. (Petition Att. 4, Ex. A at 5-13). On January 12, 1982, the trial court denied petitioner's request to withdraw his plea, and sentenced petitioner in accordance with the plea agreement to 27 years to life in state prison. (Petition at 2; Petition Att. 4, Ex. B).
Later in 1982, petitioner learned that the attorney who represented him during his plea and sentencing -- Pierpont Laidley -- had not filed an appeal. (Opp. Ex. A at ¶ ¶ 1, 8). After petitioner's wife unsuccessfully attempted telephonically to reach Laidley on multiple occasions, she retained a new attorney -- Louis Grant. (Opp. Ex. A at ¶ 8). Petitioner sent Grant " all of [petitioner's] court transcripts" and other pertinent items. (Opp. Ex A at ¶ 8). Grant did not file an appeal, became unreachable, and never returned petitioner's transcripts to him. (Opp. Ex. A at ¶ 9). Petitioner ultimately did not pursue a direct appeal.
In December 1982 -- a year after petitioner pleaded guilty in December 1981 -- he assertedly discovered evidence that certain gun and fingerprint evidence did not implicate him, contrary to what he had been told at the time of his plea. (Petition Att. 4 at 6).
After unsuccessfully attempting to reach Laidley " for over 25 years, " Laidley apparently responded to petitioner's wife, who retained Laidley in 2006. (Opp. Ex. A at ¶ ¶ 8, 10).
On December 4, 2008,  petitioner, through attorney Laidley, filed a petition for writ of habeas corpus (" First State Petition") in Los Angeles County Superior Court Case No. A367343, asserting: (1) the State of California violated petitioner's plea agreement by imprisoning him beyond 27 years; and (2) petitioner's plea was coerced. (Lodged Docs. 1, 2). Copies of multiple documents, including transcripts of petitioner's plea and sentencing hearings, and a declaration of petitioner executed on October 27, 2008 which references the transcripts, were included in an appendix to the First State Petition (" First State Petition Appendix" or " Lodged Doc. 1 Appx."). The proofs of service attached to the First State Petition and the First State Petition Appendix reflect that both documents were sent to petitioner on December 2, 2008. (Lodged Doc. 1; Lodged Doc. 1 Appx.). On February 20, 2009, the Superior Court denied the First State Petition on the merits and on procedural grounds. (Lodged Doc. 2).
On or about November 18, 2010, petitioner, proceeding pro se, filed a petition for writ of habeas corpus (" Second State Petition") in California Court of Appeal Case No. B228885, challenging a January 2009 Board of Parole Hearings decision to deny petitioner parole. (Lodged Docs. 3, 4). On March 29, 2011, the Court of Appeal denied the Second State Petition on the merits. (Lodged Doc. 4).
Petitioner assertedly contacted Laidley in 2012 to tell him about a series of Supreme Court cases that petitioner viewed to be helpful to his cause, but Laidley got mad at petitioner, hung up on him, and has not been in contact with petitioner since then. (Opp. Ex. A at ¶ 10).
On or about October 17, 2012, petitioner, whom the Court presumes was proceeding pro se, filed another petition for writ of habeas corpus (" Third State Petition") in Los Angeles County Superior Court Case No. A367343. On October 4, 2013, the Superior Court denied the Third State Petition because it raised claims going to petitioner's guilt or innocence or challenging the agreed-upon disposition, which had been waived by virtue of petitioner's plea. (Petition Att. 3).
On November 27, 2013, petitioner, proceeding pro se, filed a petition for writ of habeas corpus (" Fourth State Petition") in California Court of Appeal Case No. B252690, raising the same claims asserted in the operative federal Petition. (Petition at 2; Lodged Doc. 6 Att. 3; Petition Att. 4). On December 20, 2013, the California Court of Appeal denied the Fourth State Petition for failing to state facts or evidence sufficient to demonstrate entitlement to relief. (Petition Att. 2; Lodged Doc. 5).
On January 8, 2014, petitioner, proceeding pro se, constructively filed a petition for writ of habeas corpus (" Fifth State Petition") in California Supreme Court Case No. S215856, raising the same claims asserted in the operative federal Petition. (Petition at 3; Lodged Doc. 6). On March 12, 2014, the California Supreme Court denied the Fifth State Petition, with a citation to In re Robbins, 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998) (Petition at 3; Petition Att. 1), signifying that the Fifth State Petition was untimely. See Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007).
As noted above, petitioner constructively filed the instant Petition on March 27, 2014.
A. Petitioner's Claims Are Time-Barred and Subject to Dismissal with Prejudice
1. Accrual of the Statute of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), which governs all petitions for writs of habeas corpus filed in federal court after its enactment. Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA instituted a one-year statute of limitations for the filing of habeas petitions by persons in state custody. 28 U.S.C. § 2244(d)(1). The limitation period runs from the latest of: (1) 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)); (2) 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 (28 U.S.C. § 2244(d)(1)(B)); (3) 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 (28 U.S.C. § 2244(d)(1)(C)); or (4) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence (28 U.S.C. § 2244(d)(1)(D)). The Court must evaluate the commencement of the limitations period on a claim-by-claim basis. Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).
a. 28 U.S.C. § 2244(d)(1)(A)
For prisoners whose convictions became final prior to AEDPA's effective date, April 24, 1996, a one-year grace period applies. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978, 122 S.Ct. 406, 151 L.Ed.2d 308 (2001). As petitioner's conviction in this case became final well before the AEDPA's effective date, the statute of limitations commenced to run on April 25, 1996, unless subsections B, C or D of 28 U.S.C. § 2244(d)(1) apply. See 28 U.S.C. § 2244(d)(1)(A).
b. 28 U.S.C. § 2244(d)(1)(B)
Subsection B of 28 U.S.C. § 2244(d)(1) has no application in the present case. Petitioner does not allege a state-created impediment to filing prevented petitioner from presenting his claims in any form to any court. Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009) (emphasis original; citation omitted). The alleged ineffective assistance of counsel, which assertedly resulted in petitioner waiving his appellate rights and prevented him from appealing his conviction, is not a state-created impediment. See 28 U.S.C. § 2244(d)(1)(B); Ramirez v. Yates, 571 F.3d at 1000.
c. 28 U.S.C. § 2244(d)(1)(C)
Subsection C of 28 U.S.C. § 2244(d)(1) also has no application in the present case to provide a later commencement date. Petitioner does not assert, and his claims do not appear to be predicated on a constitutional right " newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review."
To the extent petitioner suggests that Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) or Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) provide a later commencement date (Petition Att. 4 at 1, 11), he is incorrect as both such cases were decided well before AEDPA's statute of limitations period commenced to run for petitioner in April 1996.
To the extent petitioner suggests that three Supreme Court Cases -- Lafler v. Cooper, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), Missouri v. Frye, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) -- extended the Sixth Amendment right to counsel to negotiating plea deals and afford him a later commencement date for the statute of limitations (Petition Att. 4 at 11), he is again mistaken. The right to counsel during plea negotiations is not a new concept. The Sixth Amendment entitles criminal defendants to counsel during " critical stages" of a criminal proceeding. Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2003) (citing United States v. Wade, 388 U.S. 218, 227-28, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). The Supreme Court recognized that plea proceedings are a " critical stage" in which defendants are entitled to counsel in 1963. See White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (per curiam). Lafler and Frye only applied the Strickland test to a new situation -- i.e., where (unlike here) a defendant does not accept a plea deal. Such cases did not create a new constitutional right. See Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012) (" Because the Court in Frye and Lafler repeatedly noted its application of an established rule to the underlying facts, these cases did not break new ground or impose a new obligation on the State or Federal Government. . . .[N]either case decided a new rule of constitutional law."); see also Chaidez v. United States, 133 S.Ct. 1103, 1115, 185 L.Ed.2d 149 (2013) (" [D]espite the many different settings in which it has been applied, we have never found that an application of Strickland [to a particular form of attorney misconduct] resulted in a new rule (citing, inter alia, Lafler). . . . In short, where we merely apply Strickland in a way that corresponds to an evolution of professional norms, we make no new law.").
Nor does Martinez afford petitioner a latter trigger date for the statute of limitations. Martinez dealt with whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial could constitute cause to excuse a procedural default.
Martinez, 132 S.Ct. at 1315. Martinez did not announce a new rule of constitutional law.
Buenrostro, 697 F.3d at 1139. Nor does Martinez have any bearing on timeliness under AEDPA. See, e.g., Owens v. Ryan, 2014 WL 4722491, at *8-10 (D. Ariz. Sept. 23, 2014) (finding same); Cabrera v. Pennywell, 2014 WL 1271208, at *3 n.4 (C.D. Cal. Mar. 24, 2014) (same; collecting other district court cases finding same); Cooper v. Knipp, 2014 WL 349246, at *4 (E.D. Cal. Jan. 30, 2014) (same); Felix v. Cate, 2012 WL 2874398, at *10 (C.D. Cal. May 8, 2012) (same), report and recommendation adopted, 2012 WL 2873891 (C.D. Cal. July 13, 2012). In short, petitioner is not entitled to a later commencement date under Section 2244(d)(1)(C).
d. 28 U.S.C. § 2244(d)(1)(D)
Petitioner is likewise not entitled to a latter commencement date under Section 2244(d)(1)(D). Under Section 2244(d)(1)(D), the statute of limitations commences when a petitioner knows, or through the exercise of due diligence could discover, the factual predicate of his claims, not when a petitioner learns the legal significance of those facts. Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir. 2003); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001), cert. denied, 549 U.S. 904, 127 S.Ct. 230, 166 L.Ed.2d 182 (2006). Section 2244(d)(1)(D) does not require the maximum feasible diligence, but it does require reasonable diligence in the circumstances. Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir.), cert. denied, 133 S.Ct. 769, 184 L.Ed.2d 508 (2012). " [T]o have the factual predicate for a habeas petition based on ineffective assistance of counsel, a petitioner must have discovered (or with the exercise of due diligence could have discovered) facts suggesting both unreasonable performance and resulting prejudice."
Hasan, 254 F.3d at 1154 (emphasis in original). " [T]he petitioner bears the burden of proving that he exercised due diligence, in order for the statute of limitations to begin running from the date he discovered the factual predicate of his claim, pursuant to 28 U.S.C. § 2244(d)(1)(D)."
DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir. 2006).
In this case, all of petitioner's claims arise from events which occurred well before the commencement of the statute of limitations and which were known to him either contemporaneously or within a year of his guilty plea.
Petitioner's first claim of ineffective assistance of counsel is predicated on counsel's performance during the plea and sentencing proceedings (which encompassed the proceedings on petitioner's request to withdraw his guilty plea), the asserted failure to investigate gun and fingerprint evidence, and the asserted conflict of interest due to counsel's disagreement with petitioner's request to withdraw his plea. As petitioner was present at and a party to the 1981 plea and 1982 sentencing proceedings about which he complains, he contemporaneously knew about the events which are the subject of such predicates of his ineffective assistance of counsel claim. Petitioner likewise knew about the asserted conflict of interest relative to the motion to withdraw his plea at the time of sentencing as his attorney stated his disagreement with petitioner's request on the record, in petitioner's presence, at such proceeding. As to the gun and fingerprint evidence which his attorney assertedly failed to investigate, petitioner has attested that he became aware that such evidence assertedly did not implicate him by December 1982, i.e., a year after his December 1981 plea. (Petition Att. 4 at 6). Accordingly, petitioner knew about his attorney's asserted failure to investigate such evidence -- as well as all of the other predicates for his ineffective assistance of counsel claim -- well before the statute of limitations commenced to run in April 1996.
Petitioner's second and third claims are predicated on the conduct of the prosecutor and judge during the plea and sentencing proceedings. As with most of the factual predicates for petitioner's ineffective assistance of counsel claim, petitioner knew of such conduct at the time it occurred in 1981 and 1982 because he was present at such proceedings. Accordingly, petitioner is not entitled to a delayed accrual date for the statute of limitations relating to such claims.
Finally, petitioner is not entitled to a later accrual date based on his last claim -- that there is new " evidence" that was not available before his sentence became final and would change the outcome of the proceedings. To the extent petitioner intends to suggest that the Supreme Court's 2012 decisions in Lafler v. Cooper, Missouri v. Frye, and Martinez v. Ryan, trigger a later commencement date under Section 2244(d)(1)(D), he is incorrect because such legal decisions do not constitute " evidence" and are not factual predicates. To the extent petitioner intends to suggest that his discovery of exculpatory gun/fingerprint evidence triggers a later accrual date, he fails to so demonstrate because, as noted above, he concedely was aware of such evidence in 1982. (Petition Att. 4 at 6). Finally, to the extent petitioner suggests that his assertedly delayed receipt of the plea and sentencing transcripts in 2010, affords him a later accrual date under Section 2244(d)(1)(D), he again fails to so demonstrate and is incorrect. As noted above, a claim accrues under Section 2244(d)(1)(D) on the date a petitioner becomes aware, or should become aware of the " factual predicates" of those claims, not on some later date when a petitioner believes that he has amassed enough evidence to prove his claims. " AEDPA does not convey a right to an extended delay while a habeas petitioner gathers every possible scrap of evidence that might support his claim." Jurado v. Burt, 337 F.3d 638, 644 (6th Cir. 2003); see also Tolbert v. Cockrell, 2001 WL 1516744, *4 (N.D. Tex. November 7, 1991) (petitioner confuses knowledge of factual predicates of his claims with time permitted for gathering evidence in support of his claims). Petitioner was present at the plea and sentencing proceedings and thus was contemporaneously aware of what occurred at such proceedings and of what is reflected in the transcripts. Moreover, although he now claims that he received the transcripts in 2010, he admittedly had the transcripts in or about 1982 when he sent them to Grant (apparently without retaining a copy) to work on his appeal. (Opp. Ex A at ¶ 8). Thus, irrespective of whether or not petitioner had the transcripts physically in hand at all times, he was contemporaneously aware of the factual predicates of his claims no later than the date on which the statute of limitations commenced to run in April 1996. See Johnson v. Lewis, 310 F.Supp.2d 1121, 1126 (C.D. Cal. 2004) (Section 2244(d)(1)(D) inapplicable when " petitioner's own state court records establish that he was well aware of the 'factual predicate' for his pending claims . . . before the . . . limitations period began to run").
In light of the foregoing, the statute of limitations in petitioner's case commenced to run on April 25, 1996, and, absent tolling, expired on April 24, 1997.
2. Statutory Tolling
Title 28 U.S.C. § 2244(d)(2) provides that 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" the one year statute of limitations period. Petitioner " bears the burden of proving that the statute of limitations was tolled." Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010), cert. denied, 131 S.Ct. 3023, 180 L.Ed.2d 844 (2011).
Here, while petitioner filed numerous state habeas petitions, none were filed between April 25, 1996, and April 24, 1997, when the statute of limitations in petitioner's case ran. Petitioner's late-filed petitions cannot revive the expired limitations period for the Petition. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (§ 2244(d) does not permit the reinitiation of the limitations period that ended before a state petition is filed), cert. denied, 540 U.S. 924, 124 S.Ct. 328, 157 L.Ed.2d 224 (2003). Accordingly, statutory tolling does not render the Petition timely filed.
3. Equitable Tolling
Petitioner argues that he is entitled to equitable tolling based on his reliance on " unfaithful, noncommital" counsel and otherwise because petitioner is not qualified to represent himself. (Opposition at 4). The United States Supreme Court has recognized that 28 U.S.C. § 2244(d) is subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 645, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). In order for a litigant to be entitled to equitable tolling, he must establish that: (1) he has been pursuing his rights diligently; and (2) some extraordinary circumstance stood in his way. Id. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)); Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007); Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). " [T]he threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule." Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.), cert. denied, 537 U.S. 1003, 123 S.Ct. 496, 154 L.Ed.2d 399 (2002)). Petitioner must prove that the alleged extraordinary circumstance was a proximate cause of his untimeliness and that the extraordinary circumstance made it impossible to file a petition on time. Ramirez v. Yates, 571 F.3d at 997; Roy v. Lampert, 465 F.3d 964, 973 (9th Cir. 2006) (citing Stillman v. Lamarque, 319 F.3d 1199, 1203 (9th Cir. 2003)), cert. denied, 549 U.S. 1317, 127 S.Ct. 1880, 167 L.Ed.2d 386 (2007).
Petitioner has pointed to no extraordinary circumstance that made it impossible for him to file a timely petition. Nor has petitioner shown that he was diligent in pursuing his claims. Petitioner admits that he learned in or about February 1982 that attorney Laidley did not file an appeal of petitioner's conviction. (Opp. Ex. A at ¶ ¶ 3, 8). Petitioner thereafter reportedly retained Louis Grant to represent petitioner, provided Grant with all of petitioner's transcripts and files, but Grant became unreachable, did not file an appeal, and eventually was subject to State Bar disciplinary proceedings. (Opp Ex. A at ¶ 8). Petitioner, through his wife, thereafter again tried to get in contact with Laidley, but counsel did not respond for 25 years. (Opp. Ex. A at ¶ 8). Petitioner rehired Laidley in 2006 -- 24 years after he learned that such counsel did not file an appeal. (Opp. Ex. ¶ 10). Laidley filed the First State Petition in 2008. (Lodged Doc. 1).
While petitioner reasonably could have relied on Laidley/Grant to file an appeal during the time that they were appointed/retained until the point that they became unreachable, see Gibbs v. Legrand, 767 F.3d 879, 890 (9th Cir. 2014) (finding diligence where petitioner relied on absent attorney to file a petition) (citations omitted), petitioner could not rely on his purported attempts to contact counsel for 25 years to no avail, while not attempting to retain other counsel, or to reacquire his transcripts so that he could proceed pro se . This is not the kind of diligence necessary to warrant equitable tolling. Compare Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007) (no equitable tolling where petitioner was not diligent in that he failed to seek any state court relief for six years). Moreover, even if petitioner were entitled to tolling until he retained counsel in 2006, and thereafter until counsel filed and served petitioner with the First State Petition in 2008 (attaching the transcripts), the statute of limitations lapsed between the denial of the First State Petition and filing of the Second State Petition. Nothing prevented petitioner from filing, pro se, the arguments raised in the First State Petition or the grounds asserted in the instant Petition to the higher state courts after the First State Petition was denied. Petitioner's ignorance of the law or lack of legal training are not extraordinary circumstances that would warrant equitable tolling before or after the denial of the First State Petition. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).
For the foregoing reasons, petitioner fails to demonstrate that he is entitled to equitable tolling sufficient to render the Petition timely filed.
IT IS THEREFORE RECOMMENDED that the District Judge issue an Order: (1) approving and accepting this Report and Recommendation; and (2) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.