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Ashley v. Biter

United States District Court, C.D. California

November 21, 2014

EDDIE ASHLEY, Petitioner,
v.
MARTIN BITER, [1] Warden, Respondent

Eddie Ashley, Petitioner, Pro se, Delano, CA.

For P. Denny, Respondent: Colleen M Tiedemann, Lance E Winterss, LEAD ATTORNEYS, CAAG - Office of The Attorney General, California Department of Justice, Los Angeles, CA; David A Wildman, CAAG - Office of Attorney General, Los Angeles, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO DISMISS ACTION AS UNTIMELY [28 U.S.C. § 636; General Order 05-07]

Hon. Jay C. Gandhi, United States Magistrate Judge.

I.

INTRODUCTION AND SUMMARY

On March 3, 2014, petitioner Eddie Ashley (" Petitioner"), a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (" Petition").[2] However, since Petitioner's statute of limitation period expired on August 12, 2013, the Petition is untimely. Accordingly, the Court recommends that the Petition be denied and the action be dismissed with prejudice.

II.

PRIOR PROCEEDINGS

On February 4, 2010, Petitioner pled no contest to one count of attempted murder and one count of assault with a semiautomatic firearm. (Pet. at 2; Lodg. No. 1 at 3.) In accordance with his plea agreement, Petitioner was sentenced to twenty-four years state imprisonment. (Id.)

On October 26, 2011, the California Court of Appeal affirmed the judgment. (Lodg. No. 1.) Thereafter, Petitioner filed a petition for review in the California Supreme Court, which was denied on January 4, 2012. (Lodg. Nos. 2, 3.)

On December 13, 2012, Petitioner filed a state habeas petition in the Los Angeles County Superior Court, which was denied on February 13, 2013. (Lodg. Nos. 4, 9.)

On April 14, 2013, Petitioner filed a second state habeas petition in the Los Angeles County Superior Court, which was denied on June 20, 2013. (Lodg. Nos. 5, 6.)

On September 5, 2013, Petitioner filed a third state habeas petition in the California Court of Appeal, which was denied on January 10, 2014.[3] (Lodg. Nos. 7, 8.)

The instant Petition was filed on March 3, 2014.

III.

DISCUSSION

A. One-Year Statute of Limitation

The Anti-Terrorism and Effective Death Penalty Act (" AEDPA") unambiguously mandates that 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." 28 U.S.C. § 2244(d)(1) (emphasis added); see also Lawrence v. Florida, 549 U.S. 327, 329, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007). After the one-year limitation period expires, a prisoner's " ability to challenge the lawfulness of [his] incarceration is permanently foreclosed." Lott, 304 F.3d at 922.

To assess whether a petition is timely filed under AEDPA, it is essential to determine when AEDPA's limitation period starts. By statute, AEDPA's limitation period begins to run from the latest of four possible events:

(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; "

(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; "

(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; " 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)(A)-(D).

Ordinarily, the starting date of the limitation period is the date on which the judgment became final. See, e.g., Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). It is only in " rare circumstances" that the other three events will apply, allowing " the limitation period [to] run from a date later than the date on which the judgment became final." Austin v. Ramirez-Palmer, 2001 WL 1167553, at *1 (N.D. Cal. Sept. 25, 2001).

AEDPA may also allow for statutory tolling and/or equitable tolling. Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002) (" A petition can also be timely, even if filed after the one-year time period has expired, when statutory or equitable tolling applies."). However, " a court must first determine whether a petition was untimely under the statute itself before it considers whether equitable [or statutory] tolling should be applied." Id.

Accordingly, a district court " begin[s] [its statute of limitation analysis under AEDPA] with the relevant timeliness calculations." Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). " [T]he next step is to determine whether the limitation[] period should be statutorily tolled, " and " [t]he final step is to determine whether equitable tolling applies." Shafer v. Knowles, 2003 WL 22127878, at *2 (N.D. Cal. Aug. 14, 2003). Following this framework, the Court begins its analysis with the relevant timeliness inquiry.

B. The Petition is Facially Untimely

Initially, the Court finds that the limitation period runs from the date Petitioner's conviction became final, as there is no indication that any other later event triggered the limitation period. See 28 U.S.C. § 2244(d)(1)(A)-(D).

The California Supreme Court denied the petition for review on January 4, 2012. Because direct review includes the 90 days during which Petitioner could have filed a petition for writ of certiorari in the United States Supreme Court, Petitioner's judgment became final on April 3, 2012 (90 days after the petition for review was denied). See 28 U.S.C. § 2244(d)(1)(A) (judgment becomes final either " by the conclusion of direct review or the expiration of the time for seeking such review"). Accordingly, AEDPA's limitation period expired one year later on April 3, 2013. See 28 U.S.C. § 2244(d)(1). Thus, since Petitioner waited until March 3, 2014 to file the Petition, it can be timely only if the limitation period is tolled under statutory or equitable tolling principles.

C. Petitioner is Entitled to Statutory Tolling, but it is Insufficient to Render his Petition Timely

Statutory tolling is available under AEDPA during the time a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. 28 U.S.C. § 2244(d)(2). However, tolling is not available between the date a petitioner's conviction becomes final for AEDPA purposes, and the filing of his first state habeas petition. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Moreover, once the limitation period has expired, later-filed state habeas petitions do not toll the limitation period. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).

Here, when Petitioner filed his first state habeas petition on December 13, 2012, 253 days of his one-year statute of limitation period had already run. Thus, once that petition was denied on February 13, 2013, he had 112 days left to file his federal habeas petition.

Petitioner allowed 59 of those days to pass before he filed his second state habeas petition on April 14, 2013.[4] Thus, when his second petition was denied on June 20, 2013, Petitioner had 53 days -- or until August 12, 2013 -- to file his federal habeas petition. As noted above, Petitioner did not file the instant Petition until March 3, 2014.

Moreover, Petitioner did not file his third state habeas petition until September 5, 2013, more than three weeks after his statutorily-tolled AEDPA limitation period expired. (Lodg. No. 7.) Thus, unless Petitioner is entitled to equitable tolling, he is not entitled to any tolling for that period, and his Petition is untimely. See Jiminez, 276 F.3d at 482.[5]

D. Petitioner is Not Entitled to Equitable Tolling

The United States Supreme Court has decided that " § 2244(d) is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010). Tolling is appropriate when " extraordinary circumstances" beyond a petitioner's control " make it impossible to file a petition on time." Id. at 2562; Miranda, 292 F.3d at 1066 (citation omitted).

As such, a petitioner seeking equitable tolling must establish two elements: " (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Moreover, a petitioner must establish a causal connection between the extraordinary circumstance and his failure to file a timely petition. See Bryant v. Schriro, 499 F.3d 1056, 1061 (9th Cir. 2007). Simply put, the threshold for triggering equitable tolling is exceedingly high, " lest the exceptions swallow the rule." Porter, 620 F.3d at 959 (quoting Miranda, 292 F.3d at 1066).

Here, Petitioner argues that he is entitled to equitable tolling for three reasons: (1) his lack of legal knowledge, (2) his questionable mental health, and (3) legal information received belatedly due to a prison lockdown and placement in administrative segregation. (Opp. at 1.) However, none of these excuses constitutes an extraordinary circumstance that prevented Petitioner from filing a timely petition.

First, Petitioner's lack of legal knowledge does not justify equitable tolling. See, e.g., Baker v. Cal. Dep't of Corr., 484 F.App'x 130, 131 (9th Cir. 2012) (" Low literacy levels, lack of legal knowledge, and need for some assistance . . . are not extraordinary circumstances to warrant equitable tolling[.]"); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (" [A] petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.").

Second, Petitioner's vague assertion that his " mental health was in question" is insufficient. (Opp. at 1.) As a rule, a petitioner is entitled to equitable tolling for mental impairment only if he meets a two-part test:

(1) First, he must show that his mental impairment was an " extraordinary circumstance" beyond his control by demonstrating that the impairment was so severe that either
(a) he was unable rationally or factually to personally understand the need to timely file, or
(b) his mental state rendered him personally unable to prepare a habeas petition and effectuate its filing.
(2) Second, he must show diligence in pursuing his claims to the extent he could understand them, but also show that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance.

Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010). Here, despite having the opportunity do so, Petitioner proffers no evidence to support a finding that his mental condition prevented him from filing a timely petition. Preliminarily, Petitioner fails to identify, or provide any supporting documentation regarding, his alleged mental condition. See, e.g., Chisom v. Beard, 2014 WL 1030707, at *2 (C.D. Cal. Mar. 17, 2014) (no equitable tolling where " [w]ith respect to petitioner's alleged mental 'problem, ' petitioner provide[d] no specific allegations explaining what that 'problem' [was]"); McGee v. Marshall, 2010 WL 2985548, at *6 (E.D. Cal. July 27, 2010) (no equitable tolling where petitioner " attached no documentation in support of his mental health claims"). Additionally, Petitioner fails to demonstrate that his alleged mental illness was a " but-for cause of any delay." Bills, 628 F.3d at 1100; see also, e.g., Campostrini v. Martel, 2009 WL 1845095, at *7 (E.D. Cal. June 26, 2009) (no equitable tolling where petitioner failed to show that his mood swings, depression, and medication prevented him from proceeding with his habeas petitions); Taylor v. Knowles, 2009 WL 688615, at *6 (E.D. Cal. Mar. 13, 2009) (no equitable tolling where petitioner failed to show that his hallucinations and mood disorders " actually caused him not to be able to file despite his diligence"). Finally, Petitioner fails to show that he was diligent in preparing his Petition. See Bills, 628 F.3d at 1101 (" [T]he petitioner must diligently seek assistance and exploit whatever assistance is reasonably available.").

Third, Petitioner's belatedly-received legal information does not justify equitable tolling. For one thing, Petitioner neither identifies this information nor explains how its late receipt " actually prevented [him] from preparing or filing a timely petition" in federal court.[6] Shannon v. Newland, 410 F.3d 1083, 1090 (9th Cir. 2005). Moreover, " the difficulties attendant on prison life" do not generally constitute extraordinary circumstances that warrant the granting of equitable tolling. Corrigan v. Barbery, 371 F.Supp.2d 325, 330 (W.D.N.Y. 2005); see also Lindo v. Lefever, 193 F.Supp.2d 659, 663 (E.D.N.Y. 2002) (" [S]olitary confinement, lockdowns, restricted access to the law library[, ] and an inability to secure court documents do not qualify as extraordinary circumstances."). Significantly, the claims in the Petition closely mirror those raised in Petitioner's direct appeal and first two state habeas petitions. ( Compare Pet. at 3-4 with Lodg. No. 1 at 3-4, Lodg. No. 2 at 5-10, Lodg. No. 4 at 1, Lodg. No. 5 at 3-4, and Lodg. No. 6 at 1.) As the Ninth Circuit succinctly summarized, " Surely due diligence requires that [Petitioner] at least consult his own memory of [prior] proceedings." United States v. Battles, 362 F.3d 1195, 1198 (9th Cir. 2004).

See

IV.

CERTIFICATE OF APPEALABILITY AND EVIDENTIARY HEARING

Additionally, for the reasons above, the Court finds that Petitioner has not shown that " jurists of reason would find it debatable whether" (1) " the petition states a valid claim of the denial of a constitutional right" and (2) " the district court was correct in its procedural ruling." See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Thus, it is recommended that a certificate of appealability be denied.

Nor is Petitioner entitled to an evidentiary hearing. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (AEDPA " requires an examination of the state court-decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court.").

IV.

RECOMMENDATION

In accordance with the foregoing, IT IS RECOMMENDED that the Court issue an Order: (1) approving and accepting this Report and Recommendation; (2) directing that Judgment be entered dismissing this action with prejudice; (3) denying a certificate of appealability; and (4) denying an evidentiary hearing.


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