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Lemus v. Sherman

United States District Court, C.D. California

November 21, 2014

CESAR LEMUS, Petitioner,
v.
STU SHERMAN, Warden, Respondent

Cesar Lemus, Petitioner, Pro se, Corcoran, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ROBERT N. BLOCK, UNITED STATES MAGISTRATE JUDGE.

This Report and Recommendation is submitted to the Honorable John A. Kronstadt, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

PROCEEDINGS

On or about September 21, 2014, [1] petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody herein. The Petition purported to be directed to the 22-year sentence petitioner received on February 9, 2010, following his nolo contendere plea to an attempted murder charge. As his sole ground for relief, petitioner was claiming that he should receive a reduction of sentence due to mitigating factors.

The Court's review of the Petition revealed that it suffered from several pleading deficiencies. Accordingly, on October 10, 2014, the Court issued an Order dismissing the Petition with leave to amend.

On November 10, 2014, petitioner filed a First Amended Petition (" FAP") herein, along with an accompanying response to the October 10, 2014 dismissal order. Petitioner still is claiming, as his sole ground for relief, that he should receive a reduction of sentence due to mitigating factors.

Notwithstanding the federal authorities cited in petitioner's response to the dismissal order, the Court is not convinced that petitioner has even stated a claim cognizable on federal habeas review. In any event, for the reasons discussed below, the Court now recommends that this action be summarily dismissed for untimeliness.[2]

DISCUSSION

Since this action was filed after the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (the " AEDPA") on April 24, 1996, it is subject to the AEDPA's one-year limitation period, as set forth at 28 U.S.C. § 2244(d). See Calderon v. United States District Court for the Central District of California (Beeler), 128 F.3d 1283, 1287 n.3 (9th Cir. 1997), cert. denied, 522 U.S. 1099, 118 S.Ct. 899, 139 L.Ed.2d 884 and 523 U.S. 1061, 118 S.Ct. 1389, 140 L.Ed.2d 648 (1998).[3] 28 U.S.C. § 2244(d) provides:

" (1) 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. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review;
(B) 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;
(C) 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
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) 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 any period of limitation under this subsection."

Here, petitioner acknowledges that he did not appeal following his sentencing on February 9, 2010. Under the relevant California Rules of Court, his judgment of conviction became final 60 days later on April 10, 2010. See Cal. Rules of Court, Rule 8.308(a) [formerly Rule 30.1 (a)]. Thus, if measured from " the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review, " petitioner's last day to file his federal habeas petition was April 10, 2011. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

In the October 10, 2014 dismissal order, the Court noted that, given the nature of petitioner's sentencing claim, it did not appear to the Court that any of the other trigger dates for commencement of the limitation period applied here. See, e.g., Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (statute of limitations begins to run when a prisoner " knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance"). Although, in his response to the dismissal order accompanying the FAP, petitioner has cited California authority for the proposition that a reviewing court may correct a sentence that is not authorized by law whenever the error comes to the attention of the court, that state law proposition has no bearing on whether any of the other trigger dates under § 2244(d)(1) for commencement of the one-year federal limitation period applies here.

The Court therefore finds that, unless a basis for tolling the statute existed, petitioner's last day to file his federal habeas petition was April 10, 2011.

The burden of demonstrating that the AEDPA's one-year limitation period was sufficiently tolled, whether statutorily or equitably, rests with the petitioner. See, e.g.. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010); Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005), modified on other grounds, 447 F.3d 1165 (2006), cert. denied, 549 U.S. 1134, 127 S.Ct. 979, 166 L.Ed.2d 742 (2007); Smith, 297 F.3d at 814; Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir.), cert. denied, 537 U.S. 1003, 123 S.Ct. 496, 154 L.Ed.2d 399 (2002).

Here, the Court finds that petitioner has not met his burden of establishing entitlement to any statutory tolling of the limitation period under 28 U.S.C. § 2244(d)(2) because, by the time petitioner constructively filed the first of his state post-conviction petitions on March 21, 2014, the limitation period already had run nearly three years earlier and could not be reinitiated. See, e.g., Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.) (holding that § 2244(d) " does not permit the reinitiation of the limitations period that has ended before the state petition was filed, " even if the state petition was timely filed), cert. denied, 540 U.S. 924, 124 S.Ct. 328, 157 L.Ed.2d 224 (2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Wixom v. Washington, 264 F.3d 894, 898-99 (9th Cir. 2001), cert. denied, 534 U.S. 1143, 122 S.Ct. 1097, 151 L.Ed.2d 994 (2002).

">In Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010), the Supreme Court held that the AEDPA's one-year limitation period also is subject to equitable tolling in appropriate cases. However, in order to be entitled to equitable tolling, the petitioner must show both that (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented his timely filing. See id. (quoting Pace, 544 U.S. at 418). The Ninth Circuit has held that the Pace standard is consistent with the Ninth Circuit's " sparing application of the doctrine of equitable tolling." See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 558 U.S. 897, 130 S.Ct. 244, 175 L.Ed.2d 167 (2009).

Thus, in order to be entitled to equitable tolling of the limitation period, " [t]he petitioner must show that The extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time." ' Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (quoting Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009)). " [T]he threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." 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). Consequently, as the Ninth Circuit has recognized, equitable tolling will be justified in few cases. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (as amended); see also Waldron-Ramsey, 556 F.3d at 1011 (" To apply the doctrine in 'extraordinary circumstances' necessarily suggests the doctrine's rarity, and the requirement that extraordinary circumstances 'stood in his way' suggests that an external force must cause the untimeliness, rather than, as we have said, merely 'oversight, miscalculation or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling.'").

Here, despite being apprised in the October 10, 2014 dismissal order of the two requisite showings for equitable tolling, petitioner has not purported to make either of those showings in the FAP or in his accompanying response to the dismissal order.

The Court also notes that, even if petitioner were claiming that he was unaware of the limitation period, the law is well established that ignorance of the law does not constitute an " extraordinary circumstance" entitling a habeas petitioner to any equitable tolling of the limitation period. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding that " a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling" of the AEDPA limitations period); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) (ignorance of the limitation period did not warrant equitable tolling); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.) (petitioner's alleged lack of access to law library materials and resulting unawareness of the limitation period until it was too late did not warrant equitable tolling), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998); Gazzeny v. Yates, 2009 WL 294199, at *6 (C.D. Cal. Feb. 4, 2009) (noting that " [a] prisoner's illiteracy or ignorance of the law do not constitute extraordinary circumstances" for purposes of tolling of the AEDPA statute of limitations); Singletary v. Newland, 2001 WL 1220738, at *2 (N.D. Cal. Sept. 28, 2001) (" A misunderstanding of the complexities of federal habeas relief is not considered an extraordinary circumstance or external factor for purposes of avoiding an otherwise valid dismissal, as complete illiteracy does not even provide a sufficient basis for equitable tolling."); Ekenberg v. Lewis, 1999 WL 13720, at *2 (N.D. Cal. Jan. 12, 1999) (" Ignorance of the law and lack of legal assistance do not constitute such extraordinary circumstances."); Bolds v. Newland, 1997 WL 732529, at *2 (N.D. Cal. Nov. 12, 1997) (" Ignorance of the law and lack of legal assistance do not constitute such extraordinary circumstances."); see also Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) (holding that neither " lack of knowledge of applicable filing deadlines, " nor " unfamiliarity with the legal process, " nor " lack of representation during the applicable filing period, " nor " illiteracy, " provides a basis for equitable tolling).

The Court therefore finds that petitioner also has not met his burden of demonstrating entitlement to any equitable tolling of the limitation period.

CONCLUSION AND RECOMMENDATION

In conclusion, the Court finds that, when the original Petition herein was constructively filed on or about September 21, 2014, it was untimely by nearly 3-1/2 years.

IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Report and Recommendation; and (2) directing that Judgment be entered summarily dismissing this action with prejudice.


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