United States District Court, C.D. California
January 6, 2015
JORDAN E. JACKSON, Petitioner,
KIM HOLLAND, et al., Warden, Respondents
Jordan E. Jackson, Petitioner, Pro se, Tehachapi, CA.
HONORABLE STEPHEN V. WILSON, UNITED STATES DISTRICT JUDGE. KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE.
MEMORANDUM AND ORDER SUMMARILY DISMISSING ACTION
HONORABLE STEPHEN V. WILSON, UNITED STATES DISTRICT JUDGE.
On October 21, 2014, Jordan E. Jackson (" Petitioner"), a California state prisoner proceeding pro se, constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody (the " Petition") pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the Petition is dismissed because the Court finds it untimely.
In the instant Petition,  Petitioner asserts several claims challenging his sentence for a July 2008 conviction in Riverside County Superior Court. Pet. at 1-2. On April 10, 2009, the California Court of Appeal affirmed Petitioner's convictions in a reasoned decision on direct appeal in case no. E046629. Id. at 2. Petitioner does not appear to have filed a petition for discretionary review over the appeal before the California Supreme Court.
Petitioner appears to have filed two state habeas petitions after his direct appeal: (1) a petition in the California Court of Appeal on June 20, 2014 (case no. E061377), which was denied on July 9, 2014; and (2) a petition in the California Supreme Court on July 18, 2014 (case no. S220015), which was denied on September 24, 2014. Pet. at 3-4.
On October 21, 2014, Petitioner constructively filed the instant Petition. (ECF Docket No. (" dkt.") 1). On December 5, 2014, the Court issued an Order for Petitioner to Show Cause why the Petition was not untimely, notifying Petitioner the Petition was facially untimely and discussing various bases for tolling. (Dkt. 8). On December 17, 2014, Petitioner filed a " Motion to Show Cause, " which the Court construes as a Response to the OSC. (Dkt. 9). The matter thus stands submitted and ready for decision.
The instant Petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"). Therefore, the Court must apply the requirements for habeas relief set forth in AEDPA when reviewing the Petition. Soto v. Ryan, 760 F.3d 947 (9th Cir. 2014) (citing Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). AEDPA contains a one-year statute of limitations for a petition for writ of habeas corpus filed in federal court by a person in custody pursuant to a judgment of a state court. 28 U.S.C. § 2244(d)(1) (" Section 2244(d)(1)").
A. Petitioner Did Not File His Petition Within AEDPA's One-Year Limitations Period
AEDPA's one-year limitations period commences on the date a petitioner's conviction becomes " final." 28 U.S.C. § 2244(d)(1)(A). Because Petitioner does not appear to have filed a petition for discretionary review of his appeal by the California Supreme Court,  Petitioner's conviction became final on May 20, 2009--forty days after the California Court of Appeal's decision disposing of Petitioner's direct appeal. See Brown v. Sisto, 303 F.App'x 458, 459 (9th Cir. 2008). Thus, under 28 U.S.C. § 2244(d)(1), the limitations period began to run the next day on May 21, 2009 and expired one year later, on May 20, 2010. The instant Petition was not constructively filed until October 21, 2014. Therefore, the instant Petition is untimely by over four years under Section 2244(d)(1), absent tolling.
B. Statutory Tolling Does Not Render The Petition Timely
AEDPA sets forth a statutory tolling provision which suspends Section 2244(d)(1)'s limitations period for the time during which a " properly filed" application for post-conviction or other collateral review is " pending" in state court. 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 544 U.S. 408, 410, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). However, the Ninth Circuit has held " section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed." Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
Here, Petitioner constructively filed two state habeas petitions in June and July 2014. Pet. at 3-4. Even assuming these petitions qualify as " properly filed application[s] for state post-conviction collateral review, " they do not statutorily toll the limitations period (pursuant to 28 U.S.C. § 2244(d)(2)) because Petitioner filed all of these petitions after the limitations period had already lapsed on May 20, 2010. See Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (state habeas petition did not toll the period of limitations " because the limitations period had already run"). Thus, statutory tolling does not render the Petition timely.
C. Petitioner Has Not Satisfied His Burden To Demonstrate He Is Entitled To Equitable Tolling
In addition to the statutory tolling provided for by Section 2244(d)(2), the " AEDPA limitations period may be tolled" when it is " equitably required." Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011) (citations omitted). The " threshold necessary to trigger equitable tolling [under AEDPA] is very high." Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citation and internal quotation marks omitted). The " extraordinary circumstances" requirement means equitable tolling will not be available in most cases. Calderon v. U.S. Dist. Ct. (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled on other grounds by Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530 (9th Cir. 1998) ( en banc ) (internal quotation marks omitted). " The Supreme Court and the policies behind AEDPA require that equitable tolling be used only to protect diligent petitioners facing extraordinary circumstances that prevent them from timely filing federal habeas petitions." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1014 (9th Cir. 2009) ( citing Pace, 544 U.S. at 417).
A petitioner " bears a heavy burden to show that [he] is entitled to equitable tolling, lest the exceptions swallow the rule." Rudin v. Myles, 766 F.3d 1161, 2014 WL 4435950, at *8 (9th Cir. 2014) (internal citation and quotation marks omitted). " The petitioner must establish two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (internal citation and quotation marks omitted). Conclusory " assertions rarely suffice to meet the burden of demonstrating entitlement to equitable tolling." Williams v. Dexter, 649 F.Supp.2d 1055, 1062 (C.D. Cal. 2009) (internal citation omitted).
Here, in his response to the Court's OSC, Petitioner appears to claim he delayed filing the Petition because he was unaware he could challenge his sentence at any time after sentencing. Resp. at 2. However, such allegations are insufficient to warrant equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (" [A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling."); see also Perez v. Adams, 405 F.App'x 262, 263 (9th Cir. 2010); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 2009). Accordingly, the Court holds the Petition is untimely under 28 U.S.C. section 2244(d)(1) by over five years and must be denied.
The Court finds the Petition must be dismissed because it is untimely for the reasons stated above. Further, by way of the OSC, the Court finds Petitioner has already received notice and an opportunity to show cause why the Petition should not be dismissed as time-barred.
ACCORDINGLY, IT IS HEREBY ORDERED that Judgment be entered summarily dismissing this action with prejudice.
In accordance with the Memorandum and Order Summarily Dismissing Petition for Writ of Habeas Corpus, IT IS HEREBY ADJUDGED that this action is summarily dismissed, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.