Blocker v. Soto

          ORDER

          KENDALL J. NEWMAN JUDGE

         Petitioner is a state prisoner, proceeding pro se, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         On May 10, 2016, the magistrate judge filed findings and recommendations in which the undersigned recommended that respondent's motion to dismiss be granted because the federal statute of limitations period expired on February 6, 2014, and petitioner did not file the instant petition until June 28, 2015. (ECF No. 22.) On May 27, 2016, petitioner filed objections to the findings and recommendations. In addition to raising legal arguments concerning procedural default, petitioner claims, for the first time, that he suffers from a serious mental illness that warrants equitable tolling, and that the failure of prison officials to provide mentally ill inmates with adequate legal assistance is tantamount to extraordinary circumstances that also warrants equitable tolling. Respondent did not file a reply.

         A. Equitable Tolling

         The relevant time frame for the purpose of equitable tolling is from February 5, 2013, the date petitioner's conviction became final until June 28, 2015, the date he signed his federal habeas petition, or a little over two years.

         Equitable tolling is available to toll the one-year statute of limitations available to 28 U.S.C. § 2254 habeas corpus cases. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). A litigant seeking equitable tolling must establish: (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 (2005). The Ninth Circuit has explained:

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.

Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.) (internal citation omitted), cert. denied, 130 S.Ct. 244 (2009); see also Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003) (petitioner must show that the external force caused the untimeliness). It is petitioner's burden to demonstrate that he is entitled to equitable tolling. Espinoza-Matthews v. People of the State of California, 432 F.3d 1021, 1026 (9th Cir. 2005).

         B. Mental Illness

         The Ninth Circuit has articulated a specific, two-part test for an equitable tolling claim based on a petitioner's mental impairment:

(1) First, a petitioner must show his mental impairment was an "extraordinary circumstance" beyond his control by demonstrating the impairment was so severe that either

(a) petitioner was unable to rationally or factually to personally understand the need to timely file, or

(b) petitioner's mental state rendered him unable personally to prepare a habeas petition and effectuate its filing.

(2) Second, the petitioner must show diligence in pursuing the claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the ...