United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner without counsel seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. He brought this
action on September 8, 2015. ECF No. 1. On March 10, 2017,
after reviewing the petition (ECF No. 5), the court ordered
petitioner to show cause why the petition should not be
dismissed as untimely. ECF No. 8. Specifically, the court
noted that although the petition does not state the date of
petitioner's conviction, review of the California Supreme
Court's docketing system reflects the March 2000
dismissal of a petition for review. Id. at
did not comply with the show cause order within the thirty
day deadline, and the court accordingly dismissed the
petition on April 18, 2017. ECF No. 9.
has now filed a motion for reconsideration (ECF No. 12),
contending that he did timely submit a response but that it
was not processed in time by the clerk of court. Id.
at 1. The court notes that an undated document was submitted
by petitioner and docketed on April 20, 2017, two days after
the action was dismissed. Petitioner also attached a document
to his motion for reconsideration indicating that he was
unable to access the law library during the period from
February 20 to April 6, 2017. ECF No. 12 at 2. The court
notes that petitioner's motion for reconsideration,
whether grounded in Rule 59(e) or Rule 60(b) of the Federal
Rules of Civil Procedure, was filed within the twenty-eight
day time limit specified by Federal Appellate Rule 4 and is
therefore timely. See Classic Concepts, Inc. v. Linen
Source, Inc., 716 F.3d 1282, 1285 (9th Cir. 2013).
light of petitioner's submission of a document responsive
to the OSC, which appears to have “crossed in the
mail” with the court's order of dismissal, the
motion for reconsideration will be granted and the April 20
filing will be considered on the merits of the timeliness
question. For the reasons now explained, however,
petitioner's showing fails to provide a basis for
equitable tolling or otherwise establish the timeliness of
the federal petition.
has submitted a declaration from another inmate - Michael
McCracken - which states that petitioner was unable to
understand the procedures to file a timely appeal because he
has a below average I.Q. and suffers from dyslexia. ECF No.
11. The court notes that the declaration is signed by
petitioner rather than McCracken. Id. at 1. Attached
to the declaration is a document purporting to show
petitioner's aptitude test results from 1991.
Id. at 2. The document indicates that petitioner had
a “raven i.q.” score of 74. Id.
warrant equitable tolling on the basis of mental impairment,
a petitioner must show that: (1) his mental impairment was so
severe that he either was “unable rationally or
factually to personally understand the need to timely file,
” or that his mental state “rendered him unable
personally to prepare a habeas petition and effectuate its
filing”; and (2) he was diligent in pursuing
his claims, “but that the mental impairment made it
impossible to meet the filing deadline under the totality of
the circumstances, including reasonably available access to
assistance.” See Bills v. Clark, 628 F.3d
1092, 1099-1100 (9th Cir. 2010). Petitioner has not made the
requisite showing. He has failed to establish that either his
I.Q. score or his dyslexia (of which petitioner has provided
no medical evidence) rendered him incapable of understanding
the need for timely filing or incapable of preparing a
petition. Even if the court assumes that petitioner's
intellectual functioning during the relevant period (from the
finality of conviction to filing of the federal petition) was
consistent with the proffered I.Q. score from 1991, that
would not necessarily have rendered him unable to file.
petitioner has not shown that he was diligent in pursuing his
claims during the period between his California Supreme Court
filing in 2000,  and the filing of this case in 2015.
Petitioner was informed of the diligence requirement in the
Order to Show Cause, ECF No. 8 at 3, but has provided no
information about the efforts he was making during the
relevant period to pursue his rights, including by seeking
assistance. The court notes that petitioner was ultimately
able to file the instant petition without representation of
counsel, and has not indicated that this filing was
predicated on any recent change in his mental circumstances.
For these reasons, there is no factual basis for equitable
tolling and the petition will be dismissed as untimely.
court has considered whether, in an abundance of caution, it
should provide petitioner a further opportunity to develop
the record regarding equitable tolling. Because it plainly
appears from the petition and its attachments that petitioner
would not be entitled to relief even if the claim were not
time-barred, see Rule 4, Rules Governing Section
2254 Cases in the United States District Courts, such an
opportunity would be an exercise in futility.
states a single claim for relief: that his prior
“strike” finding was supported by insufficient
evidence. ECF No. 5 at 4. The one-sentence statement of
supporting facts, liberally construed, contends that the
prosecutor did not have its evidence of the prior conviction
“in hand or under subpoena” at the time the
People announced they were ready for trial. Id. This
fact, if true, implicates no federal constitutional right. At
most, it implicates matters of criminal law and procedure
that are within the scope of California law. Accordingly,
petitioner's allegations cannot support federal habeas
relief and do not state a cognizable claim. See Middleton
v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (federal
habeas relief is “unavailable for alleged error in the
interpretation or application of state law”); see
also Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir.
1989) (holding that the question whether particular prior
conviction qualifies for sentence enhancement under
California law is not cognizable on federal habeas corpus
court construes petitioner's claim in this court to
incorporate the theories for relief presented to the superior
court in 2015, see ECF No. 5 at 7-8 (Order denying
Motion for Modification of Sentence, dated June 24, 2015),
petitioner fares no better. The superior court summarized
petitioner's challenge to the prior strike finding as
On February 6, 2015, defendant filed a “Motion for
Modification of Sentence, ” to challenge the imposition
of his “third-strike” life sentence upon him in
Case No. 95F07960. He claims the prior must be entered before
committing the new offense, that only one prior results when
one is held to answer on two charges at a preliminary
hearing, that a court cannot rely on a prior conviction to
both augment sentence and provide an element of an offense,
no dual use of a prior for two enhancements, and a trial
court has discretion to strike a “strike prior.”
ECF No. 5 at 7.
issues involve California's statutory regime for
recidivist sentencing and its implementing procedures, and do
not state a federal claim for relief. See Cacoperdo v.
Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (holding
that a decision to impose consecutive sentences did not
warrant federal habeas relief because it was purely a matter
of state criminal procedure); Rhoades v. Henry, 611
F.3d 1133, 1142 (9th Cir. 2010) (rejecting petitioner's
arguments related to his sentencing under Idaho law and
noting that “violations of state law are not cognizable
on federal habeas ...