United States District Court, E.D. California
ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATION,
DENYING WITHOUT PREJUDICE RESPONDENT'S MOTION TO DISMISS,
AND REFERRING MATTER BACK TO MAGISTRATE JUDGE (ECF Nos. 13,
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE.
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
January 8, 2016, Respondent filed a motion to dismiss,
arguing that the petition was filed outside the one-year
limitation period. (ECF No. 13). Petitioner did not file any
opposition to the motion to dismiss, and the Magistrate Judge
issued findings and recommendation recommending dismissal of
the petition. (ECF No. 15). Petitioner filed objections to
the findings and recommendation, arguing that he is entitled
to equitable tolling. (ECF No. 16). Construing
Petitioner's objections as a motion for equitable
tolling, the Magistrate Judge vacated the findings and
recommendation and the parties filed briefs on the issue.
(ECF Nos. 17, 18, 25).
January 23, 2017, the Magistrate Judge found that further
development of the record was warranted and ordered the
parties to submit evidence in support of their equitable
tolling arguments. (ECF No. 26). Respondent timely submitted
evidence, but Petitioner did not. (ECF No. 27). On March 29,
2017, the Magistrate Judge issued findings and recommendation
recommending dismissal of the petition. (ECF No. 28). This
findings and recommendation was served on the parties and
contained notice that any objections were to be filed within
thirty (30) days of the date of service of that order.
April 10, 2017, the Court received two motions from
Petitioner. (ECF Nos. 29, 30). Both contained requests for
extensions of time so that Petitioner could obtain documents
supporting his equitable tolling claim. In light of the
procedural posture of the case, the Magistrate Judge
construed the motions as motions for extension of time to
object to the March 29, 2017 findings and recommendation.
(ECF No. 31).
17, 2017, the Court received a document entitled,
“Petitioner's Response to January 23, 2017, Court
Order to Submit Supporting Evidence in Equitable Tolling
Motion, ” (ECF No. 32), which the Court construes as
objections to the March 29, 2017 findings and recommendation.
See Castro v. United States, 540 U.S. 375, 381-82
(2003) (courts may recharacterize a pro se motion to
“create a better correspondence between the substance
of a pro se motion's claim and its underlying legal
basis”); Bernhardt v. Los Angeles County, 339
F.3d 920, 925 (9th Cir. 2003) (courts have a duty to construe
pro se pleadings and motions liberally). Respondent has filed
not any response to Petitioner's May 17, 2017 filing.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), this Court has conducted a de novo review of
the case. Having carefully reviewed the entire file,
including the new evidence and arguments contained in
Petitioner's objections,  the Court declines to adopt the
findings and recommendation.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) imposes a one-year period of limitation
on petitioners seeking to file a federal petition for writ of
habeas corpus. 28 U.S.C. § 2244(d)(1). In most cases,
the limitation period begins running on the date that the
petitioner's direct review became final, but here
Petitioner asserts that the limitation period began to run on
a later date pursuant to § 2244(d)(1)(B). Petitioner
contends that his placement in the Administrative Segregation
Unit constituted a state-created impediment that prevented
Petitioner from timely filing. (ECF No. 16 at 4-5; ECF No. 25
at 2, 6).
limitation period also is subject to equitable tolling if the
petitioner demonstrates “‘(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented timely filing.” Holland v. Florida,
560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). In order to be
entitled to equitable tolling, a petitioner must have
exercised “reasonable diligence, not maximum feasible
diligence.” Holland, 560 U.S. at 653
(citations and internal quotation marks omitted). “The
standard for reasonable diligence does not require an
overzealous or extreme pursuit of any and every avenue of
relief. It requires the effort that a reasonable person might
be expected to deliver under his or her particular
circumstances.” Doe v. Busby, 661 F.3d 1001,
1015 (9th Cir. 2011). The Ninth Circuit has held that
“diligence during the existence of an
extraordinary circumstance is the key consideration.”
Gibbs v. Legrand, 767 F.3d 879, 892 (9th Cir. 2014).
alleges that his legal documents, stationery, and personal
property were confiscated upon entering administrative
segregation, and that his legal materials were never
returned. Petitioner also alleges that the prison failed to
issue Petitioner legal forms, paper, envelopes, pens, and
copies even though he met the standards of an indigent
prisoner. Petitioner further alleges that he was
“denied complete access to the law library” from
December 29, 2014 to June 26, 2015. (ECF No. 25 at 6).
has submitted a copy of Petitioner's Administrative
Segregation Personal Property Request form, which shows that
that pursuant to Petitioner's request, Petitioner's
legal materials and personal property were returned to him on
January 18, 2015. (ECF No. 27-1 at 2). In his May 17, 2017
filing, Petitioner declares under penalty of perjury that his
legal materials were not issued with the hygiene items he
received on January 18, 2015. Petitioner declares that he
verbally informed the correctional officer that he did not
receive his legal materials. The correctional officer
responded, “I will go the property room right now and
get it but sign this property slip now so I can make you your
copy and bring it with your legal material.” (ECF No.
32 at 2). Petitioner signed the property slip as instructed,
but the correctional officer never returned with
Petitioner's legal materials. Petitioner declares that he
filed four administrative appeals regarding his legal
materials. However, prison officials did not respond to those
administrative appeals. (Id. at 3-5). Respondent has
filed not a response to Petitioner's May 17, 2017 filing.
Ninth Circuit has recognized that “[d]eprivation of
legal materials is the type of external impediment for which
[courts] have granted equitable tolling.”
Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th
Cir. 2009). Accordingly, the Court finds that Petitioner has
made allegations that equitable tolling may be warranted. The
Ninth Circuit has held that in such instances, further
factual development and an evidentiary hearing may be
required. See Orthel v. Yates, 795 F.3d 935, 940
(9th Cir. 2015); Roy v. Lampert, 465 F.3d 964, 969
(9th Cir. 2006) (“A habeas petitioner . . . should
receive an evidentiary hearing when he makes ‘a
good-faith allegation that would, if true, entitle him to
equitable tolling.'” (quoting Laws v.
Lamarque, 351 F.3d 919, 919 (9th Cir. 2003))).
procedural issues are resolved first, but courts have
recognized that “[p]rocedural bar issues are not
infrequently more complex than the merits issues . . . so it
may well make sense in some instances to proceed to the
merits if the result will be the same.” Franklin v.
Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (citing
Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). In
the instant ...