United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
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. On May 24, 2017, he
filed a habeas petition (ECF No. 2) which this court
identified as untimely. ECF No. 8. Rather than recommend
immediate dismissal of the petition, the court invited
petitioner to show cause as to why his petition was not
time-barred under the one year statute of limitations imposed
by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Id. Petitioner filed an
initial response on June 30, 2017. ECF No. 9. Then, on July
10, 2017, he filed an amended response (ECF No. 10) and a
motion to strike (ECF No. 11) his initial response. For the
reasons stated hereafter, the court will grant
petitioner's motion to strike and recommend that his
petition be dismissed as untimely.
Motion to Strike
argues that his original pleading should be stricken because
it was written without the benefit of his legal papers and
failed to consider the question of equitable tolling. ECF No.
11 at 2. The court will grant this motion, strike the
original response, and look exclusively to the amended
response in weighing whether to dismiss this petition.
court must dismiss a habeas petition or portion thereof if
the prisoner raises claims that are legally “frivolous
or malicious” or fail to state a basis on which habeas
relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). The
court must dismiss a habeas petition “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief[.]” Rule 4
Governing Section 2254 Cases.
conviction underlying this petition occurred on August 1,
2006 in the Sacramento County Superior Court. ECF No. 2 at 9.
Petitioner was convicted on that date of second degree murder
for the killing of his prison cellmate. Id. He was
also convicted of violating Cal. Penal Code §4500
because he was already serving a life sentence at the time he
killed his cellmate. Id.
appealed his conviction, arguing that: (1) the jury
instructions given failed to inform jurors they could
consider his voluntary intoxication in deciding whether he
acted with express malice aforethought; (2) the foregoing
instructional error demanded reversal of his conviction for
malicious aggravated assault by a life prisoner because an
element of that crime is “malice aforethought”;
and (3) the trial court erred by failing to instruct the jury
on assault by means of force likely to produce great bodily
injury - a lesser included offense. People v.
Jensen, 2008 Cal.App. Unpub. LEXIS 5297, 2008 WL
2569257, at *1-3 (Cal.App. 3 Dist., 2008)
(unpublished). The court of appeal denied these claims on
June 30, 2008 (id.) and petitioner did not petition the
California Supreme Court for review.
federal habeas petition must be filed within one year of (1)
the date the state court judgment became final, either by
conclusion of direct review or the expiration of time to seek
such review; (2) the date on which an impediment to filing
created by state action is removed (if the applicant was
prevented from filing by that action); (3) the date on which
a constitutional right is newly recognized by the Supreme
Court and made retroactive on collateral review; or (4) the
date on which the factual predicate of the claim could have
been recognized through the exercise of due diligence.
See 28 U.S.C. § 2244(d). Here, petitioner's
conviction became final when his time for seeking review with
the state's highest court expired. See Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012). In this case, that
date was August 11, 2008 - forty days after the court of
appeal's decision was filed. See Cal. R. Ct.
8.366(b)(1) (“[A] Court of Appeal decision . . . is
final in that court 30 days after filing.”); Cal. R.
Ct. 8.500(e)(1) (“A petition for review must be . . .
filed within 10 days after the Court of Appeal decision is
final in that court.”). The one year statute of
limitations began running the following day on August 12,
2008. See Patterson v. Stewart, 251 F.3d 1243,
1245-46 (9th Cir. 2001) (under Federal Rule of Civil
Procedure 6(a), the ADEPA statute of limitations excludes
“the day of the act, event, or default from which the
designated period of time begins to run”). Absent
tolling, petitioner had until August 12, 2009 to file his
federal habeas petition.
petition was not filed until May 24, 2017. In his amended
response, petitioner argues that he is entitled to equitable
tolling from December 2009 until May 2015 because the
inadequacy of California's habeas procedures violates his
federal due process rights. ECF No. 10 at 16-19.
Specifically, petitioner takes issue with California's
“lack of pre-filing fact development procedures”
and argues that the absence of these procedures prevents a
pro se litigant from articulating factually sufficient habeas
claims. Id. at 17. Recognizing this inadequacy,
petitioner claims that he endeavored for years - ultimately
without success - to find counsel who would represent him in
his collateral review proceedings. Id. at 19-20. He
characterizes California's habeas system as a
“Catch-22” which requires pro se litigants to
undertake one of two bad options - raise factually
insufficient claims that are quickly dismissed or engage in a
difficult, often fruitless search for counsel willing to
represent them, thereby risking the timeliness of their
claims. Id. Petitioner argues that the
aforementioned inadequacies effectively amount to a
suspension of the writ of habeas corpus for pro se litigants
in California courts. Id. at 20.
tolling under AEDPA is available if a petitioner “shows
(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). The Ninth Circuit has emphasized
that “the threshold necessary to trigger equitable
tolling [under AEDPA] is very high, lest the exceptions
swallow the rule.” Bills v. Clark, 628 F.3d
1092, 1097 (9th Cir. 2010) (quoting Miranda v.
Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). Petitioner
has not met that threshold here. “[A] pro se
petitioner's lack of legal sophistication is not, by
itself, an extraordinary circumstance warranting equitable
tolling.” Rasberry v. Garcia, 448 F.3d 1150,
1154 (9th Cir. 2006). And because there is no right to legal
assistance in seeking post-conviction relief, the lack
thereof cannot form the basis for equitable tolling. See
Lawrence v. Florida, 549 U.S. 327, 336-337 (2007)
(“Attorney miscalculation is simply not sufficient to
warrant equitable tolling, particularly in the postconviction
context where prisoners have no constitutional right to
counsel.) (emphasis added). The Supreme Court has held
Postconviction relief is even further removed from the
criminal trial than is discretionary direct review. It is not
part of the criminal proceeding itself, and it is in fact
considered to be civil in nature. It is a collateral attack
that normally occurs only after the defendant has failed to
secure relief through direct review of ...