United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in this
petition for writ of habeas corpus under 28 U.S.C. §
2254. Respondent moves to dismiss the petition as untimely
and for failure to state a cognizable claim. ECF No. 11. As
discussed below, the petition is untimely and must be
was convicted of vehicular manslaughter with gross
negligence, willful flight causing death, driving under the
influence with injury, and driving with a blood alcohol
content more than .08 with injury. Documents Lodged ISO
Resp.'s Motion to Dismiss (hereinafter “Lod.
Docs.”), Lod. Doc. 1. On July 31, 2006, he was
sentenced to 30 years in prison. Id. Petitioner did
not appeal the conviction or sentence. He did file three
state petitions for writ of habeas corpus, beginning in 2015.
Lod. Docs. 2-9.
The Limitations Period
the Anti-terrorism and Effective Death Penalty Act
(“AEDPA”), a one-year limitations period for
seeking federal habeas relief begins to run from the latest
of: (1) the date the judgment became final on direct review
or the expiration of the time for seeking such review (or
April 25, 1996, if the judgment became final prior to
AEDPA's enactment), (2) the date on which a state-created
impediment to filing is removed, (3) the date the United
States Supreme Court makes a new rule retroactively
applicable to cases on collateral review, or (4) the date on
which the factual predicate of a claim could have been
discovered through the exercise of due diligence. 28 U.S.C.
§ 2244(d)(1)(A)-(D); Malcom v. Payne, 281 F.3d
951, 955 (9th Cir. 2002).
statute tolls the limitations period “from the time a
final decision is issued on direct state appeal [to] the time
the first state collateral challenge is filed . . ..”
Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).
However, if a petitioner properly files a state
post-conviction application prior to the expiration of the
limitations period, the period is tolled and remains tolled
for the entire time that application is
“pending.” 28 U.S.C. § 2244(d)(2).
“[A]n application is ‘properly filed' when
its delivery and acceptance are in compliance with the
applicable laws and rules governing filings.” Artuz
v. Bennett, 531 U.S. 4, 8 (2000). In California, a
properly filed post-conviction application is
“pending” during the intervals between a lower
court decision and the filing of a new petition in a higher
court if the second petition was filed within a
“reasonable time” after the denial of the first.
Carey v. Saffold, 536 U.S. 214, 221 (2002);
Stancle v. Clay, 692 F.3d 948, 956 (9th Cir. 2012);
see also Velasquez v. Kirkland, 639 F.3d 964, 968
(9th Cir. 2011) (finding that delays of ninety-one days and
eighty-one days are “far longer than the Supreme
Court's thirty-to-sixty-day benchmark for
California's ‘reasonable time' requirement,
” and are, without adequate explanation, unreasonable
under California law). ///// A federal habeas application
does not provide a basis for statutory tolling, Duncan v.
Walker, 533 U.S. 167, 181-82 (2001), nor does a state
petition filed after the federal limitations period has
expired, Ferguson v. Palmateer, 321 F.3d 820, 823
(9th Cir. 2003).
petitioner may be entitled to statutory tolling for the time
that additional rounds of state habeas petitions are pending
(provided they were filed prior to the expiration of the
limitations period), although the time between rounds is not
tolled. Cross v. Sisto, 676 F.3d 1172, 1178-79 (9th
Cir. 2012); Porter v. Ollison, 620 F.3d 952, 958
(9th Cir. 2010). For tolling to be applied based on a
subsequent round, that subsequent set of petitions cannot be
untimely or improperly successive. Porter, 620 F.3d
limitations period may also be equitably tolled where a
habeas petitioner establishes two elements: (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
(2010). Petitioner has the burden of showing facts entitling
him to equitable tolling. Smith v. Duncan, 297 F.3d
809, 814 (9th Cir. 2002); Miranda v. Castro, 292
F.3d 1063, 1065 (9th Cir. 2002). The threshold necessary to
trigger equitable tolling is very high, “lest the
exceptions swallow the rule.” Waldron-Ramsey v.
Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Equitable
tolling may be applied only where a petitioner shows that
some external force caused the untimeliness. Id.
The Equitable Exception for Innocence
addition, the statute of limitations is subject to an actual
innocence exception. A petitioner may have her untimely filed
case heard on the merits if she can persuade the district
court that it is more likely than not that no reasonable
juror would have convicted her. McQuiggin v.
Perkins, __ U.S., 133 S.Ct. 1924, 1928, 1933 (2013);
Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011)
(en banc). “Unexplained delay in presenting new
evidence bears on the determination whether the petitioner
has made the requisite showing.” McQuiggin,
133 S.Ct. at 1935. For example, the “court may consider
how the timing of the submission and the likely credibility
of a petitioner's affiants bear on the probable
reliability” of his evidence of innocence. Id.