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Garcia v. Kernan

United States District Court, S.D. California

February 20, 2018

SCOTT KERNAN, Secretary Respondent.


          Peter C. Lewis, United States Magistrate Judge.


         Petitioner Jose Manuel Garcia (“Petitioner”), before the Court pro se, filed a petition for writ of habeas corpus on April 14, 2016. (Doc. 1.) Petitioner presents ten arguments in support of his petition: (1) Petitioner's convictions are based on insufficient evidence; (2) the California Court of Appeal based its decision on Petitioner's jury bias argument on an unreasonable determination of the facts; (3) six jurors were particularly biased against Petitioner; (4) the trial court erred in not ordering a mistrial sua sponte following an external incident involving potential jury tampering; (5) Petitioner received ineffective assistance of counsel from his trial counsel; (6) Petitioner also received ineffective assistance of counsel from his appellate counsel; (7) Petitioner's sentencing fine is unconstitutional[1]; (8) Petitioner's sentence is cruel and unusual, thereby violating his Eighth Amendment rights; (9) cumulative error warrants Petitioner's trial unfair; and (10) Petitioner was entrapped by Special Service Unit agent Steven Epperson. (Doc. 1 at 15-19.) Petitioner also requests an evidentiary hearing. (Id.)

         The Honorable Marilyn L. Huff referred this matter to the undersigned Judge for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 72.1(c)(1)(d). After a thorough review of the petition, answer, exhibits, state court records, and state court decisions, the Court recommends DENYING relief.


         The Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Summer v. Mata, 449 U.S. 539, 550 (1981) (holding in part that findings of historical fact, including inferences properly drawn from those facts, are entitled to statutory presumption of correctness). Petitioner has not claimed these facts are inaccurate, and so this Court takes the following from the California Court of Appeal:

On July 5, 2010, the victim in this case - Victoriano Ortiz, an inmate at [R.J.] Donovan - was walking in a prison yard with two allies, Geronimo Polina (“Blue”) and Manuel Gonzalez (“Stomper”). Blue suddenly turned on Ortiz and attacked him. Numerous other inmates quickly joined the assault on Ortiz, while other inmates attacked Stomper. The prosecution's theory was that the attack was the outcome of a power struggle between two rival factions of the Mexican Mafia then competing for control of Donovan, one of which was led by Ortiz and his “mesa, ” and the other led by a mesa composed of [Petitioner] (“Crazy Joe”), Morones, and two others. The Mexican Mafia seeks to control prisons using mesas as a command system, which is in effect a governing council. Ordinarily, the chief of the mesa is a “shot-caller” or “key-holder, ” and he has two or three “helpers” to help run various aspects or areas of the prison. The shot-caller and his helpers comprise the mesa. He derives his authority to run the prison from a “member” of the Mexican Mafia.
A. The Principal Participants
Morones was an associate in the Mexican Mafia serving a life sentence at Donovan. His eventual ally, [Petitioner], is also an active Mexican Mafia associate. Ortiz testified at trial about the structure of the Mexican Mafia. At the bottom of the organization pyramid are “southsiders, ” all members of Hispanic street gangs in southern California. These gang members must remit “taxes” (a portion of the proceeds of their illegal activity) to the Mexican Mafia. The next higher level consists of “surenos” or “soldiers, ” gang members who have garnered authority and more respect than southsiders by working for the Mexican Mafia, collecting taxes or enforcing orders through violent attacks. Above the surenos are “associates, ” who have worked their way up and are close to “members” (also referred to as “carnals”) of the Mexican Mafia. At the top of the pyramid are the carnals, who can order someone killed or assaulted (also called “giving the green light”) if the target is not respecting the authority of the Mexican Mafia. Such an order must be followed by all persons within the structure. Orders to attack someone, when issued by the mesa operating under a carnal's authority to run a prison, must be treated with the same obedience.
Ortiz was an associate in the Mexican Mafia and was incarcerated at Donovan to serve time for an assault he committed on its behalf. Ortiz believed his authority to run Donovan derived from his association with and permission from Richard Buchanon.
B. The Power Struggle for Control of Donovan and the Attack on Ortiz
Ortiz arrived at Donovan in March 2010 and almost immediately sent out word through “kites” and word of mouth that he was in charge of Donovan and whoever was in charge needed to step down or risk being assaulted. “Kites” are small handwritten notes by which messages are surreptitiously passed to other inmates within the prison (either between cells within a cell block or even between cell blocks) or to persons outside the prison. Ortiz also formed his mesa, which included Stomper (Ortiz's right-hand man), and inmate named “Pino, ” and Morones. At one point, Morones asked Ortiz for paperwork containing Ortiz's authority, but Buchanon had verbally authorized Ortiz to run Donovan.
Another group apparently disagreed with Ortiz's attempt to exert control, and Ortiz believed this group was trying to challenge his authority. This group included Morones, who had been in a dispute with Stomper, and Pablo Franco (“Casper”). That group began sending kites asserting its authority to run Donovan, which those in the group believed was derived from another carnal, and included messages to Ortiz that Ortiz “had something coming.”
When Ortiz noticed that southsiders were beginning to follow Morones's group, he tried to reassert his authority because there can only be one mesa running a prison. Ortiz's efforts to regain control including writing a kite to Morones asking to resolve the power struggle (an offer that did not bear fruit) and challenging Casper to a fight, which Casper declined. Ortiz interpreted Casper's response and acquiescing to Ortiz's authority, and he sent a kite to Casper indicating they both were now working under Buchanon's authority. Ortiz formed a new mesa, including Stomper, Blue and Isaac Balesteros (“Lazy”). For the next month, everything appeared calm with Ortiz in control.
However, in late June or early July, problems over control reemerged after Rude Espudo (“Crazy Boy”), a carnal, was temporarily incarcerated at Donovan. Espudo gave authority over Donovan to Morones, [Petitioner] (Morones's cellmate), and two other inmates (Casper and an inmate with the moniker “Oso”). Almost immediately, Garcia began yelling on the tier of their cell block that he had “authority” and threatened that Ortiz and Stomper had “something coming”, which Ortiz understood to mean he was targeted for attack. Ortiz also saw kites written by [Petitioner] and Morones ordering Ortiz be “whacked” with “no exceptions.”
Authorities had placed [Petitioner] in a cell that was surreptitiously wired, and, during this period, numerous recordings were made of conversations between Morones and Garcia, as well as of conversations they had with other inmates. Some of the recordings from July 2, 2010 (three days before the attack on Ortiz an Stomper) showed that Morones had already begun writing a kite to Lazy when [Petitioner] began contributing to the kite. [Petitioner] told Morones to ensure that the kite declare Espudo's direct orders had established the new mesa, and the new mesa was ordering both Lazy and Blue (members of Ortiz's inner circle) to whack Ortiz and Stomper “on this next yard with no exceptions.” The next day, July 3, [Petitioner] and Morones discussed whether Ortiz was going to come out to the yard and that he had group yard, and [Petitioner] said, “[T]hat's a good thing, that way we can blast the fuck out of him.”
When Ortiz went to walk in the prison yard on July 5, 2010, he knew he was risking his safety because there was a chance he would be assaulted. However, he believed he still had authorization to run Donovan and could not show fear, so he nevertheless went into the yard. As Ortiz was walking with two of his allies (Blue and Stomper), Blue suddenly turned on Ortiz and began punching and cutting at him. Other inmates joined in the attack on Ortiz while yet another group of inmates attacked Stomper. Although correctional officers responded by ordering the inmates to get down, and thereafter by firing some shots when the inmates ignored the command, the attackers did not immediately cease but instead continued stabbing Ortiz and banging his head against a wall. Ortiz suffered head and other injuries from the attack.

(Lodgment 19, 4-8.)

         Petitioner was charged and found guilty by a jury of four criminal acts: conspiracy to commit murder, California Penal Code §§ 182(a)(1), 187(a), attempted murder through a conspiracy or aiding and abetting theory, California Penal Code §§187(a), 664, solicitation of murder, California Penal Code § 653f(b), and assault with a deadly weapon on a prisoner, California Penal Code § 4501. (Lodgment 1, 75; Lodgment 12, 1667.) Gang allegations were also found true on all counts, California Penal Code § 186.22(b)(1). (Id.) on July 20, 2012, after denying a motion for new trial, the trial court sentenced Petitioner to an aggregate prison term of 25 years to life plus 19 years determinate. The trial court later entered judgment on July 23, 2012.

         Petitioner filed his direct appeal in the California Court of Appeal on June 11, 2013, challenging the conviction on six grounds. (Lodgment 16 at i-iii.) This appeal alleged reversal of Petitioner's conviction was required for the following reasons: (1) the trial court erred in answering Jury Question No. 3 regarding the attempted murder jury instruction; (2) trial counsel was ineffective in allowing the trial court to answer Jury Question No. 3 in such an erroneous way; (3) the trial court erred in failing to instruct sua sponte on the lesser included offense of conspiracy to commit an assault with a deadly weapon; (4) the trial court erred in imposing Petitioner's sentence on conspiracy to commit murder; (5) the trial court erred in imposing Petitioner's sentence on counts three and four; and (6) the trial court erred in failing to stay Petitioner's sentence on attempted murder. (Id.)

         The government agreed with Petitioner's arguments regarding his sentence, and submitted to claims four through six. (Lodgement 17 at 27-32.) The Court of Appeal took notice of this agreement between Petitioner and the government, and accordingly ordered Petitioner's sentence be modified. (Lodgment 19 at 31-33.) While the Court of Appeal granted Petitioner's appeal on these three grounds, on February 19, 2014, the Court of Appeal rejected Petitioner's challenges to the validity of his conviction and affirmed the judgment with the modified sentence. (Id. at 32-33.) On remand, Petitioner was resentenced to an aggregate term of 25 years to life plus nine years determinate. (Doc. 8-11, Ex. J at 1.)

         Following this decision, Petitioner then filed a petition for review with the California Supreme Court on March 24, 2014. (Lodgment 20.) Petitioner raised those claims he had previously raised in the Court of Appeal which had been unsuccessful. (Id. at i-ii.) The Supreme Court, on June 11, 2014, summarily denied the petition. (Lodgment 21.)

         On December 29, 2014, Petitioner filed a petition for writ of habeas corpus in the California Superior Court. (Lodgment 22.) Herein, Petitioner raised eight arguments: (1) insufficiency of the evidence; (2) entrapment; (3) juror bias and misconduct; (4) ineffective assistance of trial counsel; (5) ineffective assistance of appellate counsel; (6) erroneous imposition of fines and fees; (7) cruel and unusual punishment; and (8) cumulative effect of error. (Id. at i-iv.) Petitioner also requested an evidentiary hearing based on these claims. (Id. at iv.) The Superior Court found Petitioner failed to make a prima facie showing on any of his claims and denied relief. (Lodgment 23 at 3-10.)

         After the Superior Court's denial, Petitioner file da petition in the Court of Appeal alleging the same claims as in the Superior Court. (Lodgment 24 at i-iv.) The Court of Appeal held all Petitioner's claims in his petition were procedurally barred. (Lodgment 25 at 2.) Specifically, the Court of Appeal found “the claims [were] untimely because [Petitioner] waited more than two years after he was sentenced to assert them” and gave no justification for the delay. (Id.) The Court of Appeal also rejected all of the claims on the merits as well. (Id. at 2-5.)

         On May 26, 2015, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, raising the same grounds as previously raised in his collateral attacks in the lower state courts. (Lodgment 26 at i-iv.) Additionally, Petitioner raised a final argument claiming “all of his state and federal constitutional guarantees” had been violated “by the state court's failure and refussal [sic] to grant habeas corpus relief.” (Id. at iv.) On October 14, 2015, the Supreme Court summarily denied the habeas petition. (Lodgment 27.)

         Finally, on April 14, 2016, Petitioner filed the present petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254, challenging his state court conviction of July 23, 2012. (Doc. 1.) Petitioner rests his petition on the same grounds as he had previously raised in the state courts: (1) insufficiency of the evidence; (2) entrapment; (3) juror bias and misconduct; (4) ineffective assistance of trial counsel; (5) ineffective assistance of appellate counsel; (6) erroneous imposition of fines and fees; (7) cruel and unusual punishment; and (8) cumulative effect of error. (Id. at ii-vi.) Pursuant to a motion to dismiss filed by Respondent, the Court dismissed the sixth argument regarding the imposition of fines and fees. (Doc. 28 at 14.) The Court held it “lack[ed] jurisdiction over Petitioner's habeas claim challenging the trial court's imposition of fines and fees.” (Id.) Accordingly, the claim was dismissed.

         Respondent was ordered to answer Petitioner's petition, and Respondent did so on May 10, 2017. (Doc. 31.) At that time, Respondent also lodged the state court record in this Court. (Doc. 32.) While Petitioner's traverse was originally due no later than June 9, 2017, this Court granted two extensions, the latest of which extended Petitioner's deadline to November 9, 2017. (Docs. 34, 37.) On November 17, 2017, Petitioner submitted a copy of the Court's first order granting an extension and nine pages of medical records. (Doc. 38.) This submission was rejected as not complying with local rules. (Id.) To date, Petitioner has not filed any traverse to Respondent's answer. Thus, before this Court now are the remaining seven claims.


         A federal court “shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of state court only on the ground he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a). Federal habeas courts may not “reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). “[A] state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see Park v. California, 202 F.3d 1146, 1149-50 (9th Cir. 2000) (“a violation of state law standing alone is not cognizable in federal court on habeas”).

         This FAP is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. §2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinary deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877(9th Cir. 2004). Because Petitioner's arguments involve only questions of law, this Court reviews the petition under the “contrary to” and “unreasonable application” clauses of § 2254(d)(1).

         A federal habeas court may grant relief under the “contrary to” clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the “unreasonable application” clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the “unreasonable application” clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be “objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

         Where there is no reasoned decision from the state's highest court, the Court “looks through” to the underlying appellate court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Y1st v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not “furnish a basis for its reasoning, ” federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Hines v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. “[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent, ]” id., the state court decision will not be “contrary to” clearly established federal law. Id. Clearly established federal law, for purposes of §2254(d), means “the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Andrade, 538 U.S. at 72.

         Where the state court did not reach the merits of a claim because of the imposition of a state procedural bar, “there is no state court decision. . . . to which to accord deference.” Pirtle, 313 F.3d at 1167. Thus, this court must review those claims de novo. Id. However, AEDPA “does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.'” Harrington v. Richter, 562 U.S 86, 100 (2011). “Rather, [as the Supreme Court has] explained, ‘[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.'” Johnson v. Williams, 133 S.Ct. 1088, 1094 (2013) (quoting Richter, 562 U.S. at 99).


         In his petition, Petitioner raises seven arguments which he claims entitle him to habeas relief, or in the alternative, an evidentiary hearing. These grounds are as follows: (1) insufficiency of the evidence; (2) entrapment; (3) juror bias and misconduct; (4) ineffective assistance of trial counsel; (5) ineffective assistance of appellate counsel; (6) cruel and unusual punishment; and (7) cumulative effect of error. (Doc. 1 at ii-vi.) In response to this petition, Respondent first raises a timeliness defense wherein Respondent claims Petitioner has not filed the instant petition within the allotted time set out by AEDPA. (Doc. 31 at 12.) Respondent argues all of Petitioner's claims are procedurally defaulted due to this failure to comply with the timeliness doctrine. (Id. at 13.) Moreover, Respondent contends even if Petitioner's claims are not procedurally defaulted, each of Petitioner's claims is meritless. (Id. at 19-27.)

         A. Timeliness under AEDPA

         In 1996, AEDPA created additional procedural requirements for a convicted defendant filing a federal petition for writ of habeas corpus. 28 U.S.C. § 2244. Among other things, AEDPA now requires a petitioner to file an application for writ of habeas corpus in a federal court within one year of an adverse judgment of a state court. 28 U.S.C. § 2244(d)(1). This period of limitation begins on “the date on which the judgment became final by the conclusion of direct review of the expiration of the time for seeking such review; . . . .” 28 U.S.C. § 2244(d)(1)(A). However, when a “properly filed application” for collateral review of the judgment or claim is pending in the state court, this period of limitation will toll. 28 U.S.C. § 2244(d)(2).

         In federal courts in California, as long as the petitioner was “properly pursuing” state court remedies, i.e. collateral review in the state courts, AEDPA's “statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (footnote omitted). However, if a state court finds the petition is untimely under state timing rules, this tolling will not apply, such that the time between filings in California courts will not count under the “pending” language of 2244(d)(2). Evans v. Chavis, 546 U.S. 189 (2006); Carey v. Saffold, 536 U.S. 214 (2002). But, “AEDPA's statute of limitations is not tolled from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed because there is no case ‘pending' during that interval.” Nino, 183 F.3d at 1006.

         A pro se prisoner's pleading is deemed filed on the date of its submission to prison authorities for mailing to the court, as opposed to the date of its receipt by the court clerk. Houston v. Lack, 487 U.S. 266, 276 (1988). To benefit from this so-called prisoner mailbox rule, a prisoner must meet two requirements: (1) he must be proceeding without assistance of counsel, and (2) he must deliver his filing to prison authorities for forwarding to the court. Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003).

         In this case, Petitioner has proceeded pro se since his direct appeal was denied by the California Supreme Court. (See, e.g., Lodgment 22.) Thus, the first element is met for Petitioner to avail himself of the prisoner mailbox rule. Additionally, Petitioner includes in all of his petitions submitted to the various courts a document entitled “PROOF OF SERVICE DECLARATION OF SERVICE BY U.S. MAIL.” (See, e.g., Doc. 1 at 102.) This document is provided for Petitioner to fill out a proof of service, and provides a blank line in which Petitioner is to write in the date when Petitioner “turned over to prison officials in a timely fashion” the specific document “for forwarding to the clerk of the court as well as to all parties.” (Id.) This document is sufficient to show Petitioner delivered each of his filings to prison authorities in anticipation of the filings being forwarded to the respective courts. Therefore, Petitioner can appropriately use the prisoner mailbox rule, and the Court accordingly uses the dates indicated on the included proof of service pages instead of the file stamp dates on Petitioner's petitions to calculate time pursuant to AEDPA.

         Petitioner's request for review in the California Supreme Court during his direct appeal was denied on June 11, 2014. (Lodgment 27.) Petitioner then had 90 days to seek review in the United States Supreme Court. Barefoot v. Estelle, 463 U.S. 880, 887 (1983); Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). Under 28 U.S.C. §2244(d)(1)(A), therefore, Petitioner's conviction became final on September 10, 2014. Petitioner did not submit his petition for writ of habeas corpus to prison officials to then be filed in the state court until December 18, 2014. (Lodgment 29 at 75.) The time between these two events was 99 days - effectively meaning 99 days of Petitioner's one year period of limitation elapsed before Petitioner initiated his post-conviction relief proceedings.

         From December 29, 2014 to May 26, 2015, Petitioner's petition went through the collateral attack process provided by the California courts. Specifically, Petitioner submitted his petition to prison officials to be filed in the Superior Court on December 18, 2014, and the petition was denied on January 14, 2015. (Doc. 22; Doc. 23.) Petitioner then filed his petition in the Court of Appeal on February 4, 2015, and the petition was also denied there on March 5, 2015. (Doc. 24; Doc. 25.) Finally, Petitioner filed his petition in the California Supreme Court on May 26, 2015, and the petition was denied on the docket on October 14, 2015. (Doc. 26; Doc. 27.) During this entire process, Petitioner's one year period of limitation was tolled according to 28 U.S.C. § 2244(d)(2), so long as Petitioner was “properly pursu[ing]” his claims. Nino, 183 F.3d at 1006.

         Following this denial by the Supreme Court, Petitioner submitted the current petition to prison officials to be filed with this Court on April 7, 2016 - almost six months after the Supreme Court's denial. (Doc. 1.) The time between these two events was 176 days. These days are no longer tolled because the state collateral attack had been completed, and therefore the days must be counted against the one year period of limitation. Thus, Petitioner used 99 days of the period of limitation before he launched his collateral attack at the state level, and 176 days after such an attack before launching a similar collateral attack at the federal level. Combined, therefore, Petitioner waited 265 days to file the current petition, which is within the one year period of limitation.

         Respondent argues Petitioner's current petition is in fact untimely because the Court of Appeal rejected the petition initially based on its untimeliness.[2] Respondent claims the Court of Appeal's justification for the denial means the one year period of limitation should only be tolled for the pendency of Petitioner's petition filed in the Superior Court. (Doc. 31 at 12.) Respondent's argument is based on Pace v. DeGuglielmo, 544 U.S. 408 (2005), wherein the United States Supreme Court decided “whether a state postconviction petition rejected by the state court as untimely nonetheless is ‘properly filed'” within the meaning of AEDPA's period of limitation. Id. at 410. The Court answered the issue negatively, thus holding that a state court's finding a petition untimely will render the petition improperly filed and not eligible for tolling of the AEDPA statute of limitation.

         California does not have a definitive statute of limitations for criminal defendants mounting collateral attacks. Instead, California requires these attacks merely be launched “in a timely manner.” In re Reno, 55 Cal.4th 428, 459 (2012). Moreover, “it has long been required that a petitioner explain and justify any significant delay in seeking habeas corpus relief.” In re Clark, 5 Cal.4th 750, 765 (1993). Because of this uncertainty, California courts must determine whether petitions are presented without “substantial delay.” In re Reno, 55 Cal.4th at 460.

         In Petitioner's case, the California Court of Appeal discussed the timeliness of Petitioner's petition in one sentence: “The claims are untimely because [Petitioner] waited more than two years after he was sentenced to assert them, but has offered no explanation for the delay.”[3] (Lodgment 25 at 2.) When a petition is rejected by a state court for being untimely, the petition, by definition, cannot be “properly filed” under § 2244(d)(2). Pace, 544 U.S. at 417. Therefore, because the Court of Appeal rejected Petitioner's petition as untimely, AEDPA's tolling statute no longer applied after the Superior Court issued its denial.

         Accordingly, the time between the Court of Appeal's rejection and Petitioner filing the current petition before this Court must be counted against the one year period of limitation.[4] The time between the Superior Court's denial of Petitioner's petition on January 14, 2015, and Petitioner filing the current petition on April 7, 2016 is 499 days. This is very clearly in excess of the one year limit imposed by AEDPA. While this amount of time alone exceeds the period of limitation, Petitioner also waited 99 days after his conviction became final before mounting his initial collateral attack in the California Superior Court. Combined, Petitioner used 598 days, 233 days more than AEDPA's one year period of limitation allowed. Because Petitioner is not entitled to any tolling which would excuse the tardiness of his claims, Petitioner's federal petition is barred by the one year statute of limitation.

         In Petitioner's opposition to Respondent's previously filed motion to dismiss, (Doc. 8-1), Petitioner set forth facts he believed to excuse any untimeliness in filing his petition. (Doc. 17 at 11.) Therein, Petitioner states because he is “in the dark of all jurisprudence, ” he was forced to seek the assistance of an “inmate jailhouse lawyer.” (Id. at 12.) However, during this relationship between Petitioner and the “inmate jailhouse lawyer, ” each of the men were moved from prison to prison - once to the same prison, and next to separate prisons. (Id. at 10.) Petitioner claims because he required this assistance, and the moving from prison to prison was out of Petitioner's control, Petitioner is entitled to equitable tolling of the AEDPA time limit. (Id. at 11, 13.)

         The United States Supreme Court has held that equitable tolling is allowed “only sparingly.” Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). In fact, only two situations have arisen where federal courts have routinely granted such equitable relief: where the claimant timely files a document containing a mistake, and when the claimant is induced or tricked by his adversary to allow the filing deadline to pass. Id. Courts are typically “less forgiving” in situations where the claimant simply failed to exercise due diligence in order to preserve his legal rights. Id, citing Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984).

         Here, Petitioner's failure to comply with the AEDPA time limit does not fall within one of the two recognized situations where federal courts tend to grant equitable tolling. Instead, Petitioner's failure falls squarely within the class of cases where these courts are “less forgiving, ” and typically refuse to grant equitable tolling. Petitioner's case does not present an extraordinary set of facts leading the Court to find equitable tolling warranted. Here, Petitioner did not timely pursue his post conviction relief in such a way that his efforts could be considered diligent. Petitioner blames the necessity of outsourcing his petition to an “inmate jailhouse lawyer” which caused significant delays in filing the petition. This blame is misplaced. Petitioner chose to undertake his own representation and proceed in this collateral attack pro se. While there are certain leniencies for pro se litigants, adhering to statutes of limitation is not one of them. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.), cert. denied, 133 L.Ed.2d 69, 116 S.Ct. 119 (1995) (although pro se pleadings are liberally construed, pro se litigants are nonetheless bound by procedural rules). Cf. Whaleen/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (where the Ninth Circuit held a pro se Petitioner's inability to obtain information about the statute of limitation deadline may warrant equitable tolling).[5]Petitioner's rebuttal to the timeliness requirement for his petition fails; therefore, his petition must ultimately fail for tardiness. The petition is accordingly DENIED on this ground.

         Although the Court is recommending the petition be denied due to failure to adhere to AEDPA's time limits, even if the petition was considered on the merits, Petitioner's substantive claims would ...

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