United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISOX CLAIRE UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se and in forma pauperis, has
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. ECF No. 1. On August 7, 2017, respondent
filed a motion to dismiss this action on grounds that it is
time-barred under the applicable one-year statute of
limitations, 28 U.S.C. § 2244(d)(1). ECF No. 9.
Petitioner opposed the motion on September 25, 2017. ECF No.
12. Respondent filed a reply on December 29, 2017. ECF No.
2008, petitioner was convicted of simple kidnapping, robbery
and possession of stolen property by a Sacramento County
jury. See ECF No. 1 at 21; ECF No. 10, Lodged
Document (“LD”) 1. On March 12, 2009, he was
sentenced to twenty-five years in prison. LD 1. The sentence
followed plaintiff's agreement to waive custody credits
and appeal rights in order avoid a potential life sentence.
See ECF No. 1 at 21; LD 3.
did not file a direct appeal.
December 8, 2015, petitioner filed a petition for writ of
habeas corpus in Sacramento County Superior Court. ECF No.
10, LD 2. The petition was denied on January 29, 2016.
Id., LD 3.
on February 23, 2016, petitioner filed a habeas petition in
the California Court of Appeal. Id., LD 4. It was
summarily denied on March 4, 2016. Id., LD 5.
23, 2016, petitioner filed a habeas petition in the
California Supreme Court. ECF No. 10, LD 6. It was summarily
denied on August 31, 2016. Id., LD 7.
instant petition was filed on October 31, 2016. ECF No. 1.
The petition includes an assertion that equitable tolling is
appropriate on the ground of disabilities. Id. at
August 7, 2017, respondent filed the instant motion to
dismiss. ECF No. 9. Petitioner filed an opposition on
September 25, 2017, and a duplicate filing on October 16,
2017. ECF Nos. 12, 14. On December 29, 2017, respondent filed
a reply. ECF No. 17.
RESPONDENT'S MOTION TO DISMISS
argues that petitioner's federal habeas petition is
untimely pursuant to 28 U.S.C. § 2244(d). See
ECF No. 9 at 2. Respondent contends that because petitioner
did not appeal his sentence, it became final on May 11, 2009,
sixty-days after the imposition of petitioner's sentence.
See id. at 3. As a result, the one-year statute of
limitations clock began to run on May 12, 2009 and ran out on
May 11, 2010, absent tolling. Id.
further contends that because petitioner did not file any
post-conviction appeals within the one-year statute of
limitations period, no tolling occurred. See id.
Therefore, when petitioner filed the instant petition on
October 31, 2016, he exceeded the one-year statute of
limitations by six years. Consequently, the petition is
time-barred. See id.
asserts that neither petitioner's mental disabilities,
nor his placement in the mental health treatment population
in prison, nor his lack of knowledge of the law entitle him
to equitable tolling because petitioner has not demonstrated
that (1) he pursued his rights diligently, and (2) some
extraordinary circumstance stood in his way and prevented him
from timely filing. See ECF No. 9 at 5-6 (citing
Pace v. DiGuglielmo, 544 U.S. 408 (2005)).
Respondent further contends that petitioner's mental
impairments do not support equitable tolling under Bills
v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010)
(equitable tolling available on grounds of mental impairment
only where petitioner is unable to personally understand the
need to timely file or to prepare the petition, and is unable
to meet the filing deadline due to impairment).
petitioner's opposition,  he contends that equitable
tolling is appropriate because: (1) as a juvenile defendant,
he was told by his attorney that one of the conditions of his
plea deal was the forfeiture of his right to appeal, and (2)
he suffers from a learning and comprehension disability.
See ECF No. 14 at 2. Petitioner further asserts that
given the ineffective assistance of trial counsel, the State
should bear responsibility for the time lapse. See
id. at 3 (citing Kimmelman v. Morrison, 477
U.S. 365 (1986) and Murray v. Carrier, 477 U.S. 478
(1986)) . Petitioner also cites to Lafler v. Cooper,
566 U.S. 156 (2012) to assert that he had a ...