United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se in this federal habeas
corpus action filed pursuant to 28 U.S.C. § 2254.
Pending before the court is respondent's motion to
dismiss petitioner's federal habeas corpus application on
the basis that it is barred by the statute of limitations.
ECF No. 8. The motion has been fully briefed. See
ECF Nos. 11-13. For the reasons discussed below, the court
recommends that the motion to dismiss be granted and
petitioner's application for federal habeas corpus relief
be dismissed with prejudice as time barred.
Factual and Procedural History
instant federal habeas application challenges
petitioner's conviction for three counts of first-degree
murder with special circumstances following a jury trial in
the Sacramento County Superior Court. ECF No. 1 at 1. On June
22, 2012, petitioner was sentenced to three consecutive terms
of life in prison without parole. Id.; see
also ECF No. 12-1 at 2 (Abstract of Judgment).
filed a direct appeal in the California Court of Appeal which
affirmed his convictions on March 17, 2016. ECF No. 1 at 95;
ECF No. 12-2 at 2-35 (Direct Appeal Opinion). The California
Supreme Court denied his petition for review on June 8, 2016.
ECF No. 1 at 17; ECF No. 12-4 at 2 (California Supreme Court
first state habeas corpus petition was filed in the
Sacramento County Superior Court on September 5,
2017. ECF No. 12-5 at 68. It was denied on
October 24, 2017. ECF No. 12-6 at 2-4. Next, petitioner filed
a state habeas petition in the California Court of Appeal on
December 21, 2017. ECF No. 12-7 at 71. It was denied on
February 1, 2018. ECF No. 1 at 92, ECF No. 12-8 at 2.
Petitioner's third and final state habeas petition was
filed in the California Supreme Court on March 2, 2018. ECF
No. 1 at 28; ECF No. 12-9 at 75. It was denied on May 9,
2018. ECF No. 1 at 18, ECF No. 12-10 at 2.
6, 2018 petitioner filed the pending federal habeas corpus
application raising four claims for relief. ECF No. 1 at 15.
First, petitioner challenges his first-degree murder
convictions on the ground that he lacked the requisite mental
state since he was not the triggerman. ECF No. 1 at 5. Next,
petitioner contends that his Sixth Amendment right to
confrontation and his Fourteenth Amendment right to due
process were violated based on the trial court's
admission of expert gang testimony. ECF No. 1 at 7. In his
third claim for relief petitioner alleges that the state
courts applied the wrong standard in denying his state habeas
corpus petitions. ECF No. 1 at 8. Finally, petitioner asserts
that his Fifth Amendment right against self-incrimination was
violated when the trial court admitted his statements to
police even though he did not knowingly and intelligently
waive his Miranda rights. ECF No. 1 at 10. As will
become relevant to petitioner's request for equitable
tolling of the statute of limitations governing federal
habeas relief, this last argument is based on
petitioner's lack of English as well as Spanish language
skills since his native language is Nahuatl. Id.
Motion to Dismiss
motion to dismiss, respondent argues that petitioner's
federal habeas application was filed “nearly one month
after” the one-year statute of limitations expired. ECF
No. 9 at 2. Petitioner's conviction became final on
September 6, 2016 when the 90-day period to file a petition
for certiorari in the United States Supreme Court expired.
ECF No. 9 at 2-3. The federal statute of limitations started
the next day and expired one year later on September 7, 2016
without any statutory or equitable tolling. Id. at
3. According to respondent, 363 days of the one-year
limitations period had elapsed before petitioner filed his
first state habeas petition on September 5, 2017.
Id. at 3-4. Even granting petitioner statutory
tolling for the entire time that all three of his state
habeas petitions were pending, the instant federal petition
is untimely because petitioner had until May 11, 2018 to file
it. ECF No. 9 at 4. Respondent therefore contends that
petitioner's federal habeas application that was filed on
June 6, 2018, is almost one month late. Id. As a
result, respondent requests that the petition be dismissed
with prejudice. Id. at 5.
opposition, petitioner requests equitable tolling on the
basis of his “severe language problem/barrier going
back to his arrest and interrogation by
police….” ECF No. 19 at 4. Petitioner's
native language is Nahuatl, an “Aztec Indian
dialec[t].” Id. According to petitioner, this
language barrier constitutes an extraordinary circumstance
beyond his control that warrants equitably tolling the
statute of limitations. Id. In support of this
contention, petitioner submitted an affidavit from his
jailhouse lawyer, Danny Montana Guerra, who has known
petitioner “since approximately December 2016.”
ECF No. 19 at 8; see also ECF No. 1 at 32. Mr.
Guerra declared that “I quickly found that Mr. Delgado
can read, [and] speak very little English, and his
comprehension level in English was/is severely
challenged….” Id. at 1.
also requests equitable tolling of the statute of limitations
based on deficiencies in the law library computers at
Ironwood State Prison where petitioner was incarcerated
between September 2016 and July 2017. ECF No. 19 at 3.
Specifically, petitioner contends that the cases supporting
the arguments in support of his state habeas petitions were
not available until July 2017 because the law library
computer database was not updated in December
argues that he was denied access to these necessary legal
research materials for a period of 11 months and should be
granted equitable tolling on this basis. Id. While
acknowledging that Daily Appellate Journal Reports
(“DAR's”) are an alternate legal resource at
the prison law library, petitioner submits an affidavit from
his jailhouse lawyer indicating that these were not delivered
during the same 11-month time frame. ECF No. 19 at 9
(Declaration of Danny Montana Guerra). According to
petitioner, the denial of access to these legal reference
materials by the CDCR for a period of 11 months constitutes
an extraordinary circumstance beyond petitioner's
control. ECF No. 19 at 5. But for the lack of access to these
materials, petitioner and his jailhouse lawyer would have
been able to file his state habeas petitions “in a more
speedier/diligent manner….” Id. at 6.
of reply, respondent points out that petitioner's
language barrier was not an extraordinary circumstance that
justifies equitable tolling. ECF No. 22 at 2-8. Respondent
also contends that petitioner was not diligent in seeking
assistance in his native language by showing any effort he
made to obtain “legal materials in Nahuatl or to
procure translation help from other inmates, library
personnel, or other sources.” Id. at 3-4
(citing Mendoza v. Carey, 449 F.3d 1065, 1070 (9th
Cir. 2006). Moreover, petitioner's assertions that he
does not understand Spanish are belied by the trial court
record denying his suppression motion. ECF No. 22 at 4. At
the time of his arrest for the instant case, petitioner had
lived in the United States for 5 years and spoke Spanish with
his wife, his girlfriend Alma Rosa, his neighbors, his fellow
gang members as well as Placerville and Sacramento law
enforcement officers. ECF No. 23-2 at 9-11. Petitioner never
told Deputy Pena, the translating officer during his police
interview, that he did not understand Spanish or that he
needed a Nahuatl interpreter. ECF No. 22 at 5 (citing ECF No.
23-2 at 22-23). After reviewing the audio and video recording
of his interview with police, the trial court specifically
found that petitioner “[d]uring the giving of the
Miranda waivers and the entirety of more than an
hour interview, … never appeared confused or not to
understand the question posed, or Deputy Pena's Spanish.
Mr. Delgado responded in Spanish without hesitation, and
appeared to speak Spanish with ease and fluency. It was clear
that at certain points Mr. Delgado understood the English
spoken by Deputy Pena and Detective Turnbull…. Several
times he spoke English to clarify a point.” ECF No.
23-3 at 3. Even on appeal, the California Court of Appeal
concluded that there was substantial evidence demonstrating
petitioner's command of the Spanish language to
“refute his claims of [a] defective waiver of his
Miranda rights.” ECF No. 12-2 at 4.
respect to petitioner's request for equitable tolling
based on inadequacies in the prison law library, respondent
points out that “[p]etitioner's ability to raise
his claims were not dependent on cases published between
September 2016, and July 2017.” ECF No. 22 at 9.
Moreover, three out of the four cases that were purportedly
unavailable during this time frame involve issues of state
law and not federal constitutional claims cognizable on
habeas. Id. Thus, these cases do not provide any
legal basis upon which petitioner could have requested
federal habeas corpus relief. Id. Accordingly,
respondent requests that the court deny petitioner's
request for equitable tolling and dismiss his federal habeas
petition with prejudice as untimely filed.