Opinion
6:22-cv-01027-CL
01-30-2024
SALVADOR HERRERA, Petitioner, v. COREY FUERE, Respondent.
FINDINGS AND RECOMMENDATION
CLARKE, MAGISTRATE JUDGE.
Petitioner Salvador Herrera (“Petitioner”) brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the district judge should DENY the Amended Petition for Writ of Habeas Corpus (ECF No. 31) and decline to issue a certificate of appealability.
BACKGROUND
In September 2012, Petitioner entered guilty and no contest pleas to two counts of Sexual Abuse in the First Degree and one count each of Sexual Abuse in the Second Degree, Attempted Sexual Abuse in the Second Degree, and Rape in the Third Degree. (Resp't Exs. (ECF No. 18), Exs. 101, 104, 105.) The trial court sentenced Petitioner to life imprisonment without the possibility of parole pursuant to Oregon Revised Statute (“ORS”) § 137.719, a “three strikes” law applicable to certain recidivist sex offenders.(Id.)
ORS 137.719 provides that the presumptive sentence for a felony sex crime is life in prison without the possibility of parole if the offender has been sentenced for felony sex crimes at least two times prior to the instant offense. OR. REV. STAT. § 137.719(1).
Petitioner filed a direct appeal, asserting that the trial court had erred in imposing a sentence of life without the possibility of parole pursuant to ORS 137.719. (Resp't Ex. 106 at 2.) The Oregon Court of Appeals affirmed without opinion on September 10, 2014. (Resp't Ex. 109.) Petitioner did not seek further review.
Petitioner then filed a petition for postconviction relief (“PCR”) on November 29, 2016. (Resp't Ex. 110.) In his counseled second amended petition, Petitioner alleged that his trial attorney was ineffective in several respects, including when she failed to adequately preserve and argue that Petitioner's life sentence violated the Eighth Amendment. (Resp't Ex. 113 at 6-8.) After a hearing, the PCR court denied relief. (Resp't Exs. 133, 134.)
Petitioner appealed the PCR court's judgment, raising a single assignment of error. (Resp't Ex. 135 at 2.) In a written per curiam opinion issued on November 4, 2021, the Oregon Court of Appeals affirmed the PCR court's decision. Herrera v. Cain, 316 Or.App. 280 (2021). On April 7, 2022, the Oregon Supreme Court denied review. (Resp't Ex. 139.)
On July 11, 2022, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court. In his counseled amended petition, Petitioner raises two grounds for relief:
The Court appointed the Federal Public Defender to represent Petitioner on January 26, 2023 (ECF No. 23).
Ground I: [Petitioner's guilty plea was involuntary, in violation of his right to due process guaranteed by the Fifth and Fourteenth Amendments, because his attorney failed to adequately advise him of the likelihood that he would receive a sentence of life imprisonment without the possibility of parole following conviction.
Ground II: [Petitioner] was denied effective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights, because his trial attorney failed to:
A. Exercise reasonable professional skill and judgment in failing to adequately apprise [Petitioner] of the probability of a sentence of life without the possibility of parole, thereby failing to ensure that his guilty pleas were voluntary, knowing, and intelligent.
B. Argue that his sentence of life without the possibility of parole was disproportionate and cruel and unusual under the Eighth Amendment.
C. Present mitigating evidence in plea negotiations and sentencing including, but not limited to, a report by Dr. Kevin Gordon, Ph.D.(Am. Pet. at 2-3.) Respondent urges the Court to deny habeas relief, arguing that Petitioner filed the initial pro se petition and the counseled amended petition after the statute of limitations had expired. (Resp. to Am. Pet. (ECF No. 32) at 3.)
DISCUSSION
I. The One-Year Statute of Limitations
A. Legal Standards
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one-year statute of limitations that applies to a petition for a writ of habeas corpus filed “by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). Unless otherwise tolled or subject to delayed accrual, the limitations period commences when the judgment becomes final “by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A) (“Section 2244(d)(1)(A)”). The period of direct review includes the ninety-day period within which a petitioner can petition for writ of certiorari with the United States Supreme Court, whether or not he files such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).
The limitations period is statutorily tolled during the pendency of a “a properly filed application for State post-conviction or other collateral review.” 28 U.S.C. § 2244(d)(2). A properly filed application remains “pending as long as a state avenue for relief remains open, whether or not a petitioner takes advantage of it.” Melville v. Shinn, 68 F.4th 1154, 1156 (9th Cir. 2023). The limitations period is not tolled, however, “from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed.” Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (quoting Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006)).
Prior to Melville, the Court understood the relevant date marking the end of the pendency of a properly filed PCR petition to be the date the appellate judgment issued. See, e.g., Clemo v. Cain, No. 2:21-cv-01821-AA, 2022 WL 16823315, at *2 (D. Or. Oct. 6, 2022) (noting that the “appellate judgment issued in petitioner's PCR proceeding, and the statute of limitations restarted”).
B. Analysis
After entering guilty and no contest pleas in the trial court, Petitioner directly appealed his convictions. The Oregon Court of Appeals affirmed without opinion on September 10, 2014, and Petitioner did not seek further review. Petitioner's direct appeal proceedings therefore became final on October 15, 2014, when the time for seeking such review expired. See OR. R. APP. P. 9.05(2) (instructing that “any party seeking to obtain review of a decision of the Court of Appeals shall file a petition for review in the Supreme Court within 35 days after the date of the decision of the Court of Appeals). Petitioner then filed his PCR petition on November 29, 2016,tolling the AEDPA's statute of limitations.
Although the Ninth Circuit held in Bowen that a criminal conviction is not final until the ninety-day period to petition the U.S. Supreme Court for certiorari has elapsed, Petitioner could not have sought certiorari because he did not file a petition for review with the Oregon Supreme Court. See 28 U.S.C. § 1257(a) (instructing that “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by a writ of certiorari”). The limitations period thus began to run when the time to file for such review expired. See Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007) (concluding that where the petitioner did not seek review from the Arizona Supreme Court, his direct appeal was final for the purposes of Section 2244(d) when his time for seeking such review expired); see also Lambert v. Paersson, No. 3:17-CV-00331-BR, 2019 WL 3842386, at *2 n.1 (D. Or. Aug. 13, 2019) (explaining that because the petitioner did not file a direct appeal, she was not entitled to an additional ninety days pursuant to Bowen).
Because state law dictates when a PCR petition is properly filed, Orpiada v. McDaniel, 750 F.3d 1086, 1089 (9th Cir.), cert. denied, 574 U.S. 99 (2014), and Oregon has rejected the mailbox rule in the context of commencing a PCR proceeding, Baldeagle v. Lampert, 185 Or.App. 326, 330-32 (2002), the statute of limitations was not tolled in this case until Petitioner's PCR petition was filed in state court.
The PCR court ultimately denied relief, and Petitioner appealed. The Oregon Court of Appeals affirmed, and, on April 7, 2022, the Oregon Supreme Court denied review. Petitioner thereafter had fourteen days to seek reconsideration, although he declined to do so. See OR. R. APP. P. 9.25(1) (instructing that “[a] party seeking reconsideration of a decision of the Supreme Court shall file a petition for reconsideration within 14 days after the date of the decision”). Petitioner's PCR petition therefore remained pending until April 21, 2022, when the time for seeking reconsideration expired and “the application ha[d] achieved final resolution through the State's post-conviction procedures.” Melville, 68 F.4th at 1160 (simplified). Petitioner then signed his federal habeas petition on July 11, 2022.
Between October 15, 2014-when the judgment became final upon expiration of the time for seeking review in the Oregon Supreme Court-and November 29, 2016-when Petitioner filed his PCR petition-775 days accrued. Between April 21, 2022-when Petitioner's PCR petition “ceased to be pending”-and July 11, 2022-when Petitioner signed his federal habeas petition and delivered it to prison officials for mailing-51 days accrued. In total, Petitioner waited 826 days before filing for federal habeas relief, which far exceeds the 365 days permitted under the AEDPA. Because Petitioner took more than 365 days to file his habeas petition, it is untimely and must be denied unless equitable tolling applies.
The Court notes that although the parties agree that the petition was untimely, neither calculated the limitations period correctly.
II. Equitable Tolling
A. Legal Standards
The one-year limitations period may be equitably tolled upon a showing “‘(1) that [the petitioner] 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) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Rudin v. Myles, 781 F.3d 1043, 1054 (9th Cir. 2014). Equitable tolling is “a flexible, fact-specific” inquiry. Gibbs v. Legrand, 767 F.3d 879, 885 (9th Cir. 2014). The threshold to trigger equitable tolling is “a very high bar, and is reserved for rare cases.” Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014); see also Spitsyn v. Moore, 345 F.3d 796, 800 (9th Cir. 2003) (noting that equitable tolling “is justified in few cases”). A petitioner thus “bears a heavy burden to show that [he] is entitled to equitable tolling, ‘lest the exceptions swallow the rule.'” Rudin, 781 F.3d at 1055 (quoting Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010)).
B. Analysis
Petitioner argues that his “cognitive impairments, low education, and lack of advice from counsel” constitute “extraordinary circumstances” that prevented him from timely filing his federal habeas petition. (Pet'r's Br. Supp. Equitable Tolling (ECF No. 39), at 1, 5.) Petitioner further claims that even though he was unaware of the one-year limitations period for pursuing federal habeas relief, he diligently pursued his state postconviction remedies within Oregon's two-year statute of limitations and filed his federal habeas petition within two months after the appellate judgment issued in his PCR case. (Id. at 5-7.) Petitioner thus argues that he is entitled to equitable tolling such as to render the petition timely. (Id. at 7.)
1. Petitioner Fails to Establish “Extraordinary Circumstances” Prevented Him from Timely Filing
To justify equitable tolling, Petitioner must show “that some extraordinary circumstance stood in his way.” Holland, 560 U.S. at 649. In other words, Petitioner must show that “extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a [habeas] petition on time.” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (simplified). “[T]he requirement that extraordinary circumstances ‘stood in [the petitioner's] way' suggests that an external force must cause the untimeliness, rather than . . . merely ‘oversight, miscalculation, or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008)). For the reasons set forth below, Petitioner fails to establish that extraordinary circumstances prevented him from timely filing his federal habeas petition.
Because Petitioner fails to establish that “extraordinary circumstances” stood in his way, the district judge need not consider whether Petitioner diligently pursued his rights.
a. Petitioner's “Low Education,” Lack of Legal Sophistication, and Possible Cognitive Impairments
Petitioner argues that his “low education,” lack of legal sophistication, and “possible cognitive impairments” constitute extraordinary circumstances to warrant equitable tolling. (Pet'r's Br. at 5.) Specifically, Petitioner attests that he struggled in school and dropped out in the eighth grade, that he has “a hard time understanding legal stuff[,]” and that he was exposed to “toxic levels” of mercury as a child. (Decl. of Salvador Michael Herrera (ECF No. 39) (“Herrera Decl.”) ¶¶ 2, 7.) Although Petitioner acknowledges that he has never been tested for a learning disability, and that he was able to earn a GED while incarcerated, he argues that he lacked “the tools to understand the complicated AEDPA statute of limitations or the ‘two-year/one-year trap' created by the different statute of limitations for Oregon state post-conviction relief and federal habeas corpus petitions.” (Pet'r's Br. at 6.)
Petitioner's arguments are not well taken. As an initial matter, it is well established that lack of education, lack of legal training, and ignorance of the law do not constitute extraordinary circumstances to warrant equitable tolling. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding that the petitioner's lack of legal sophistication and inability to correctly calculate the limitations period did not provide grounds for equitable tolling); Vasquez v. Martel, No. 2:09-cv-3141 GEB JHN, 2011 WL 285045, at *4 (E.D. Cal. Jan 25, 2011) (explaining that “a low educational level, even to the point of illiteracy, does not automatically entitle a[] [petitioner] to equitable tolling”). Moreover, Petitioner reports that he was able to successfully complete a GED while incarcerated, (Herrera Decl. ¶ 2), which indicates that he is not illiterate, unintelligent, or otherwise so lacking in analytical “tools” as to justify equitable tolling. See Rodarte v. Frink, No. CV 14-09605-PA (VBK), 2015 WL 7965856, at *4 (C.D. Cal. July 9, 2015) (explaining that “the fact that Petitioner can read, and apparently has an overall educational level between the 9th and 10th grades, would . . . indicate that Petitioner is not illiterate, or so un-intelligent, as to justify equitable tolling”), report and recommendation adopted, 2015 WL 8022945 (C.D. Cal. Dec. 3, 2015); see also Pineda v. Valenzuela, No. EDCV 14-2630-VBF (GJS), 2015 WL 4537271, at *7 (C.D. Cal. June 3, 2015) (explaining that lack of education and legal sophistication are circumstances “that are shared by many, if not most, of [the petitioner's] fellow prisoners” and thus “do not rise to the level of the ‘extraordinary' type of circumstances needed to invoke the sparingly applied . . . equitable tolling doctrine”) (simplified), report and recommendation adopted, 2015 WL 4549208 (C.D. Cal. July 27, 2015).
Furthermore, the Ninth Circuit has rejected arguments concerning the alleged “trap” caused by the incongruence of the Oregon postconviction and federal habeas limitations periods, as cases in this district have repeatedly recognized. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (finding that “there is no ‘trap'” for an Oregon habeas petitioner who seeks PCR remedies within the two-year limitations period and is subsequently time-barred from seeking federal review because “[i]t is unreasonable for a federal habeas petitioner to rely on a state statute of limitations rather than the AEDPA's statute of limitations”); Ross v. Bowser, No. 2:19-cv-001116-AA, 2021 WL 5829021, at *3 (D. Or. Dec. 8, 2021) (applying Ferguson and recognizing that this “argument has been rejected by the Ninth Circuit and does not support equitable tolling”); Drollinger v. Nooth, No. 2:13-cv-01756-ST, 2015 WL 518625, at *3 (D. Or. Feb. 4, 2015) (citing Ferguson and holding that “[t]he simple fact that Oregon allows a prisoner two years to file a state PCR action, while AEDPA's one-year statute of limitations is only one year, does not excuse an untimely federal habeas filing”).
Finally, Petitioner's argument that a “possible” cognitive impairment amounts to an extraordinary circumstance that prevented him from timely filing is conclusory and unsupported by the record. Although Petitioner offers evidence that he was exposed to and treated for mercury poisoning as a child, he admits that he does not know if the mercury exposure “affected [his] mental functioning[,]” (Herrera Decl. ¶ 2.) and he provides no evidence or argument that any possible impairments actually caused his untimely filing. See Bryant v. Arizona Attorney General, 499 F.3d 1056, 1060 (9th Cir. 2007) (explaining that a petitioner must establish a “causal connection” between the extraordinary circumstance and his failure to file a timely petition); see also Yow Ming Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014) (explaining that constitute an extraordinary circumstance to warrant equitable tolling, “the mental impairment must be so debilitating that it is the but-for cause of the delay”). Thus, Petitioner's lack of education, lack of legal sophistication, and possible cognitive impairments do not amount to extraordinary circumstances to warrant equitable tolling.
b. Lack of Advice from Counsel
Petitioner argues that he “was not properly advised of the time limits associated with seeking post-conviction relief by his direct appeal counsel[,]” attesting that she neglected to inform him “that the habeas ‘clock' starts running at the same time as the clock for postconviction proceedings, or that this statute of limitations is only one year.” (Herrera Decl. ¶ 3.) Petitioner further attests that “[n]either [his] PCR appellate lawyer nor [his] lawyer at the PCR trial level told [him that he] could file a protective federal habeas petition while [his] PCR was still in state court or why it might be important to do so.” (Herrera Decl. ¶ 6.) As a result, Petitioner argues that he was “unaware the federal statute of limitations had expired.” (Pet'r's' Br. at 6-7.)
Although “[e]quitable tolling may be warranted in instances of unprofessional attorney behavior,” Doe v. Busby, 661 F.3d 1001, 1011-12 (9th Cir. 2011) (simplified), extraordinary circumstances may exist only where an attorney's “acts or omissions . . . transcend garden variety negligence and enter the realm of professional misconduct[,]” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) (simplified). However, only “a sufficiently egregious misdeed like malfeasance or failing to fulfill a basic duty of client representation” will warrant equitable tolling. Doe, 661 F.3d at 1012 (simplified).
Petitioner attributes his ignorance of the one-year federal habeas deadline and the possibility of filing a protective habeas petition to his previous attorneys' failures to properly advise him, but he does not identify any authority to suggest that his direct appeal, PCR, or PCR appellate attorneys had a duty to advise him as to the federal limitations period or to assist him in ensuring the timeliness of his habeas petition. See See Dawson v. Kelly, No. 6:20-cv-00698 2023 WL 112302, at *6 (D. Or. Jan. 4, 2023) (finding, among things, that PCR appellate counsel was not obligated to advise the petitioner with respect to the federal limitations period); Sumner v. Steward, No. 3:14-cv-00627-HZ, 2015 WL 1609398, at *3 (D. Or. Apr. 6, 2015) (finding “no authority for the proposition that a state PCR attorney is obligated to advise a client regarding the AEDPA's statute of limitations”); Jackson v. Nooth, No. 2:13-cv-00798-ST, 2014 WL 4983666, at *4 (D. Or. Oct. 1, 2014) (explaining that although direct appeal counsel “did not advise petitioner of AEDPA's one-year statute of limitations applicable to federal habeas corpus cases, he was under no duty to do so”). Consequently, Petitioner's previous attorneys' omissions of any information regarding the one-year limitation period or the possibility of filing a protective habeas petition does not constitute an extraordinary circumstance to warrant equitable tolling. See Childs v. Amsberry, No. 2:17-00360-SI, 2022 WL 13801080, at *7 (D. Or. Oct. 20, 2022) (holding that the petitioner's PCR attorneys' failures to advise him about the one-year limitations period and to ensure his habeas petition would be timely did not amount to “extraordinary circumstances” because they “were not tasked with advising him regarding the AEDPA's statute of limitations, or to assist him in filing a timely federal habeas corpus case”).
CONCLUSION
Based on the foregoing, the district judge should DENY the Amended Petition for Writ of Habeas Corpus (ECF No. 31) as untimely, and should DISMISS this proceeding, with prejudice. Petitioner has not made a substantial showing of the denial of a constitutional right, and therefore the district judge also should DENY a Certificate of Appealability. See 28 U.S.C. § 2253(c)(2).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will Constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment pursuant to the Magistrate Judge's recommendation.