Opinion
No. C 00-0450 CRB (PR)
February 7, 2001
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
Petitioner was convicted of multiple sexual offenses by a jury in the Superior Court of the State of California in and for the County of Contra Costa. On September 29, 1993, he was sentenced to state prison for 24 years to be served consecutively to a 15-year prison term in another case. The California Court of Appeal affirmed the judgment of conviction and, on February 23, 1995, the Supreme Court of California denied review.
Petitioner did not seek further state relief until 1998, when, on August 28, 1998, he filed a petition for a writ of habeas corpus in Contra Costa County Superior Court. It was denied on September 28, 1998. He then sought habeas relief from the California Court of Appeal and Supreme Court of California, which summarily denied his requests for a writ of habeas corpus on May 19, 1999 and September 29, 1999, respectively.
On February 9, 2000, petitioner filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on March 28, 2000, the court noted a possible statute of limitation problem and ordered respondent to address whether the petition was time-barred under 28 U.S.C. § 2244(d). Respondent filed a motion to dismiss the petition as untimely and petitioner filed an opposition.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996 and imposed for the first time a statute of limitation on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences now must be filed within one year from the date on which the judgment became 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). The one-year statute of limitation is tolled for the "time during which a properly filed application for State post-conviction or other collateral review. . . is pending." Id. § 2244(d)(2).
In rare instances, the limitation period may run from a date later than the date on which the judgment became final, see 28 U.S.C. § 2244(d)(1)(B)-(D); however, this case does not present any such instance.
AEDPA's one-year statute of limitation did not start running against any state prisoner before the statute went into effect on April 24, 1996. Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997) (allowing § 2244(d)'s limitation period to commence before AEDPA's enactment would have an impermissible retroactive effect), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). A prisoner with a state conviction finalized before April 24, 1996, such as petitioner, therefore had until April 23, 1997 to file a federal habeas petition. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). Petitioner did not file the instant petition until February 9, 2000.
Petitioner did collaterally challenge his conviction in the state courts from August 28, 1998 to September 29, 1999. However, the one-year limitation period was not tolled under § 2244(d)(2) during this time because it had already expired one year after it began to run on April 24, 1996. Section 2244(d)(2) cannot "`revive' the limitationl period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitation period is expired, collateral petitions can no longer serve to avoid a statute of limitation." Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998).
Petitioner argues that he is entitled to equitable tolling because his "lack of legal knowledge or assistance has made it almost impossible to research and prepare his pro per documents for this and other courts." He also argues that his ability to research and prepare his pro per documents was impaired by frequent "lock-downs" in the state prisons.
Our court of appeals has determined that the one-year limitation period can be equitably tolled because § 2244(d) is a statute of limitation and not a jurisdictional bar. Beeler, 128 F.3d at 1288. But equitable tolling will not be available in most cases because extensions of time "will only be granted if `extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Id. (citation and internal quotation marks omitted). When external forces, rather than a petitioner's lack of diligence or own doing, account for the failure to file a timely claim, equitable tolling of the statute of limitation may be appropriate. Miles, 187 F.3d at 1107. Petitioner makes no such extraordinary showing. Pro se status is not an extraordinary circumstance or external factor that may excuse the many and oftentimes complex procedural requirements a prisoner encounters when seeking federal habeas corpus relief. See, e.g., Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy of pro se petitioner not sufficient cause to avoid procedural bar); United States v. Flores, 901 F.2d 231, 236 (5th Cir. 1993) (pro se status, illiteracy, deafness and lack of legal training not external factors excusing abuse of the writ). And occasional, or even frequent "lock-downs," cannot excuse the delay here. Plaintiff was not on continuous "lock-down" from the time the limitation period began running against him on April 24, 1996 until he first sought collateral relief on August 28, 1998. Equitable tolling is not in order here.
See. e.g., Miles, 187 F.3d at 1107 (equitable tolling applied where prison authorities failed to follow prisoner's request to draw filing fee for habeas petition from his trust account and mail it with petition to district court for filing); Kelly, 163 F.3d at 541-41 (equitable tolling applied where there was earlier court-ordered stay of habeas proceedings, alleged mental incompetency, and existence of timely habeas proceedings pending at one time that were mistakenly dismissed); Beeler, 128 F.3d at 1289 (withdrawal of attorney who was aiding putative habeas petitioner to prepare petition and whose work product was not usable by replacement attorney qualified as extraordinary circumstances which justified equitable tolling of statute of limitation).
CONCLUSION
For the foregoing reasons, respondent's motion to dismiss the petition as untimely is GRANTED.
The clerk shall enter judgment in favor of respondent and close the file.
SO ORDERED.