Opinion
No. C 00-1403 SI(pr)
January 11, 2001
ORDER OF DISMISSAL
INTRODUCTION
Hai Nguyen, a prisoner at the Mule Creek State Prison, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition as untimely under 28 U.S.C. § 2244(d) and Nguyen has opposed the motion. For the reasons discussed below, the court will grant respondent's motion and dismiss the untimely petition.
BACKGROUND
Nguyen's petition states that he was convicted in Santa Clara County Superior Court of several counts of robbery and false imprisonment. He was sentenced to 22 years in prison in 1995. He appealed his conviction. The California Court of Appeal affirmed Nguyen's conviction on January 29, 1997 and the Supreme Court of California denied his petition for review on April 16, 1997. He filed unsuccessful petitions for writ of habeas corpus in state court in 1999: his first petition was filed in the Santa Clara County Superior Court on April 30, 1999 and his last state petition was denied by the California Supreme Court on December 30, 1999.
Nguyen filed two petitions for writ of habeas corpus in federal court. His first petition was filed on April 20, 1998 and dismissed on May 4, 1998 in the U.S. District Court for the Eastern District of California.See Nguyen v. Henry, E.D. Cal. No. C98-712 WBS. According to Nguyen, that petition was dismissed without prejudice to him refiling after he had exhausted state court remedies for his claims. The action now before the court is Nguyen's second federal petition for writ of habeas corpus. Although this action originally was filed in the U.S. District Court for the Eastern District of California, it was transferred to this district on April 10, 2000. The proof of service attached to the petition indicates it was mailed on February 29, 2000, and the petition was stamped "filed" in the U.S. District Court for the Eastern District of California on March 10, 2000.
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 limitations on petitions for the writ of habeas corpus filed by state prisoners. A petition filed by a prisoner challenging a non-capital state conviction or sentence 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. See 28 U.S.C. § 2244(d)(1)(A). In rare circumstances, 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), but this case presents no such circumstances.
Nguyen's conviction became final on July 15, 1997, when the deadline passed for him to file a petition for writ of certiorari in the U.S. Supreme Court. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (AEDPA statute of limitations period begins to run on the date the ninety-day period to petition for writ of certiorari expires). He thus had until July 15, 1998 to file his federal habeas petition. Nguyen's current petition was not filed until many months after that deadline. Unless he is entitled to some tolling, he is time-barred.
The first type of tolling to consider is statutory tolling. The limitation period is tolled for the time period during which a properly filed application for post-conviction or other collateral review is pending in state court. See 28 U.S.C. § 2244(d)(2). Section 2244(d)(2) does not "revive" the limitation period once it has run (i.e., restart the clock to zero); it can only serve to pause a time period that has not yet expired. "Once the limitations period is expired, collateral petitions can no longer serve to avoid the statute of limitations." Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998). Nguyen is not entitled to any statutory tolling for the time his state habeas petitions were pending because his first state habeas petition was not filed until after the one year deadline had passed, i.e., the deadline to get to federal court was July 15, 1998 and he did not file his state first state petition until April 30, 1999. He also is not entitled to tolling during the time between the conclusion of the direct appeal process and the filing of his first state habeas petition. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).
Nguyen also receives no statutory tolling for the fifteen days his first federal petition was pending in the U.S. District Court for the Eastern District of California. The statute of limitations simply cannot be read to allow tolling for the pendency of a federal petition. See Jiminez v. Rice, 222 F.3d 1210, 1214 (9th Cir. 2000).
The second type of tolling to consider is equitable tolling. Equitable tolling of the limitation period is available upon a showing of extraordinary circumstances beyond a petitioner's control, see, e.g., Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (equitable tolling will not be available in most cases because extensions of time should only be granted if extraordinary circumstances beyond prisoner's control make it impossible for him to file petition on time), cert. denied, 118 S.Ct. 988, and cert. denied, 118 S.Ct. 1389 (1998), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 119 S.Ct. 1377 (1999). The court cannot arbitrarily pick a number of days or weeks to toll based on some generalized problem or difficulty a petitioner has encountered. Rather, equitable tolling depends on a specific showing by a petitioner that a particular problem prevented him from meeting the deadline for a particular amount of time. At a minimum, the problem or difficulty must have occurred when the limitation period was otherwise running. Nguyen contends that he is entitled to tolling because he allegedly did not speak English well and it took time to find an inmate to assist him. These are not extraordinary circumstances warranting equitable tolling. Cf. Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy of pro se petitioner not sufficient to meet standard of an objective, external factor amounting to "cause" for purposes of avoiding procedural bar on habeas claims); see also Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (mental condition of pro se petitioner and reliance upon allegedly incompetent jailhouse lawyers did not constitute "cause"). Equitable tolling might be available upon a showing of actual innocence that would result in manifest injustice, see e.g., Schlup v. Delo, 513 U.S. 298, 329 (1995) (petitioner must persuade district court that, in light of new evidence, no juror, acting reasonably, would have voted him guilty beyond a reasonable doubt), but the court need not decide whether tolling is available in such a case because this case does not present such a scenario. Nguyen is not entitled to any equitable tolling. Thus, his petition was inexcusably late and is barred by 28 U.S.C. § 2244(d)(1).
CONCLUSION
Nguyen's federal habeas petition was filed over a year and a half after the deadline imposed by 28 U.S.C. § 2244(d). It was untimely. Accordingly, respondent's motion to dismiss the petition as untimely is GRANTED. The petition is dismissed. The clerk shall close the file.
IT IS SO ORDERED.