Summary
finding a prisoner who filed a state petition for writ of habeas corpus six months late was not diligently pursuing his claims
Summary of this case from Broadnax v. CateOpinion
Case No. CV 12-1306 RGK (JCG)
03-28-2012
LENNOX WINSTON PINKS, Petitioner, v. C. GIPSON, Warden, Respondent.
ORDER ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE AND
DENYING CERTIFICATE OF
APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.
Petitioner's Objections generally lack merit for the reasons set forth in the Report and Recommendation. There is one issue, however, that warrants brief amplification here.
Petitioner contends that he is entitled to equitable tolling because: (1) he did not have access to his "belongings right away upon" being sent to administrative segregation ("Ad-Seg") at Calipatria State Prison; and (2) he was not able to obtain "Priority Legal User" status after he was placed in Ad-Seg. (Obj. at 3-4.) Petitioner alleges that he was sent to Ad-Seg on June 6, 2010, and did not return to the general prison population until September 28, 2010. (Id. at 3.) AEDPA's limitation period expired on June 28, 2010. (R&R at 4-5.)
Initially, even assuming that Petitioner was without his "belongings" for some period of time upon being placed in Ad-Seg, the Court notes that Petitioner waited over six months after the expiration of AEDPA's limitation period to file his state habeas petition (December 30, 2010), and then waited another seven months after his state habeas petition was denied to file his federal Petition (February 8, 2012). (See R&R at 1-5.) As such, the Court is not persuaded that Petitioner's temporary loss of property was an "extraordinary circumstance" that "cause[d] ... his untimeliness." See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Bryant v. Schriro, 499 F.3d 1056, 1061 (9th Cir. 2007) (emphasis added) (internal quotation marks and citation omitted). Nor can the Court find that Petitioner pursued his rights diligently. Pace, 544 U.S. at 418. Consequently, Petitioner is not entitled to equitable tolling for the temporary loss of his property.
Petitioner does not allege the specific amount of time that he was without his belongings. Instead, he vaguely alleges that he did not "receive his belongings right away upon arriving to ad-seg, and even after initial review[,] receiving one[']s belongings ... will still take weeks and sometimes over a month." (Obj. at 4.)
For the same reasons, the Court also finds that Petitioner is not entitled to equitable tolling based on his inability to obtain "Priority Legal User" status after being placed in Ad-Seg. Petitioner alleges that Priority Legal Users can access the prison law library seven days a week. (Obj. at 4.) At the time Petitioner was placed in Ad-Seg, he only had 22 days left before AEDPA's limitation period expired. (See Obj. at 3; see also R&R at 5.) Thus, Petitioner is essentially complaining about a 22-day period in which he did not have seven-day-a-week library access. Given that Petitioner delayed substantially longer in filing his state and federal habeas petitions (over 13 months combined), the Court rejects such a claim. (See R&R at 1-5.)
In sum, the Court finds that neither the temporary loss of property, nor the inability to obtain Priority Legal User status, was an "extraordinary circumstance" that caused Petitioner to file an untimely Petition. See Pace, 544 U.S. at 418. Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the Petition and dismissing this action with prejudice; and
3. The Clerk serve copies of this Order on the parties.
Additionally, for the reasons stated in the Report and Recommendation, the
Court finds that Petitioner has not shown that "jurists of reason would find it debatable whether": (1) "the petition states a valid claim of the denial of a constitutional right"; and (2) "the district court was correct in its procedural ruling." See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, the Court declines to issue a certificate of appealability.
In his Objections, Petitioner also requests the appointment of counsel on the grounds that he is indigent and "due to his lack of knowledge towards the law." (Obj. at 1, 5.) Such circumstances do not warrant the appointment of counsel in a federal habeas action - the Request is DENIED. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) ("Indigent state prisoners applying for habeas corpus relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations.").
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______________________
HON. R. GARY KLAUSNER
UNITED STATES DISTRICT JUDGE