Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable S. James Otero, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
RELEVANT PROCEEDINGS
On May 11, 2015, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" ("Petition"), bearing a signature date of April 24, 2015, and accompanied by memorandum of points and authorities ("Petition Memo"). On September 9, 2015, Respondent filed a "Motion to Dismiss Petition, etc." ("Motion to Dismiss"), asserting that the Petition names the wrong respondent, contains unexhausted claims, and is untimely. On October 15, 2015, Petitioner filed a "Motion in Opposition by Way of Traverse, etc." ("Opposition").
BACKGROUND
On or about December 8, 2009, a Ventura County Superior Court jury found Petitioner guilty of attempted murder and assault with a semi-automatic firearm, and found true allegations that Petitioner personally used and discharged a firearm (Petition, p. 2; Respondent's Lodgment 2, p. 2). The Superior Court imposed a sentence of 27 years in state prison (Petition, p. 2; Respondent's Lodgment 2, p. 2).
On February 28, 2011, the California Court of Appeal affirmed the judgment in a reasoned decision, denying Petitioner's claims that: (1) the trial court allegedly erred in instructing the jury regarding attempted murder; and (2) there assertedly was insufficient evidence of an intent to kill because the evidence allegedly established that the shooter fired gunshots from a distance at nighttime. See Respondent's Lodgment 2, pp. 3-5. Petitioner did not file a petition for review in the California Supreme Court (Petition, p. 3). Petitioner alleges that his counsel "refused to seek full review" on Petitioner's behalf (id.).
On April 26, 2012, Petitioner filed a habeas corpus petition in the Ventura County Superior Court, bearing a signature and service date of April 24, 2012 (Respondent's Lodgment 3). Therein, Petitioner raised a single claim that the court-ordered "fees, fines and restitution" were excessive (id.). Petitioner cited 15 cases in support of this claim (id., p. 3). The Ventura County Superior Court denied the petition on May 2, 2012 (Respondent's Lodgment 4).
More than two years later, on October 24, 2014, Petitioner filed a second habeas corpus petition in the Ventura County Superior Court, bearing a signature and service date of October 19, 2014 (Respondent's Lodgment 5). Therein, Petitioner claimed: (1) his upper term sentence assertedly violated, inter alia, Blakely v. Washington, 542 U.S. 296, 301 (2004) ("Blakely"), and allegedly is cruel and unusual; and (2) his appellate counsel was ineffective in multiple respects, including failing to petition the California Supreme Court for review, allegedly failing to advise Petitioner how to proceed when counsel withdrew from representation, allegedly failing timely to return Petitioner's files, and allegedly failing to provide Petitioner with unspecified mitigating evidence or to investigate and raise potential habeas corpus claims. Petitioner acknowledged that he was aware of his sentence at the time of sentencing, but claimed he did not know "the full facts of sentencing" until his files were sent to him (Respondent's Lodgment 5, p. 12). Petitioner asserted that he did not know "the full facts" before he obtained his transcripts (id.). Petitioner further alleged that he had limited access to the law library and no outside support (id.).
Petitioner did not then allege that any supposed language issues inhibited him from filing his claims earlier (id., pp. 12-13). To the contrary, Petitioner verified the October, 2014 petition, stating that he had "read the foregoing Petition of Habeas Corpus" (which was entirely in English), and declaring under penalty of perjury that the factual allegations were "true and correct" (id., p. 13). Petitioner did not indicate that he had, or that he supposedly required, any assistance in filing his petition (id.). On October 27, 2014, the Ventura County Superior Court denied the second petition on the merits (Respondent's Lodgment 6).
On November 20, 2014, Petitioner filed a habeas corpus petition in the California Court of Appeal, bearing a signature and service date of November 3, 2014 (Respondent's Lodgment 7). Therein, Petitioner raised the same claims he raised in his second habeas petition to the Ventura County Superior Court and provided the same verification. Again, Petitioner did not allege that he had any language problems (Respondent's Lodgment 7). The California Court of Appeal denied the petition on November 26, 2014, citing Strickland v. Washington, 466 U.S. 668, 693-94 (1984) and People v. Duvall, 9 Cal.4th 464, 474-75, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995) (Respondent's Lodgment 8).
The citation to People v. Duvall indicates a denial for failure to "state fully and with particularly the facts on which relief is sought." People v. Duvall, 9 Cal.4th at 474; see Gaston v. Palmer, 417 F.3d 1030, 1036-37 (9th Cir. 2005), modified, 447 F.3d 1165 (9th Cir. 2006), cert. denied, 549 U.S. 1134 (2007); In re Reno, 55 Cal.4th 428, 482, 146 Cal.Rptr.3d 297, 283 P.3d 1181 (2012), cert. denied, 133 S.Ct. 2345 (2013).
On December 17, 2014, Petitioner filed a habeas corpus petition in the California Supreme Court, bearing a signature and service date of December 9, 2014 (Respondent's Lodgment 9). Therein, Petitioner raised the following claims: (1) his upper term sentence assertedly violated, inter alia, Blakely, and allegedly is cruel and unusual; (2) the lower courts' failure to appoint a Spanish interpreter and/or bilingual counsel for Petitioner assertedly denied Petitioner due process and the effective assistance of counsel; (3) trial counsel was ineffective for allegedly failing to: (a) bring to the court's attention Petitioner's supposed language barrier, request an interpreter, and communicate effectively with Petitioner; (b) interview unnamed alibi witnesses; (c) investigate an allegation that Petitioner was being interviewed by police about the vandalism to his family's cars when a "shot fired" call came over the deputy's radio; and (d) offer a "reasonable" defense on Petitioner's behalf; (4) there assertedly was insufficient evidence regarding the identity of the shooter or even whether a shooting took place; (5) the trial court erred in instructing the jury regarding attempted murder; and (6) appellate counsel was ineffective for allegedly failing to: (a) introduce unspecified mitigating evidence; (b) return Petitioner's files until after the time for seeking review in the California Supreme Court; (c) communicate with Petitioner in Spanish; and (d) meet "timelines." See Respondent's Lodgment 9, pp. 9-26. Petitioner argued that the "statute of limitations" should be equitably tolled because he supposedly does not understand English and was not appointed an interpreter, his appellate counsel assertedly withdrew without explaining to Petitioner how to proceed, and his appellate counsel allegedly failed timely to return the files to Petitioner. Petitioner cited, inter alia, Doe v. Busby, 661 F.3d 1001, 1012-15 (9th Cir. 2011) (petitioner held entitled to equitable tolling where counsel was hired and paid to file a timely federal habeas petition, and specifically promised to file such a petition, but failed to do so despite numerous inquiries from the petitioner) (Respondent's Lodgment 9, pp. 23-24). Petitioner verified the petition, indicating that the petition had been read to him in Spanish (id., p. 27). The California Supreme Court summarily denied the petition on March 11, 2015 (Respondent's Lodgment 10).
The California Supreme Court's summary denial of Petitioner's habeas petition is presumed to have been on the merits. See Harrington v. Richter, 562 U.S. 86, 99 (2011); Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir. 1992), cert. denied, 510 U.S. 887 (1993).
On August 13, 2015, Petitioner filed a second habeas corpus petition in the California Supreme Court, bearing a signature and service date of August 4, 2015 (Respondent's Lodgment 11). Therein, Petitioner claimed: (1) his trial and/or appellate counsel provided ineffective assistance due to the alleged language barrier between counsel and Petitioner, by failing to request a translator, and by appellate counsel's failure to petition the California Supreme Court for review or to file a habeas petition; and (2) his sentence of 20 years "just on enhancements" allegedly is unconstitutional (id.). Petitioner verified this petition, stating that it had been written and translated for him from English into Spanish (id., p. 11). On November 10, 2015, the California Supreme Court denied the petition with citations to In re Robbins, 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998) and In re Clark, 5 Cal.4th 750, 767-69, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) (signifying that the petition was untimely and/or successive). The Court takes judicial notice of the California Supreme Court's docket, available on the California Courts' website at appellatecases.courtinfo.ca.gov (last visited Nov. 12, 2015). See Porter v. Ollison, 620 F.3d 952, 954-55 n.1 (9th Cir. 2010) (taking judicial notice of court dockets).
See Walker v. Martin, 562 U.S. 307, 310 (2011); Lee v. Jacquez, 788 F.3d 1124, 1129 (9th Cir. 2015) ("California courts will generally deny untimely petitions by citing to the California Supreme Court decisions of In re Clark... and In re Robbins...."); see also In re Clark, 5 Cal.4th at 767 ("It has long been the rule that absent a change in the applicable law or the facts, the court will not consider repeated applications for habeas corpus presenting claims previously rejected.") (citations omitted).
FACTUAL BACKGROUND
The following summary is taken from the opinion of the California Court of Appeal in People v. Ramos, 193 Cal.App.4th 43, 122 Cal.Rptr.3d 49 (2011). See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision).
In the late evening of May 18, 2008, Maria Ramos heard noises outside the family home in Ojai and saw a gray or black-colored truck. She walked outside and noticed that the windows in two of the family's vehicles had been broken. Ramos awoke her family members and then reported the vandalism to law enforcement.
After 2:00 a.m. that morning, William Kyle Hoffman escorted guests outside following a party at his Short Street residence in Oak View. He saw two vehicles parked on the opposite side of the street. He then heard gunshots "whistling" past him. He ran down the street and jumped a neighbor's backyard gate. In all, he heard seven gunshots but did not see the person firing the weapon or the weapon. The vehicles "screech[ed] away" afterwards.
Hoffman owned a gray-colored pickup truck that was parked near his home. Sheriff's deputies later found seven.22 caliber shell casings nearby. A neighbor's vehicle sustained window damage from the gunshots.
Jessica Manning was present in the Ramos home that evening. She later informed sheriff's deputies that the three Ramos brothers, including Sergio, left the home after the vandalism to the family vehicles. When they returned, Sergio stated that he had "posted up in Oak View" and shot seven times. Deputies recorded Manning's interview and the prosecutor played the recording at trial. Manning testified at trial, however, that she lied to deputies to protect her boyfriend, Jose Ramos.
On June 19, 2008, sheriff's deputies interviewed Jose Ramos. He stated that Sergio drove to Short Street and fired a gun five or six times toward a silver pickup truck similar to the truck involved in the vandalism. At trial, Jose recanted his statements.
In March 2009, sheriff's deputies arrested Jose Lopez for possession of a firearm. Lopez stated that Sergio Ramos borrowed the weapon from him in May 2008. A firearms examiner tested the firearm and concluded that it fired the shell casings found near Hoffman's Short Street residence.
(Respondent's Lodgment 2, pp. 1-2; see People v. Ramos, 193 Cal.App.4th at 45-46).
PETITIONER'S CONTENTIONS
1. The trial court allegedly erred by instructing the jury regarding attempted murder (Ground One; Petition Memo, pp. 12-15);
2. Petitioner's upper term sentence allegedly violates Blakely and amounts to cruel and unusual punishment (Ground Two; see also Petition Memo, pp. 4-8);
3. Petitioner's counsel allegedly rendered ineffective assistance by assertedly failing to: present all mitigating evidence on Petitioner's behalf; interview alibi witnesses; and establish comprehensible communication with Petitioner or to request a Spanish interpreter either during trial or on appeal (Ground Three; Petition Memo, pp. 9-11); and
4. There assertedly was insufficient evidence to establish the identity of the shooter or whether a shooting took place (Ground Four; Petition Memo, pp. 12-16).
Petitioner's Memorandum of Points and Authorities filed herein duplicates the arguments he presented to the California Supreme Court in Respondent's Lodgment 9, which that court denied summarily (Respondent's Lodgment 10).
In light of the untimeliness of the Petition, the Court need not and does not reach Respondent's additional arguments for dismissing the Petition. See Perez v. Hartley, 2013 WL 4208280, at *3 n.7 (C.D. Cal. Aug. 14, 2013) (court need not determine whether the petitioner's claims are unexhausted when those claims are untimely).
The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
"AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis." Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).
Petitioner's conviction became final on April 9, 2011, upon the expiration of forty days from the California Court of Appeal's February 28, 2011 affirmance on direct review. See Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008), cert. denied, 559 U.S. 1111 (2010); see also Cal. R. Ct. 8.366(b)(1), 8.500(e)(1). Therefore, the statute of limitations commenced running on April 10, 2011, unless subsections B, C or D of 28 U.S.C. section 2244(d)(1) apply in the present case. See 28 U.S.C. § 2244(d)(1)(A); Porter v. Ollison, 620 F.3d at 958 (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).
Subsection 2244(d)(1)(B)
Petitioner contends that several alleged impediments purportedly prevented him from filing a timely federal petition. To warrant delayed accrual based on an "impediment to filing... created by State action, " a petitioner must show a causal connection between the unlawful state impediment and his or her failure to file a timely petition. Bryant v. Arizona Atty. General, 499 F.3d 1056, 1059-60 (9th Cir. 2007) (citations omitted). A petitioner "must satisfy a far higher bar than that for equitable tolling." Ramirez v. Yates, 571 F.3d 993, 1000 (9th Cir. 2009). A petitioner is entitled to delayed accrual under subsection (d)(1)(B) only if the impediment "altogether prevented him from presenting his claims in any form, to any court." Id. at 1001 (emphasis original; citation omitted).
Petitioner contends that his counsel on direct appeal withdrew and did not give counsel's file to Petitioner promptly. See Petition Memo, p. 17. Any supposed failures by Petitioner's appellate counsel could not entitle Petitioner to delayed accrual under section 2244(d)(1)(B). Section 2244(b)(1)(B) requires a state-created impediment; the purported actions or omissions of Petitioner's counsel are not attributable to the state. See Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005), aff'd on other grounds, 549 U.S. 327 (2007) (rejecting argument that the state created an impediment by providing incompetent counsel; "[t]his is not the type of State impediment envisioned in § 2244(d)(1)(B)"); Ibarra v. Ground, 2012 WL 3259898, at *3 (C.D. Cal. July 9, 2012), adopted, 2012 WL 3257883 (C.D. Cal. Aug.8, 2012) ("the actions of petitioner's appellate counsel cannot be imputed to the state for purposes of extending the limitations period under § 2244(d)(1)(B)"); Lopez v. On Habeas Corpus, 2010 WL 2991689, at *4 (E.D. Cal. July 29, 2010) (state-appointed attorney cannot create an "impediment" by the state within the meaning of section 2244(d)(1)(B)); Leyva v. Yates, 2010 WL 2384933, at *2 n.4 (C.D. Cal. May 7, 2010), adopted, 2010 WL 2522705 (C.D. Cal. June 9, 2010) (same).
Petitioner also may argue that an alleged lack of access to the law library, legal materials, inmate assistance, and a Spanish language interpreter during Petitioner's incarceration purportedly constituted a state-created impediment warranting delayed accrual. State prison officials' conduct that interferes with an inmate's ability to prepare and file a habeas petition by denying access to legal materials sometimes may amount to a "state-created impediment" under subsection B. See Shannon v. Newland, 410 F.3d 1083, 1087-99 (9th Cir. 2005), cert. denied, 546 U.S. 1171 (2006) (citations omitted). Here, however, Petitioner was able to file his state habeas petitions (years before he filed his federal petition) notwithstanding those alleged impediments. Petitioner's ability to file his state habeas petitions notwithstanding the alleged impediments undermines any argument that a state-created impediment prevented him from filing a federal habeas petition. See Felix v. Baker, 589 Fed.App'x 382, 383 (9th Cir. 2015) (petitioner's ability to file a state habeas petition while the alleged state impediment of a lack of Spanish-language legal materials or translation assistance was in place undermined his argument that the impediment prevented him from filing a timely federal habeas petition); Alvarado v. Beard, 2015 WL 3466273, at *3 (C.D. Cal. Mar. 2, 2015), adopted, 2015 WL 3469235 (C.D. Cal. May 29, 2015) (same). Additionally, contrary to any suggestion that Petitioner lacked necessary access or resources, Petitioner alleges that he has been conducting an "ongoing bonafide investigation of [his] potential but undeveloped claims throughout the period in question" (Opposition, p. 18).
As noted above, Petitioner did not assert in his habeas petitions with the lower California courts that he lacked or needed assistance or had any language barriers. To the contrary, Petitioner verified under penalty of perjury that he had read his petitions and the information contained therein was true. See Respondent's Lodgments 5, 7.
Petitioner has failed to show any entitlement to delayed accrual under section 2244(d)(1)(B).
Subsection 2244(d)(1)(C)
Subsection C of section 2244(d)(1) is also inapplicable. Petitioner does not assert any claim based on a constitutional right "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." See Dodd v. United States, 545 U.S. 353, 360 (2005) (construing identical language in section 2255 as expressing "clear" congressional intent that delayed accrual inapplicable unless the United States Supreme Court itself has made the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) (for purposes of second or successive motions under 28 U.S.C. section 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds the new rule to be retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989), to analysis of delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)).
Although Petitioner asserts a claim based on Blakely: (1) Blakely was decided five years before Petitioner's conviction and thus was not a new rule of law in Petitioner's case; and (2) the United States Supreme Court has not held Blakely to be retroactive. See Pickett v. Hall, 357 Fed.App'x 902, 903 (9th Cir. 2009), cert. denied, 560 U.S. 912 (2010) (no delayed accrual for Blakely claim); Pettijohn v. Bartos, 248 Fed.App'x 845, 846 (9th Cir. 2007), cert. denied, 553 U.S. 1056 (2008) (delayed accrual inappropriate "because the Supreme Court has not held that Blakely is retroactively applicable to cases on collateral review").
Subsection 2244(d)(1)(D)
Under section 2244(d)(1)(D), the "due diligence' clock starts ticking when a person knows or through diligence could discover the vital facts, regardless of when their legal significance is actually discovered." Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir.), cert. denied, 133 S.Ct. 769 (2012); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001); see also United States v. Pollard, 416 F.3d 48, 55 (D.D.C. 2005), cert. denied, 547 U.S. 1021 (2006) (habeas petitioner's alleged "ignorance of the law until an illuminating conversation with an attorney or fellow prisoner" does not satisfy the requirements of section 2244(d)(1)(D)).
Petitioner alleges that a supposed lack of access to the law library, legal materials, legal files, and his lay status and alleged language barriers purportedly impeded Petitioner from discovering the factual predicates for his claims. However, the record reflects that Petitioner knew or should have known the factual bases for his claims no later than the date his conviction became final.
Petitioner knew or should have known the "vital facts" concerning the trial court's jury instructions no later than the date of his conviction - December 8, 2009 - when the jury had been instructed and rendered its verdict. Petitioner knew or should have known the "vital facts" concerning his sentence no later than December 8, 2009, which was also the date of his sentencing. Petitioner knew or should have known the "vital facts" concerning his sufficiency of the evidence claims at the close of the evidence. Petitioner knew or should have known the "vital facts" concerning his ineffective assistance of counsel claims by the time his conviction became final. Petitioner's alleged ignorance of the legal significance of any of the "vital facts" concerning his claims is legally irrelevant. See id.
For the foregoing reasons, Petitioner is not entitled to delayed accrual under section 2244(d)(1)(D). Accordingly, the statute of limitations began running on April 10, 2011, and, absent sufficient tolling or an equitable exception, expired on April 9, 2012. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner constructively filed the Petition in this case over three years later, on April 24, 2015. Absent sufficient tolling or an equitable exception, the Petition is untimely.
The Court assumes arguendo that Petitioner filed the Petition on its signature date of April 24, 2015. See Houston v. Lack, 487 U.S. 266, 271-76 (1988) (discussing prison mailbox rule); see also Porter v. Ollison, 620 F.3d at 958 (prison mailbox rule applies to federal habeas petitions).
Statutory Tolling
Section 2244(d)(2) tolls the statute of limitations during the pendency of "a properly filed application for State post-conviction or other collateral review." The statute of limitations is not tolled between the conviction's finality and the filing of Petitioner's first state court habeas petition. See Porter v. Ollison, 620 F.3d at 958. Here, Petitioner constructively filed his first state court habeas corpus petition on April 24, 2012, after the expiration of the statute of limitations. Petitioner's belatedly-filed state court habeas petitions cannot revive or otherwise toll the statute. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas petition "well after the AEDPA statute of limitations ended" does not affect the limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) ("[a] state-court petition... that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled").
Equitable Tolling
AEDPA's statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010) (citations omitted). "[A] petitioner' is entitled to equitable tolling' only if he shows (1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Lawrence v. Florida, 549 U.S. 327, 336 (2007). The threshold necessary to trigger equitable tolling "is very high, lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 558 U.S. 897 (2009) (citations and internal quotations omitted). Petitioner bears the burden to show equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009). Petitioner must show that the alleged "extraordinary circumstances" were the "cause of his untimeliness." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006), cert. denied, 549 U.S. 1317 (2007) (brackets in original; quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)). Here, Petitioner has made no such showing.
Petitioner has not shown that counsel's representation on direct appeal, counsel's failure to file a petition for review or counsel's alleged failure to return Petitioner's legal files promptly were "extraordinary circumstances" that were the cause of Petitioner's untimeliness. See Randle v. Crawford, 604 F.3d 1047, 1057-58 (9th Cir. 2009), cert. denied, 562 U.S. 969 (2010) ((1) counsel's alleged failure to perfect a timely appeal meant that petitioner had one year from expiration of his time to file a notice of appeal in which to initiate federal habeas action - it did not prevent petitioner from filing the petition; and (2) counsel's alleged failure to provide petitioner with his case file before the expiration of the statute of limitations was not an "extraordinary circumstance, " where the petitioner did not allege that counsel's delay prevented the petitioner from timely filing his federal habeas petition - from the record it appeared that the petitioner was seeking his file in order to file a state habeas petition and the petitioner delayed in seeking the file) (distinguishing Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003); see also Tibbs v. Adams 441 Fed.App'x 443, 444 (9th Cir. 2011), cert. denied, 132 S.Ct. 1061 (2012) (assuming attorney misconduct, counsel's actions did not prevent petitioner from timely filing a federal petition; although counsel possessed petitioner's legal file through the limitations period, there was no indication that had petitioner received his file sooner he would have filed a timely federal habeas petition).
Any alleged failings by counsel prior to or at the time counsel withdrew from representation also do not constitute an "extraordinary circumstance" warranting equitable tolling. See Holland v. Florida, 560 U.S. at 651-52 (a "garden variety claim of excusable neglect" does not merit equitable tolling); Miranda v. Castro, 292 F.3d 1063, 1067-68 (9th Cir.), cert. denied, 537 U.S. 1003 (2002) (prisoners have no right to assistance from their direct review appellate counsel regarding potential habeas proceedings); Guzman v. Miller, 2014 WL 4105083, at *4 (C.D. Cal. Aug. 14, 2014) (finding that appellate counsel's failure to advise of deadline to file for federal habeas relief did not warrant equitable tolling, "since Petitioner has no right to counsel in [federal habeas proceedings], and nothing prevented him from exercising due diligence to ascertain the AEDPA deadline on his own"). Counsel did not have an obligation to inform Petitioner regarding the federal statute of limitation. See Collins v. Soto, 2015 WL 1291783, at *4 (C.D. Cal. Mar. 18, 2015) (denying equitable tolling where state appellate attorney did not inform petitioner of the federal statute of limitation); Apilando v. Hawaii, 2012 WL 4715163, at *5 (D. Haw. Oct. 2, 2012) (holding state post-conviction counsel had no duty to "notify Petitioner regarding possible claims and limitation dates for filing a federal habeas corpus petition" and denying equitable tolling). Indeed, Petitioner's counsel was not retained for the purpose of filing any federal proceeding.
Petitioner's allegations concerning an asserted lack of access to the law library and legal materials also do not suffice to show any extraordinary circumstances which purportedly were the "cause of his untimeliness." See, e.g., Rhodes v. Kramer, 451 Fed.App'x 697, 698 (9th Cir. 2011) (limited library access and lockdowns did not merit equitable tolling); Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (ordinary prison limitations on library access due to confinement in administrative segregation insufficient to show "extraordinary circumstances").
Additionally, Petitioner's pro se status, alleged lack of education and alleged ignorance of the law cannot warrant equitable tolling. See Waldron-Ramsey v. Pacholke, 556 F.3d at 1013 n.4 ("we have held that a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling") (citation omitted); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("we now join our sister circuits and hold that a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance"); see also Petitioner's Affidavit (alleging same).
Petitioner's asserted lack of English proficiency also does not warrant equitable tolling. "[A] combination of (1) a prison law library's lack of Spanish-language legal materials, and (2) a petitioner's inability to obtain translation assistance before the one-year deadline, could constitute extraordinary circumstances entitling that petitioner to equitable tolling." Felix v. Baker, 589 Fed.App'x 382 (9th Cir. 2015) (citing Mendoza v. Carey, 449 F.3d 1065, 1069 (9th Cir. 2006) (internal quotations omitted)). "[A] non-English-speaking petitioner seeking equitable tolling must, at a minimum, demonstrate that during the running of the AEDPA time limitation, he was unable, despite diligent efforts, to procure either legal materials in his own language or translation assistance from an inmate, library personnel, or other source." Mendoza v. Carey, 449 F.3d at 1070. Petitioner has made no such showing. Petitioner was able to file two state habeas petitions in English, without claiming any language deficiency, and to verify under penalty of perjury that he had read the petitions. See Respondent's Lodgments 5, 7.
In any event, Petitioner has made no showing that he was diligent in pursuing his claims. Petitioner plainly was not pursuing his claims diligently during the year after his conviction became final, or during the more than two years after the denial of Petitioner's first state court habeas petition.
The Court further observes that even if the statute of limitations somehow were tolled for the entire period of time between the finality of Petitioner's conviction and the filing of Petitioner's first Superior Court habeas petition, the present Petition still would be untimely. Under that scenario, the statute would have expired during the two year period between the denial of Petitioner's first Superior Court habeas petition and the filing of his second one. See Evans v. Chavis, 546 U.S. 189, 191, 198, 201 (2006); Stancle v. Clay, 692 F.3d 948, 953 (9th Cir. 2012), cert. denied, 133 S.Ct. 1465 (2013).
"Actual Innocence"
"[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar... [or] expiration of the statute of limitations." McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en banc). "[T]enable actual-innocence gateway pleas are rare." McQuiggin v. Perkins, 133 S.Ct. at 1928. The Court must apply the standards for gateway actual innocence claims set forth in Schlup v. Delo, 513 U.S. 298 (1995) ("Schlup"). See McQuiggin v. Perkins, 133 S.Ct. at 1928. "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror [or other trier of fact], acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id . (quoting Schlup, 513 U.S. at 329).
"[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998); Calderon v. Thompson, 523 U.S. 538, 559 (1998); Muth v. Fondren, 676 F.3d 815, 819, 822 (9th Cir.), cert. denied, 133 S.Ct. 292 (2012). In order to make a credible claim of actual innocence, a petitioner must "support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup, 513 U.S. at 324.
In the present case, Petitioner has presented no new reliable evidence of his supposed "actual innocence." Petitioner has alleged that he was being questioned by the police regarding the vandalism at his home when a "shots fired" call purportedly came over a deputy's radio (Petition Memo, p. 11). Petitioner's allegation plainly does not suffice to show "actual innocence" under the Schlup standard. See, e.g., Baran v. Hill, 2010 WL 466153, at *7 (D. Or. Feb. 9, 2010) (finding that the petitioner's self-serving and unsupported statements were not "new and reliable" evidence sufficient to prove actual innocence); McArdle v. Sniff, 2009 WL 1097324, at *3 (C.D. Cal. Apr. 20, 2009) (same). Petitioner's evidence is much weaker than that which the Supreme Court ruled insufficient to show actual innocence in McQuiggin v. Perkins, 133 S.Ct. at 1929-30, 1936 (deeming "hardly adequate" evidence consisting of witness affidavits stating that: (1) another man, Jones, had admitted killing the victim; (2) on the night of the murder Jones was wearing bloodstained clothing; and (3) Jones took bloodstained clothing to the cleaners). The "actual innocence" exception to the statute of limitations is inapplicable. The Petition is untimely.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.