Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable John A. Kronstadt, 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.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on November 19, 2014, bearing a service date of November 12, 2014, and accompanied by a supporting memorandum ("Pet. Mem.") and exhibits ("Pet. Ex."). On December 8, 2014, Petitioner filed a "Motion to Correct Exhibits." On December 15, 2014, Respondent filed a Motion to Dismiss, contending that the Petition is untimely. On January 9, 2015, Petitioner filed an Opposition to the Motion to Dismiss.
The Opposition does not bear page numbers. The Court has supplied the page numbers.
PROCEDURAL BACKGROUND
An Information filed March 7, 1996, in the San Bernardino Superior Court charged Petitioner and co-defendant Stuart Utley with one count of first degree murder committed on or about September 9, 1995, in violation of California Penal Code section 187(a) (Clerk's Transcript ["C.T."] 13-14). The Information also alleged the special circumstances that Petitioner and Utley committed the murder during a burglary and during a robbery, within the meaning of California Penal Code section 190.2(a)(17) (C.T. 13-14). The Information further charged Petitioner and Utley with one count of first degree burglary in violation of California Penal Code section 459, the unlawful taking or driving of a vehicle in violation of California Penal Code section 10851(a), and first degree residential robbery in violation of California Penal Code section 211 (C.T. 14-15). Petitioner assertedly was fourteen years old at the time of the crimes (Pet. Mem., p. 11)
On July 22, 1997, Petitioner, then sixteen years old, pled guilty to one count of first degree murder pursuant to a plea agreement providing that the court would strike the special circumstance allegations, dismiss the remaining counts and consider housing Petitioner at juvenile hall or the California Youth Authority, if eligible (Pet. Ex. E, second document, & Ex. L; Respondent's Lodgment 2). In connection with the plea proceedings, Petitioner and his counsel both signed a "Declaration by Defendant" indicating Petitioner's desire to plead guilty to first degree murder (Respondent's Lodgment 2). Petitioner initialed the box next to the statement: "I understand that the maximum punishments I could receive for each crime are, " followed by the handwritten notations: "P.C. 187 1st DEGREE MURDER" and, underneath the words "MAXIMUM PRISON/JAIL COMMITMENTS, " the handwritten words: "25 YEARS TO LIFE" (Respondent's Lodgment 2). Petitioner also initialed the box next to the statement that Petitioner was "freely and voluntarily" entering his plea because the court and the prosecutor had agreed to strike the special allegations, dismiss the remaining counts, and consider housing Petitioner at juvenile hall or the California Youth Authority, if eligible (Respondent's Lodgment 2). Petitioner initialed the box next to the statement: "I have personally placed my initials on certain boxes on this declaration to signify that I fully understand and adopt as my own each of the statements which correspond to those boxes" (Respondent's Lodgment 2).
On September 2, 1997, Petitioner assertedly wrote a letter to the sentencing judge stating, among other things, that Petitioner accepted the plea bargain "because it was the best [Petitioner] could get and because once again [Petitioner] thought it would help [Utley], who could have gotten LWOP [life without the possibility of parole]" (Pet. Ex. A).
On October 3, 1997, the court sentenced Petitioner to a term of 25 years to life (Petition, p. 2; C.T. 17).
More than fourteen years later, on January 12, 2012, Petitioner filed a "Motion for Transcripts, etc." in the San Bernardino County Superior Court (Pet. Ex. H, second document). The Superior Court denied the motion on January 18, 2012 (Pet. Ex. H, first document; Respondent's Lodgment 6, Attachment 2).
On May 31, 2012, Petitioner filed a habeas corpus petition in the San Bernardino Superior Court, bearing a signature date of May 16, 2012 (Respondent's Lodgment 4). On June 25, 2012, the Superior Court denied the motion as untimely, with citations to In re Robbins, 18 Cal.4th 770, 780-81, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998), and In re Harris, 5 Cal.4th 813, 841, 21 Cal.Rptr.2d 373, 855 P.2d 391 (1993) (Pet. Ex. K, third document; Respondent's Lodgment 9). Petitioner filed a motion for reconsideration in the Superior Court on August 8, 2012 (Respondent's Lodgment 6). The Superior Court denied the motion for reconsideration on August 13, 2012 (Respondent's Lodgment 7).
On October 4, 2012, Petitioner filed a habeas corpus petition in the California Court of Appeal (Respondent's Lodgment 8). On October 17, 2012, the Court of Appeal denied the petition summarily (Respondent's Lodgment 5).
On October 17, 2012, Petitioner filed a "Motion to Vacate Void Judgment Under FRCiP Rule 60(b)(4) [sic]" in the San Bernardino County Superior Court, bearing a service date of September 26, 2012 (CT 19-68). The Superior Court denied the motion on October 23, 2012, on the ground that the Superior Court no longer had jurisdiction over the case (C.T. 73). On November 26, 2012, Petitioner filed a Notice of Appeal from the denial of the "Motion to Vacate, etc." (C.T. 71-74). The California Court of Appeal dismissed the appeal on February 11, 2013 (Respondent's Lodgment 11).
On December 3, 2012, Petitioner filed a second petition for habeas corpus and/or a motion to vacate the judgment in the Court of Appeal (Respondent's Lodgment 10). The Court of Appeal denied the petition summarily on December 12, 2012 (Respondent's Lodgment 10).
Petitioner filed a habeas corpus petition in the California Supreme Court on December 6, 2012 (Respondent's Lodgment 12). On August 14, 2013, the California Supreme Court denied the petition "on the merits" with citations to Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 785 (2011), and Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (Respondent's Lodgment 14).
PETITIONER'S CONTENTIONS
In interrelated claims asserted in Grounds One, Two and Three, Petitioner seeks to challenge his plea on the theory that the trial court, the prosecutor and/or Petitioner's counsel allegedly misadvised Petitioner that Petitioner was facing a maximum possible sentence of life without the possibility of parole ("LWOP"). According to Petitioner, he could not have received an LWOP sentence because he was only fourteen years old at the time of the offense.
In Grounds One, Two and Three, Petitioner contends:
1. Trial counsel allegedly rendered ineffective assistance by assertedly failing to investigate Petitioner's maximum possible sentence; the trial court, the prosecutor and Petitioner's counsel allegedly misadvised Petitioner regarding the maximum possible sentence and thereby assertedly coerced Petitioner into accepting the plea bargain (Ground One) (Petition, p. 5; Pet. Mem., pp. 8-15);
In a seemingly contradictory allegation, however, Petitioner also alleges that Petitioner's counsel sent the prosecutor a memorandum containing counsel's research and conclusion that Petitioner was not subject to the special circumstances allegations due to Petitioner's age (see Pet. Mem., pp. 19-20; Pet. Ex. P; Opposition, p. 2 & Ex. 1-B). Petitioner's counsel also allegedly prepared a motion to strike the special circumstances allegations on the ground that Petitioner's age at the time of the offense allegedly rendered Petitioner ineligible for a special circumstances allegation and an LWOP sentence (Opposition, Ex. 1-A). It is unclear whether counsel filed this motion to strike. The document upon which Petitioner relies bears no court file stamp and the copy of the Clerk's Transcript lodged by Respondent contains no reference to this motion.
2. Trial counsel allegedly "committed fraud and withheld Brady material" concerning the maximum possible sentence; counsel assertedly coerced Petitioner to accept a "package deal" with Petitioner's co-defendant (Ground Two) (Petition, pp. 5-6; Pet. Mem., pp. 16-18); and
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held that the prosecution's suppression of evidence favorable to an accused violates due process "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." However, Brady v. Maryland "does not apply to actions of defense counsel." Shivers v. Lindamood, 2006 WL 3228619, at *3 (M.D. Tenn. Nov. 6, 2006)
3. Trial counsel and the prosecutor allegedly conspired to withhold "Brady material" concerning the maximum possible sentence (Ground Three) (Petition, p. 6; Pet. Mem., pp. 19-22).
Petitioner also asserts three other grounds for relief:
The form Petition contains no Ground Five. The Court adheres to the numbering of the grounds contained in Petitioner's supporting memorandum.
4. The trial court allegedly erred in denying Petitioner a "copy of the entire proceedings" for use on appeal; trial counsel allegedly failed to provide transcripts to Petitioner (Ground Four) (Petition, p. 6; Pet. Mem., pp. 23-27);
5. The trial judge allegedly "became overly involved in plea negotiations" (Ground Five) (Petition, p. 6(a); Pet. Mem., pp. 28-31); and
6. The state courts allegedly violated due process, by assertedly misapplying state law concerning a void or invalid judgment and misapplying state law concerning the timeliness of the state court petitions (Ground Six) (Pet. Mem., pp. 32-36).
Ground Six does not state a claim for federal habeas relief. Federal habeas relief is unavailable for state law error. See Wilson v. Corcoran, 562 U.S. 1, 131 S.Ct. 13, 16 (2010) ("We have repeatedly held that federal habeas corpus relief does not lie for errors of state law") (citations and internal quotations omitted); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), cert. denied, 522 U.S. 881 (1997) (habeas petitioner may not "transform a state-law issue into a federal one merely by asserting a violation of due process."). Furthermore, "federal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings." Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998), cert. denied, 526 U.S. 1123 (1999); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.), cert. denied, 493 U.S. 1012 (1989) ("a petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings"). Accordingly, the Court need not determine the timeliness of the claim alleged in Ground Six. The Court observes, however, that all of the state court rulings of which Petitioner complains preceded the filing of the present Petition by more than one year.
DISCUSSION
I. Introduction
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).
Although Petitioner committed the crime prior to AEDPA's effective date, AEDPA applies "to all habeas petitions filed after its effective date." Maciel v. Cate, 731 F.3d 928, 932 (9th Cir. 2013), cert. denied, 135 S.Ct. 72 (2014) (citing Lindh v. Murphy, 521 U.S. 320, 322-23 (1997)).
II. Finality of Petitioner's Conviction
Because Petitioner did not appeal, his conviction became final sixty days from the date of sentencing, i.e., December 2, 1997. See Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006); former Cal. Ct. R. 31(d). The statute of limitations commenced running on December 3, 1997, 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 952, 958 (9th Cir. 2010) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).
Effective January 1, 2004, the substance of former California Rule of Court 31(d) concerning the time for filing a notice of appeal in criminal cases was moved to former Rule 30.1. As of January 1, 2007, California Rule of Court 8.308(a) superseded former California Rule of Court 30.1 with regard to appeals in criminal cases.
III. Delayed Accrual
Petitioner contends he is entitled to delayed accrual pursuant to section 2244(d)(1)(D) because the prosecutor and Petitioner's counsel assertedly deliberately withheld the information that Petitioner allegedly was not facing an LWOP sentence (Opposition, p. 2). Because Petitioner faults the prosecutor as well as his own counsel, the Court will analyze Petitioner's contention under both 2244(d)(1)(B) and 2244(d)(1)(D).
To warrant delayed accrual on account of a "state impediment" under section 2255(d)(1)(B), a petitioner must show a causal connection between the unlawful 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 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 asserts he did not learn of the correct maximum possible sentence until March of 2013, when Petitioner's family supposedly obtained copies of a memorandum written by Petitioner's counsel to the prosecutor and a motion to strike the special circumstances allegations which Petitioner's counsel prepared (Opposition, p. 2 & Exs. 1-A and 1-B thereto).
According to an unsworn statement of Charlotte Finn, Utley's mother and Petitioner's aunt, Finn had found documents in a dumpster in Joshua Tree, California, had put them into a closet, and had not given the documents to Finn's niece until March of 2013 (Motion to Correct Exhibits, Ex. 3).
To the extent Petitioner alleges a purported "impediment" supposedly caused by Petitioner's counsel, Petitioner is not entitled to delayed accrual under section 2244(d)(1)(B). Section 2244(b)(1)(B) contemplates a state-created impediment; the actions or omissions of Petitioner's counsel do not apply. 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 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).
Moreover, Petitioner has not shown that any alleged wrongdoing by the prosecutor and/or defense counsel "altogether prevented him from presenting his claims in any form, to any court." Ramirez v. Yates, 571 F.3d at 1001 (emphasis original; citation omitted). Petitioner presented his claims to the state courts commencing in May of 2012, well before the alleged March 2013 revelations (see Respondent's Lodgment 4), and the state courts did not deny Petitioner's petitions for lack of documentation. Furthermore, although the California Supreme Court denied Petitioner's habeas petition containing his claims on August 14, 2013, Petitioner did not constructively file the present federal petition until November 12, 2014, nearly a year and three months later. Contrary to Petitioner's allegations, the record reflects that no alleged "impediment" supposedly caused by the prosecutor and/or Petitioner's counsel prevented Petitioner from filing a timely federal petition. See Ramirez v. Yates, 571 F.3d at 1000-01.
The Court assumes arguendo that Petitioner constructively filed the present Petition on its service date of November 12, 2014. See Porter v. Ollison, 620 F.3d at 958 (prison mailbox rule applies to federal habeas petitions).
The alleged lack of transcripts also did not provide the requisite "impediment." See United States v. Battles, 362 F.3d 1195, 1198 (9th Cir. 2004) (on motion to vacate sentence pursuant to 28 U.S.C. section 2255, movant not entitled to delayed accrual based on alleged lack of transcripts; movant's claims of ineffective assistance of counsel concerned "happenings at the time of his conviction, " and "due diligence requires that [a petitioner] a least consult his own memory of the trial proceedings"). "AEDPA does not convey a right to an extended delay while a habeas petitioner gathers every possible scrap of evidence that might support his claim." Jurado v. Burt, 337 F.3d 638, 644 (6th Cir. 2003); see also Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998); Powelson v. Sullivan, 2006 WL 2263908, at *3 (N.D. Cal. Aug. 8, 2006) (petitioner not entitled to delayed accrual of claim challenging sentence, where petitioner was present at 1988 sentencing hearing, although petitioner allegedly did not obtain physical evidence supporting claim until 2005 when he looked in his prison file). Therefore, Petitioner has not shown an entitlement to delayed accrual under section 2254(d)(1)(B).
The statute of limitations contained in section 2255 provides that a claim may accrue on "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255, sixth paragraph, clause (4).
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). Petitioner, who does not deny he signed and initialed the "Declaration by Defendant" and who was present at sentencing, knew or should have known, no later than the conclusion of sentencing on October 3, 1997, the "vital facts" concerning his claims that: (1) the court, the prosecutor and/or Petitioner's counsel assertedly advised Petitioner that he could receive a maximum sentence of life without the possibility of parole and allegedly thereby coerced Petitioner to accept the plea bargain; (2) Petitioner's counsel allegedly ineffectively failed to investigate the maximum possible sentence; and (3) Petitioner's counsel and the prosecutor allegedly withheld information concerning the maximum possible sentence (Grounds One, Two and Three). Petitioner is not entitled to delayed accrual on these claims.
With respect to Ground Four, Petitioner knew of should have known of the "vital facts" supporting his claim that the trial court and/or Petitioner's counsel allegedly failed to provide Petitioner with transcripts at least by December 6, 2012, when Petitioner filed his California Supreme Court habeas petition containing these claims (see Respondent's Lodgment 12, p. 6, attached memorandum, pp. 23, 33-34). As indicated above, the California Supreme Court denied that petition on August 14, 2013. Yet, Petitioner did not constructively file a federal petition until November 12, 2014. Thus, delayed accrual cannot rescue Ground Four from the one-year statute of limitations.
Petitioner also raised his claim that the trial court improperly denied Petitioner transcripts in his Court of Appeal habeas petition filed October 4, 2012 (see Respondent's Lodgment 8, attached memorandum, p. 31) and his Superior Court habeas petition filed May 31, 2012 (Respondent's Lodgment 4, p. 21).
With respect to the claim of allegedly improper judicial involvement in plea negotiations asserted in Ground Five, Petitioner alleges that the judge told trial counsel that the plea bargain was "the best deal they could get" and that counsel assertedly relayed this comment to Petitioner (Pet. Mem., pp. 28-29). Petitioner alleges the court thereby coerced Petitioner's plea (id.). Petitioner knew or should have known, no later than the date of sentencing, October 3, 1997, the "vital facts" underlying his claim that the sentencing court allegedly was "overly involved in plea negotiations" (Ground Five). Delayed accrual cannot rescue this claim from the limitations bar.
Finally, any contention that Petitioner's alleged inability to obtain transcripts merits delayed accrual for any of his claims is unavailing. Petitioner's failure to make any attempt to seek transcripts until 2008 manifests a lack of due diligence. Furthermore, Petitioner, who signed and initiated the "Declaration by Defendant" and was present at the plea proceedings, has not shown any inability to describe the relevant portions of the proceedings from memory. See United States v. Battles, 362 F.3d at 1198.
Petitioner does not argue, and the record does not show, that subsection C of section 2244(d)(1)(C) applies here. 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, 357 (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 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)).
D. Conclusion
In sum, because Petitioner knew or should have known the "vital facts" underlying each of his claims well prior to the one-year period preceding the filing of the present Petition, deferred accrual under section 2244(d)(1)(D) does not save any of his claims from the limitations bar. Absent sufficient tolling or an equitable exception, the Petition is untimely.
IV. 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 habeas petition. See 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); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000) (same).
More than a year elapsed between the finality of Petitioner's conviction and the filing of Petitioner's first state court petition for collateral review. To the extent the statute of limitations expired during this time, Petitioner's state habeas petitions filed after the expiration of the statute 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").
In any event, even if the Court were to accord Petitioner all conceivable statutory tolling, such tolling ended no later than August 14, 2013, well over a year before Petitioner constructively filed the present Petition. Therefore, absent sufficient equitable tolling or an equitable exception, Petitioner's claims are barred by the statute of limitations.
V. Equitable tolling
The statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). "[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 [the] 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)). Petitioner also must show that an "external force" caused the untimeliness, rather than "oversight, miscalculation or negligence." Waldron-Ramsey v. Pacholke, 556 F.3d at 1011 (citation and internal quotations omitted).
Petitioner does not argue equitable tolling expressly (see Opposition, pp. 2-3). Rather, Petitioner seems to argue that the habeas statute of limitations supposedly is inapplicable to an allegedly "void" state court judgment (Pet. Mem., pp. 32-36). Petitioner relies on state court cases and pre-AEDPA federal criminal cases purportedly holding that a court may set aside a "void" judgment at any time (id.).
Petitioner's reliance on state cases is unavailing. Federal law, not state law, governs the equitable tolling of the federal habeas statute of limitations. See Holland v. Florida, 560 U.S. at 650 ("Equitable tolling... asks whether federal courts may excuse a petitioner's failure to comply with federal timing rules, an inquiry that does not implicate a state court's interpretation of state law.") (citation omitted). Petitioner's federal authorities are also inapposite. Some of the federal appellate cases upon which Petitioner relies concern the pre-AEDPA version of 28 U.S.C. section 2255, which formerly provided that a section 2255 motion to vacate a federal criminal judgment could be brought "at any time" (Pet. Mem., pp. 34, citing, inter alia, McKinney v. United States, 208 F.2d 844 (D.C. Cir. 1953); Conners v. United States, 431 F.2d 1207 (9th Cir. 1970); and Juelich v. United States, 300 F.2d 381 (5th Cir. 1962). However, AEDPA amended section 2255 to eliminate the "at any time" language and to include a statute of limitations similar to that contained in section 2244. See United States v. Garcia, 210 F.3d 1058, 1059 (9th Cir. 2000); see also Pruitt v. United States, 274 F.3d 1315, 1317 (11th Cir. 2001) (observing AEDPA's amendment of section 2255 to replace the "at any time" language with a statute of limitation superseded cases such as McKinney v. United States and Juelich v. United States ). Other cases upon which Petitioner relies involve coram nobis petitions brought by federal prisoners (see Opposition, pp. 35-36), and consequently are also inapposite here. The habeas statute of limitations applies here, and the statute is not unconstitutional. See Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000), disapproved in part on other grounds, Patterson v. Stewart, 251 F.3d 1243, 1246 n.5 (9th Cir. 2001) ("We join the other circuits that have considered this issue and hold that AEDPA's one-year limitation does not constitute a per se violation of the Suspension Clause.").
See United States v. Morgan, 222 F.2d 673 (2d Cir. 1955); Farnsworth v. United States, 232 F.2d 59 (D.C. Cir. 1956); Garrison v. United States, 154 F.2d 106 (5th Cir. 1946); Haywood v. United States, 127 F.Supp. 485 (S.D.N.Y. 1954); United States v. Di Martini, 118 F.Supp. 601 (S.D.N.Y. 1953).
"Coram nobis relief is not available in federal court to attack a state court conviction." Casas-Castrillon v. Warden San Diego, Correctional Facility, 265 Fed.App'x 639, 2008 WL 267335, at *1 (9th Cir. 2008); see Hensley v. Municipal Court, 453 F.2d 1252 n.2 (9th Cir. 1972), reversed on other grounds, 411 U.S. 345 (1973) ("We are unable to treat this petition as one seeking coram nobis relief because [the petitioner] seeks to challenge a state court proceeding in federal court. Coram nobis lies only to challenge errors occurring in the same court") (citation omitted).
Any alleged inability to obtain transcripts of the plea proceedings does not merit equitable tolling. As indicated above, Petitioner was present at the plea and sentencing proceedings. Petitioner did not require a transcript of those proceedings to present his claims. See Lloyd v. Vannatta, 296 F.3d 630, 633 (7th Cir. 2002), cert. denied, 537 U.S. 1121 (2003) (absence of transcripts, including transcripts of prosecutor's closing argument, did not entitle petitioner to equitable tolling on claim of prosecutorial misconduct, where petitioner "was present at trial and knew the basis on which he could have asserted prosecutorial misconduct"); Smith v. Carroll, 2004 WL 1588293, at *4 (D. Del. July 12, 2004) (petitioner not entitled to equitable tolling on account of allegedly missing transcripts, where factual predicates for petitioner's claims were raised in earlier state court appeal; "Smith has not demonstrated how a complete trial transcript was necessary for him to file a habeas petition based on facts he already knew"). Indeed, Petitioner filed petitions in state court without the desired transcripts.
Furthermore, Petitioner has not shown diligence in pursuing his claims or in attempting to obtain transcripts. Petitioner alleges that "[l]ate in 2008, Petitioner discovered that there were critical mistakes by the trial Court, Prosecution, and trial Counsel, that violated Petitioner' constitutional rights" (Pet. Mem., p. 3). Petitioner has failed to demonstrate why he could not have made this purported discovery earlier or sought transcripts earlier. Accordingly, Petitioner has not shown the requisite diligence to qualify for equitable tolling. See Gibbs v. LeGrand, 767 F.3d 879, 893 (9th Cir. 2014), pet. for cert. filed (Jan. 21, 2015) (No. 14-896) (in determining whether a habeas petition exercised diligence for purposes of equitable tolling, court may consider not only whether petitioner diligently pursued his claim after the alleged extraordinary circumstance began but also whether petitioner pursued his claim within a reasonable period before the alleged extraordinary circumstance began) (emphasis added).
In a purported letter from Petitioner's stepmother to the Superior Court dated July 24, 2012, Petitioner's stepmother stated that, in November 2006, Petitioner's father and stepmother hired an attorney to investigate Petitioner's case, and the attorney allegedly was unable to find a valid reason to dispute Petitioner's conviction (Pet. Ex. E, second document). According to Petitioner's stepmother, in 2008 Petitioner discovered, through law library research, that he assertedly could not have received an LWOP sentence (id.).
Neither Petitioner's age at the time of his conviction and sentence nor Petitioner's alleged lack of sophistication or legal expertise demonstrate an entitlement to equitable tolling. Petitioner's alleged inexperience and lack of legal expertise do not 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 warranting equitable tolling"). Petitioner's relative youth also cannot warrant equitable tolling. See Allen v. Almager, 2008 WL 1335548, at *3 (C.D. Cal. Apr. 9, 2008) (petitioner's youth, lack of education and legal knowledge insufficient to warrant equitable tolling). In any event, Petitioner, aged sixteen at his July 22, 1997 sentencing, reached the age of majority no later than July 22, 1999. Yet, Petitioner waited at least until 2006 before doing anything to pursue collateral relief in any court. See Hamilton v. Gonzalez, 2009 WL 3517612, at *4 (even if Petitioner's status as a minor at the time of conviction could warrant equitable tolling, "it would only toll the limitations period until the petitioner became an adult, with perhaps a one-year grace period thereafter") (citations omitted). Moreover, during the more than one year period between the California Supreme Court's August 14, 2013 denial of Petitioner's state habeas petition and Petitioner's constructive filing of the present Petition, Petitioner was over 30 years of age.
As indicated above, Petitioner allegedly contacted a lawyer in 2006.
In sum, equitable tolling cannot rescue the present Petition from the bar of limitations. The Petition is untimely.
Petitioner does not argue, much less demonstrate the applicability of, any equitable exception to the AEDPA statute of limitations.
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.