Opinion
5:21-87-VAP (MAR)
08-04-2021
GEORGE H. ROBINSON, Petitioner, v. M. POLLARD, Warden, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HONORABLE MARGO A. ROCCONI, United States Magistrate Judge.
This Final Report and Recommendation is submitted to the Honorable Virginia A. Phillips, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
This Court has issued a Final Report and Recommendation that is nearly identical to the original Report and Recommendation, Dkt. 12, except that the Court has:
(1) Corrected several case numbers referenced in the State Court Proceedings section and expanded the factual details in this section, see below, subsection II.A;
(2) Corrected CM/ECF Docket page number citations; and
(3) Updated the various stylistic/formatting elements throughout the document, all of which have no bearing on the outcome of the Court's determination in the original Report and Recommendation filed in this matter.
I. SUMMARY OF RECOMMENDATION
Petitioner George H. Robinson (“Petitioner”) has constructively filed a pro se Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254. ECF Docket No. (“Dkt.”) 1. Respondent filed a Motion to Dismiss (“Motion”) arguing the Petition is untimely. Dkt. 6. Petitioner filed an Opposition (“Opposition”) to Respondent's Motion. Dkt. 10. For the reasons stated below, the Court recommends GRANTING Respondent's Motion.
Under the “mailbox rule, ” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted).
II. PROCEDURAL HISTORY
A. STATE COURT PROCEEDINGS
On March 23, 1995, following a jury trial in the San Bernardino County Superior Court, Petitioner was convicted of: (1) armed robbery in violation of section 211 of the California Penal Code (“Count One”) and (2) evading arrest in violation of section 2800.2 of the Vehicle Code (“Count Two”). Dkt. 1 at 2; Lodged Document No. (“Lodg.”) 1 at 2.
All citations to electronically filed documents refer to the CM/ECF pagination.
The Court's citations to Lodged Documents refer to documents Respondent lodged in support of the Motion to Dismiss. See Dkt. 7. Respondent identifies the documents as follows:
1. Opinion filed in California Court of Appeal (No. E058842) (“Lodg. 1”)
2. Petition for Writ of Habeas Corpus in San Bernardino County Superior Court (No. WHCJS1600011) (“Lodg. 2”)
3. Order to show cause and partial denial of Petition for Writ of Habeas Corpus in San Bernardino County Superior Court (No. WHCJS1600011) and Amended Abstract of Judgment (No. FWV04511) (“Lodg. 3”)
4. Petition for Writ of Habeas Corpus in California Court of Appeal (No. E066478) (“Lodg. 4”)
5. Order denying Petition for Writ of Habeas Corpus in California Court of Appeal (No. E066478) (“Lodg. 5”)
6. Petition for Writ of Habeas Corpus in San Bernardino County Superior Court (No. WHCJS1800382) (“Lodg. 6”)
7. Order denying Petition for Writ of Habeas Corpus in San Bernardino County Superior Court (No. WHCJS1800382) (“Lodg. 7”)
8. Petition for Writ of Habeas Corpus in California Court of Appeal (No. E072007) (“Lodg. 8”)
9. Order denying Petition for Writ of Habeas Corpus in California Court of Appeal (No. E072007) (“Lodg. 9”)
10. Petition for Writ of Habeas Corpus in California Supreme Court (No. S255571) (“Lodg. 10”)
11. Order denying Petition for Writ of Habeas Corpus in California Supreme Court (No. S255571) (“Lodg. 11”)
12. Petition for Writ of Habeas Corpus in San Bernardino County Superior Court (No. WHCJS1900382) (“Lodg. 12”)
13. Order denying Petition for Writ of Habeas Corpus in San Bernardino County Superior Court (No. WHCJS1900382) (“Lodg. 13”)
14. Petition for Writ of Habeas Corpus in California Court of Appeal (No. E074986) (“Lodg. 14”)
15. Order denying Petition for Writ of Habeas Corpus in California Court of Appeal (No. E074986) (“Lodg. 15”)
16. Petition for Writ of Habeas Corpus in California Supreme Court (No. S262370) (“Lodg. 16”)
17. Order denying Petition for Writ of Habeas Corpus in California Supreme Court (No. S262370) (“Lodg. 17”)
In a bifurcated proceeding, the jury also found true that Petitioner had eleven (11) prior strike convictions and two (2) prior prison terms. Lodg. 1 at 2. The trial court sentenced Petitioner to an indeterminate term of imprisonment of twenty-five (25) years to life in prison. Id.; Dkt. 1 at 2.
On May 24, 1995, Petitioner appealed his conviction in the California Court of Appeal (No. E016355). Dkt. 2 at 1; California Courts, Appellate Courts Case Information, 4th Appellate District Division 2, Docket https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=42&docid=6 49460&docno=E016355&requesttoken=NiIwLSEmTkw4W1BBSCI9XEtJUFg6Ul xbIiM%2BSz9SICAgCg%3D%3D (last visited on July 23, 2021). On June 24, 1997, the California Court of Appeal affirmed the judgment but modified Petitioner's sentence to impose two (2) mandatory five-year enhancements for an additional ten (10) years, thereby sentencing Petitioner to an indeterminate term of imprisonment of thirty-five (35) years to life in prison. Id.; Lodgs. 1 at 2 n. 3; 13 at 2. Petitioner appealed this decision to the California Supreme Court on August 5, 1997, which denied review of the appeal on September 22, 1997. Lodg. 13 at 2; California Courts, Appellate Courts Case Information, Supreme Court, Docket https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&docid=17 95084&docno=S063342&requesttoken=NiIwLSEmTkw4W1BBSCI9VExJQEg0U DxbJSIuSz5TUCAgCg%3D%3D (last visited on July 23, 2021).
On February 15, 2013, Petitioner filed a petition for recall of sentence in the San Bernardino County Superior Court pursuant to California Penal Code § 1170.126 (“section 1170.126”). Dkts. 2 at 1; 6 at 5; Lodgs.1 at 3; 13 at 2. On May 6, 2013, that court denied Petitioner's petition. Dkt. 2 at 1. Lodgs. 1 at 7; 13 at 2. On May 24, 2013, Petitioner appealed his conviction in the California Court of Appeal (No. E058842). Dkt. 1 at 2; Lodg. 1; California Courts, Appellate Courts Case Information, 4th Appellate District Division 2, Docket https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=42&docid=2 047119&docno=E058842&requesttoken=NiIwLSEmTkw4W1BBSCItSEJIMFg6U lxbJiBeJz5TUCAgCg%3D%3D (last visited on July 23, 2021). On November 15, 2013, the Court of Appeal denied Petitioner's appeal. Dkt. 2 at 1; Lodgs. 1 at 4-6; 13 at 2.
On November 7, 2012, the Three Strikes Reform Act of 2012 (“Proposition 36”), which modified California's Three Strikes law as it applies to certain third-strike indeterminate sentences, became effective. See Cal. Penal Code § 1170.126. Among other things, Proposition 36 created a post-conviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the Three Strikes law for a crime that is not a serious or violent felony, and who is not otherwise disqualified, may have his or her sentenced recalled and be sentenced as a second strike offender unless the court determines resentencing would pose an unreasonable risk of danger to public safety. People v. Yearwood, 213 Cal.App.4th 161, 168, 151 Cal.Rptr.3d 901 (2013) (citing Cal. Penal Code § 1170.126). The resentencing provisions in section 1170.126 allow petitions to recall sentences only for prisoners whose convictions are for “a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” Cal. Penal Code §§ 1170.126(b); see also Cal. Penal Code § 1170.126(e)(1) (an inmate is “eligible for resentencing” only if his conviction is for a felony that is not defined as a serious and/or violent felony under § 667.5(c) or § 1192.7(c)).
On April 25, 2014, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which the court denied on July 9, 2014. Dkt. 2 at 2; Lodg. 6 at 9; California Courts, Appellate Courts Case Information, Supreme Court, https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&do cid=2075423&docno=S218098&requesttoken=NiIwLSEmTkw6WyBBSCNdXE pIQEg0UDxTIiBeRzNRMCAgCg%3D%3D (last visited July 23, 2021).
On December 21, 2015, Petitioner constructively filed a petition for resentencing in the San Bernardino County Superior Court (No. WHCJS1600011). Dkts. 2 at 2; 10 at 1-2; Lodgs. 2; 13 at 2. On May 20, 2016, the court denied the petition in part (No. WHCJS1600011) and, sitting as the trial court in No. FWV04511, issued an amended abstract of judgment modifying Petitioner's sentence. Dkt. 6 at 2; Lodgs. 3; 13 at 2-3. Petitioner did not appeal this decision, and instead filed a petition for writ of habeas corpus in the California Court of Appeal on July 19, 2016 (No. E066478). Dkt. 6 at 2; Lodgs. 4; 13 at 3. The Court of Appeal denied relief on July 28, 2016. Dkt. 6 at 2; Lodgs. 5; 13 at 3.
The Transcript from Petitioner's resentencing hearing on May 20, 2016, shows that the court explained Petitioner's resentencing as follows:
As to Count 1, second-degree robbery, [Petitioner's] sentence will remain unchanged at 25 to life.
As to Count 2, for violation of Vehicle Code Section 2800.2, evading an officer, he was given originally 25 to life on that count as well. That sentence is modified to two years . . . .Dkt. 2 at 11.
Petitioner contends that he did file a notice of appeal but that he never received a response. Dkts. 2 at 2; 10 at 2. He reasoned that because he “used the habeas corpus case number” the filing may have been defective. Dkt. 2 at 2, 28. Thus, when he did not receive any additional information from the court, he proceeded to constructively file a habeas petition in the California Court of Appeal on July 19, 2016, seeking review of the May 20, 2016 sentencing decision, which the court denied on July 28, 2016. Lodgs. 4, 5, 13 at 3.
On October 10, 2018, Petitioner constructively filed his sixth petition for writ of habeas corpus, seeking resentencing in the San Bernardino County Superior Court, which the court denied on November 14, 2018 (No. WHC1800382). Lodgs. 6; 7 at 2. Petitioner constructively filed a petition in the California Court of Appeal on January 16, 2019 (No. E072007), which the court denied on April 4, 2019. Lodgs. 8 at 6; 9. Petitioner then petitioned the California Supreme Court on April 24, 2019 (No. S255571), which the court denied on July 31, 2019. Lodgs. 10, 11.
On September 2, 2019, Petitioner constructively filed a petition (“State Petition”) in the San Bernardino County Superior Court (No. WHCJS1900382) presenting the same claims he presents in the instant Petition. Dkts. 2 at 2-3; 6 at 5; Lodg. 12. On December 12, 2019, the court denied the State Petition as untimely. Dkt. 6 at 2; Lodg. 13 at 6. Petitioner then constructively filed the State Petition in the California Court of Appeal on March 15, 2020 (No. E074986), which the court denied on April 15, 2020. Lodgs. 14, 15. Petitioner thereafter constructively filed the State Petition in the California Supreme Court on May 20, 2020 (No. S262370), which the court denied on August 12, 2020. Lodgs. 16, 17.
B. FEDERAL COURT PROCEEDINGS
On January 10, 2021, Petitioner constructively filed the instant Petition. Dkt. 1. Petitioner sets forth the following two (2) grounds for relief from his 2016 resentencing hearing:
In his Memorandum of Points and Authorities in Support of his Petition, Petitioner also argues for a third ground for relief-that the “trial court improperly procedurally barred relief.” Dkt. 2 at 3. However, Petitioner does not list this as a ground for relief on the Petition form itself. See Dkt. 1 at 5-6. Nor does Petitioner substantiate this claim with any factual allegations or otherwise. See Dkt. 2 at 5.
(1) The trial court violated Petitioner's procedural due process rights during his 2016 resentencing hearing; and
(2) Petitioner was denied effective representation during the hearing because his counsel failed to discuss his case with him, remained at least thirty (30) feet away from him at all times, and failed to communicate with him after the hearing ended.
Dkts. 1 at 5; 2 at 3-6.
On February 11, 2021, Respondent filed the instant Motion arguing the Petition should be dismissed as untimely. Dkt. 6. Petitioner filed an Opposition to the Motion on March 19, 2021. Dkt. 10. The matter thus stands submitted.
III. DISCUSSION
A. THE PETITION WAS FILED AFTER AEDPA'S ONE-YEAR LIMITATIONS PERIOD
1. Applicable law
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) “sets a one-year limitations period in which a state prisoner must file a federal habeas corpus petition.” Thompson v. Lea, 681 F.3d 1093, 1093 (9th Cir. 2012) (citation omitted). Ordinarily, the limitations period runs from the date on which the prisoner's judgment of conviction “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) (“Section 2244(d)(1)”). “When, on direct appeal, review is sought in the state's highest court but no petition for certiorari to the United States Supreme Court is filed, direct review is considered to be final when the certiorari petition would have been due, which is ninety days after the decision of the state's highest court.” Porter v. Ollison, 620 F.3d 952, 958-59 (9th Cir. 2010) (citations omitted).
2. Analysis
Petitioner filed the instant Petition after April 24, 1996, the effective date of AEDPA. See Dkt. 1. The requirements for habeas relief set forth in AEDPA, therefore, apply. Soto v. Ryan, 760 F.3d 947, 956-57 (9th Cir. 2014).
Here, because the court entered an amended abstract of judgment in conjunction with Petitioner's resentencing, Petitioner's conviction did not become final for the purposes of AEDPA until the amended judgment became final. See Cal. R. Ct. 8.308(a); see also Burton v. Stewart, 549 U.S. 147, 156-57 (2007); Anderson v. Moss, 2019 WL 8168056, at *6 (C.D. Cal. May 15, 2019), report and recommendation adopted, 2019 WL 8167932 (C.D. Cal. June 17, 2019) (where resentencing resulted in the entry of an amended judgment, the one-year limitation period began running when the amended judgment became final); Johnson v. Neuschmid, No. CV 19-8119- ODW (SP), 2020 WL 6219330, at *2 (C.D. Cal. Sept. 1, 2020), report and recommendation adopted, No. CV 19-8119-ODW (SP), 2020 WL 6203569 (C.D. Cal. Oct. 22, 2020) (“Here, the Los Angeles County Superior Court resentenced petitioner on December 7, 2017 [pursuant California Penal Code § 1170.18] . . . Thus, petitioner's conviction became final on February 5, 2018, sixty days after his December 7, 2017 resentencing.”).
The San Bernardino County Superior Court resentenced Petitioner on May 20, 2016. Dkts. 2 at 11; 6 at 5; Lodg. 3. While Petitioner appears to have filed a notice of appeal with the California Court of Appeal on June 12, 2016, there is no indication that Petitioner received a response; Petitioner acknowledged in his Petition that this may have been due to his filing it under the wrong case number. See Dkt. 2 at 2, 28. Petitioner did not file a petition for review in the California Supreme Court, nor does he appear to have made any other attempt to appeal his resentencing. Petitioner's failure to file a petition for review in the California Supreme Court precluded him from filing a petition for writ of certiorari in the United States Supreme Court. See 28 U.S.C. §§ 1257, 2101(d); U.S. Supreme Court Rule 13.1; see also Gonzalez v. Thaler, 565 U.S. 134, 154, (2012) (“[W]ith respect to a state prisoner who does not seek review in a State's highest court, the judgment becomes “final” under § 2244(d)(1)(A) when the time for seeking such review expires.”).
Accordingly, Petitioner's conviction became final sixty (60) days after his May 20, 2016 resentencing, on July 19, 2016. See Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006) (because petitioner did not appeal, petitioner's California conviction became final sixty (60) days after the judgment of conviction); Anderson, 2019 WL 8168056 at *6 (where resentencing resulted in the entry of an amended judgment, the one-year limitation period began running sixty (60) days after entry of judgment). Consequently, the Petition is untimely unless Petitioner is entitled to sufficient statutory or equitable tolling, or an applicable equitable exception.
C. PETITIONER IS NOT ENTITLED TO A LATER COMMENCEMENT OF THE LIMITATIONS PERIOD
1. Applicable law
Pursuant to section 2244(d)(1), there are three (3) situations where a petitioner may be entitled to a later trigger date of the one-year limitation period beyond the date of his conviction becoming final. 28 U.S.C. § 2244(d)(1). First, under subsection (B), if a state action prevented a petitioner from filing a federal habeas claim in violation of the Constitution or laws of the United States, the limitations period begins to run on “the date on which the impediment to filing an application created by State action . . . is removed[.]” 28 U.S.C. § 2244(d)(1)(B). Second, under subsection (C), if a right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review, the limitations period begins to run on the “date on which the constitutional right asserted was initially recognized by the Supreme Court[.]” 28 U.S.C. § 2244(d)(1)(C). Third, under subsection (D), if a petitioner brings newly-discovered claims, the limitations period begins to run on “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). However, “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). A different triggering date, therefore, may apply to each claim in a petition. Id.
“The statute of limitations begins to run under § 2244(d)(1)(D) when the factual predicate of a claim ‘could have been discovered through the exercise of due diligence,' not when it actually was discovered.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (emphasis added); see also Juniors v. Dexter, No. 07-1377-DMG (AGR), 2011 WL 1334422 at *2 n.3 (C.D. Cal. Jan. 14, 2011) (“[T]he statute starts running on the date when the petitioner knew or with the exercise of due diligence could have discovered the factual predicate of his claim, not from the date on which the petitioner obtains evidence to support his claim.”) (citation omitted). “Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance.” Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (citation omitted). In addition, “[t]he question is when petitioner had the essential facts underlying his claim, not when he obtained additional evidence supporting his claim.” Coley v. Ducart, No. 2:16-1168-AC (P), 2017 WL 714304, at *4 (E.D. Cal. Feb. 23, 2017) (emphasis added).
2. Analysis
Petitioner is not entitled to a trigger date beyond the date on which his conviction became final. See 28 U.S.C. 2244(d)(1).
First, Petitioner does not show he is entitled to a later trigger date under subsection (B) because he does not identify any state action that prevented him from filing a federal habeas claim in violation of the Constitution or laws of the United States. 28 U.S.C. § 2244(d)(1)(B).
Second, Petitioner does not show he is entitled to a later trigger date under subsection (C) because he does not identify a newly-recognized right made retroactively available to cases on collateral review. 28 U.S.C. § 2244(d)(1)(C).
Finally, the Petition does not allege any claims that would entitle him to a later trigger date for newly-discovered claims under Subsection (D), nor has he identified any evidence that was not, or could not have been, discovered before July 19, 2016 when his conviction became final. 28 U.S.C. § 2244(d)(1)(D).
Therefore, Petitioner has not shown he is entitled to a later trigger date for any of the Grounds set forth in the Petition.
D. STATUTORY TOLLING DOES NOT RENDER THE PETITION TIMELY
1. Applicable law
“A habeas petitioner is entitled to statutory tolling of AEDPA's one-year statute of limitations while a ‘properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.'” Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012) (quoting 28 U.S.C. § 2244(d)(2) (“section 2244(d)(2)”)). Statutory tolling does not extend to the time between the date on which a judgment becomes final and the date on which the petitioner files his first state collateral challenge because during that time, there is no case “pending.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).
A petitioner, however, is entitled to statutory tolling (i.e. gap tolling) for reasonable periods between the filing of properly filed applications for state post-conviction or other collateral review. Nedds, 678 F.3d at 781. Nevertheless, “[a] petitioner who unreasonably delays in filing a state habeas petition would not be granted the benefit of statutory [gap] tolling because the petition would not be considered ‘pending' or ‘properly filed' within the meaning of § 2244(d)(2).” Id. at 780 (citations omitted). If a state court denies the petitioner's state habeas petition and the petitioner fails to file a subsequent state habeas petition within a reasonable time period, the petitioner's unreasonable delay precludes statutory tolling. See Evans v. Chavis, 546 U.S. 189, 201 (2006) (holding that absent a clear indication to the contrary by the state legislature or state court, an unexplained and unjustified gap between filings of six months was “unreasonable”). Moreover, “section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed.” Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (citation omitted).
2. Analysis
Here, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal on July 19, 2016, the same day his resentencing conviction became final. Dkt. 6 at 2; Lodg. 4. Petitioner is therefore entitled to statutory tolling until the court denied the petition on July 28, 2016. See Lodg. 5.
Petitioner, however, did not file his next, and sixth, state habeas petition until October 10, 2018, when he sought resentencing in the San Bernardino County Superior Court. Lodgs. 6; 7 at 1. Furthermore, as Respondent notes in the Motion, Petitioner's 2018 petition “did not challenge the underlying conviction within the meaning of § 2244(d)(2) and thus cannot statutorily toll the limitations period.” Dkt. 6 at 4; see also Clayton v. Biter, 868 F.3d 840, 844 (9th Cir. 2017) (“Thus, under California law, a resentencing petition does not challenge the underlying conviction or sentence; rather, it seeks to obtain the benefits of Proposition 36 and results in the entry of a new appealable order or judgment.”).
As such, pursuant to section 2244(d)(2)-and factoring in the statutory tolling Petitioner received for the time between when he filed his July 19, 2016 petition and when the Court of Appeal denied that petition on July 28, 2016-the limitations period expired on July 28, 2017. 28 U.S.C. § 2244(d)(2). Hence, statutory tolling from any subsequent petitions could not render the Petition timely. See Ferguson, 321 F.3d at 823 (“§ 2244(d)(2) does not permit the reinitiation of the limitation period that ended before a state petition is filed.”).
E. PETITIONER IS NOT ENTITLED TO EQUITABLE TOLLING
1. Applicable law
In addition to the statutory tolling provided for by section 2244(d)(2), the “AEDPA limitations period may be tolled” when it is “equitably required.” Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011) (citations omitted). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Forbess v. Franke, 749 F.3d 837, 839 (9th Cir. 2014) (noting courts may grant equitable tolling only where “‘extraordinary circumstances' prevented an otherwise diligent petitioner from filing on time” (citation omitted)). Petitioner must prove the alleged extraordinary circumstance was a proximate cause of his untimeliness and the extraordinary circumstance made it impossible to file a petition on time. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009); Roy v. Lampert, 465 F.3d 964, 973 (9th Cir. 2006) (citing Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003)). The “threshold necessary to trigger equitable tolling [under AEDPA] is very high[.]” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (internal quotation marks and citation omitted). The petitioner “bears a heavy burden to show that [he] is entitled to equitable tolling, lest the exceptions swallow the rule[.]” Rudin v. Myles, 781 F.3d 1043, 1055 (9th Cir. 2014) (internal quotation marks and citation omitted).
Moreover, a “stop clock” approach to equitable tolling, whereby a petitioner may simply add the time during which he was impeded by an extraordinary circumstance to extend the period of the statute of limitations, is not appropriate. Smith v. Davis, 953 F.3d 582, 586 (9th Cir. 2020) (en banc), cert. denied, No. 20-5366, 2020 WL 6829092 (2020). Rather, a petitioner “must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance exited, but before and after as well, up to the filing of his claim in federal court.” Id. at 598-99.
2. Analysis
Here, the Petition contains no allegations that would provide Petitioner with a basis for equitable tolling. Petitioner states that “[t]here was at least a year between 2017 and 2018 that my ability to conduct research was disrupted, due to being diagnosed with cancer, undergoing major surgery and radiation treatment.” Dkt. 10 at 3. The Court acknowledges the myriad ways a cancer diagnosis can upend a person's life and extends its sympathy to Petitioner for his cancer diagnosis.
However, to the extent that Petitioner is arguing that he is entitled to equitable tolling due to his cancer diagnosis and treatment in 2017 and 2018, Petitioner does not allege sufficient facts to entitle him to equitable tolling. Id. at 2-3; see also Thomas v. Fox, No. CV 16-89-JGB (DFM), 2016 WL 5719692, at *3 (C.D. Cal. Aug. 12, 2016), report and recommendation adopted, No. CV 16-89-JGB (DFM), 2016 WL 5661872 (C.D. Cal. Sept. 28, 2016) (“the Court's review of Petitioner medical records do not show that Petitioner was incapacitated due to cancer surgery, post-surgery recovery, or other treatment . . . Accordingly, the Court finds that Petitioner is not entitled to a period of equitable tolling.”) (internal citations omitted)).
Furthermore, even if Petitioner were entitled to equitable tolling for a period of time due to his cancer diagnosis, the Petition would still be untimely because Petitioner's last three (3) petitions did not properly toll the limitations period. Dkt. 6 at 4-5; Lodgs. 6, 8, 10; see also Clayton v. Biter, 868 F.3d 840, 844 (9th Cir. 2017) (“a resentencing petition does not challenge the underlying conviction or sentence”); Neuschmid, 2020 WL 6219330 at *4 (denial of resentencing petition does not toll limitations period), adopted 2020 WL 6203569 (Oct. 22, 2020).
IV. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Court issue an Order:
(1) accepting this Report and Recommendation; and
(2) GRANTING the Motion to Dismiss the Petition as untimely.
V. 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.