Opinion
No. C 99-4596 CRB (PR)
February 19, 2003
ORDER GRANTING MOTION TO DISMISS FOLLOWING REMAND
Torus L. Smith, a prisoner at California State Prison, Solano, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction from the Superior Court of the State of California in and for the County of San Mateo. It was dismissed as untimely under 28 U.S.C. § 2244(d) per order filed on October 24, 2000. Smith appealed.
On September 18, 2002, the Ninth Circuit affirmed in part and remanded in part. Smith v. Newland, No. 00-17510, slip op. at 2, 4 (9th Cir. Sept. 18, 2002) (unpublished memorandum disposition). The court found that the petition was untimely absent tolling and affirmed this court's rejection of Smith's various tolling claims save his claim that "he is entitled to equitable tolling because the prison law library did not have materials on the AEDPA until mid-1998." Id. at
3. As to this claim the court noted:
We have concluded that an inadequate prison law library may justify equitable tolling, or it might be an "impediment" under § 2244(d)(1)(B). Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (per curiam). However, based on the limited record before us, we cannot determine whether tolling is appropriate in this case. See Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001). We therefore vacate the district court's ruling on this claim, and remand for further development of the record and to allow the district court to determine in the first instance whether the alleged inadequate prison law library prevented Smith from filing his § 2254 petition on time. See Whalem/Hunt, 233 F.3d at 1148.Id. at 3.
Pursuant to the mandate of the Ninth Circuit, this court afforded the parties an opportunity to "further develop . . . the record" and, show or refute Smith's claim that not having materials on the AEDPA in the prison law library until mid-1998 prevented/made it impossible for him to file a federal petition on time. Oct. 23, 2002 Order at 2-3. The parties have now filed their submissions.
BACKGROUND
On May 12, 1993, Smith was sentenced to life with the possibility of parole. He appealed and sought habeas relief. On September 22, 1994, the California Court of Appeal issued an opinion affirming the judgment of conviction and denying habeas relief. Smith did not seek review from the Supreme Court of California.
On April 22, 1997, Smith filed a petition for a writ of habeas corpus in state superior court. It was denied on September 2, 1997. On April 8, 1998, he filed another habeas petition in the California Court of Appeal. It was denied on October 7, 1998. On January 13, 1999, he filed a final habeas petition in the Supreme Court of California. It was denied on May 26, 1999.
The prison mailbox rule applies. See Saffold v. Newland, 250 F.3d 1262, 1265, 1268 (9th Cir. 2001), overruled on other grounds by Carey v. Saffold, 122 S.Ct. 2134 (2002)
On October 5, 1999, Smith filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254.
Id.
DISCUSSION
Respondent has submitted undisputed evidence showing that Smith was on notice of the AEDPA's one-year statute of limitation (including its text and workings) by no later than April 22, 1997, the day he signed and submitted for filing his state habeas petition filed in the San Mateo County Superior Court. In that petition, Smith stated:
In this matter, certain circumstances serve to render the present Petition subject to federal jurisdiction on habeas corpus because such circumstances have recently been codified, to Petitioner's benefit, by the legislative amendment to 28 U.S.C. § 2244(d), as follows:
1. The one-year period of limitation on filing a federal habeas petition, starting 4/24/96, does not include "the time during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted toward any period of limitation. . . [.]" As shown above, (Argument Two, section three D) habeas corpus, not direct appeal, is a collateral post-conviction proceeding and thus the time elapsed since 4/24/97 does not count because Petitioner's state habeas petition has been pending in state court.
Addendum to Pet. at 146-47 (Resp't Ex. D).
Smith's claim that he is entitled to tolling because the prison law library did not have materials on the AEDPA until mid-1998 is without merit. The record shows that Smith was aware of the AEDPA's one-year statute of limitation (including its text and workings) by no later than April 22, 1997. On that day, April 22, 1997, Smith had at least two more days to file a federal petition on time or, alternatively, file a state habeas petition which would toll the limitation period under 28 U.S.C. § 2244(d)(2). See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (prisoner with state conviction finalized before April 24, 1996 had at least until April 24, 1997 to file a federal habeas petition). Smith chose the latter, and the limitation period accordingly tolled until June 27, 1999 (30 days after the Supreme Court of California denied his final state habeas petition on May 26, 1999). See Allen v. Lewis, 295 F.3d 1046, 1046 (9th Cir. 2002) (en banc) (tolling under § 2244(d)(2) ends 30 days after the Supreme Court of California's denial of the final habeas petition is filed because that is when the denial becomes "final" under California Rule of Court 24). Smith then had until June 29, 1999 to file a federal petition on time. He did not do so until October 5, 1999, however.
On this record, it simply cannot be said that not having materials on the AEDPA in the prison law library until mid-1998 (even if true) "prevented" and/or made it "impossible" for Smith to file a federal petition on time. See 28 U.S.C. § 2244(d)(2) (statutory tolling available if "impediment" created by state action "prevented" prisoner from filing); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (equitable tolling available if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time"), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). Smith failed to file a federal petition on time not because of inadequacies in the law library, but because he waited nearly four months after the Supreme Court of California denied his final state habeas petition to file in federal court.,
On October 23, 2000, this court determined that Smith was not prevented from filing on time by the alleged lack of materials on the AEDPA:
Petitioner filed his petition in state court on April 22, 1997, before the limitation period expired. The limitation period was then tolled under § 2244(d)(2) until the Supreme Court of California denied the petition on May 26, 1999. At that time, the law library had been "updated" for nearly a year and petitioner could have filed a timely federal petition. He failed to do so not because of inadequacies in the law library, but because he waited nearly four months to file in federal court. Even if the alleged inadequacies of the law library somehow constituted unconstitutional state action, they did not prevent petitioner from filing a timely petition and therefore do not entitle him to the later trigger provision under § 2244(d)(1)(B).
Oct. 24, 2000 Order at 8. This rationale applies with equal force today (especially in view of the court's finding that petitioner was aware of the AEDPA's one-year statute of limitation by no later than April 22, 1997) and extends to, and forecloses, Smith's claim for equitable tolling. See Beeler, 128 F.3d at 1288 (equitable tolling available only if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time").
It may well be that Smith failed to file a federal petition on time because he misconstrued the text of § 2244(d)(2). However, this would not justify equitable tolling or entitle him to the later trigger provision under 28 U.S.C. § 2244(d)(1)(B). Cf. Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy and pro se status not sufficient cause to avoid procedural bar).
Smith claims for the first time that his federal petition is timely because is entitled to tolling under 28 U.S.C. § 2244(d)(2) from March 22, 1995 until June 27, 1999. According to Smith, a motion for production of photo line-up and single photo documents, filed in state superior court on March 22, 1995 and promptly denied on March 30, 1995, constitutes a "properly filed" application for post-conviction relief under § 2244(d)(2) and entitles him to continued tolling until the Supreme Court of California's denial of his final habeas petition became final on June 27, 1999.
AEDPA's one-year limitation period is tolled under § 2244(d)(2) for 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.'" Dictado v. Ducharme, 244 F.3d 724, 726 (9th Cir. 2001) (quoting 28 U.S.C. § 2244(d)(2)). In Carey v. Saffold, 122 S.Ct. 2134 (2002), the Supreme Court held that the limitation period is also tolled during the time between a lower state court's decision and the filing of a notice of appeal to a higher state court. Carey, 122 S.Ct. at 2138. In California, where prisoners generally use the state's "original writ system," this means that the limitation period remains tolled during the intervals between a state court's disposition of an original state habeas petition and the filing of a further original state habeas petition in a higher court, provided the prisoner did not delay unreasonably in seeking review in the higher court. See id. at 2139-41.
Respondent argues that Smith's March 1995 motion does not constitute a "properly filed application for State post-conviction or other collateral review" under California Law. Regardless, the rationale of Carey does not entitle Smith to tolling under § 2244(d)(2) for the time period between March 30, 1995 (the date on which the state superior court denied Smith's motion for production of photo line-up and single photo documents) and April 22, 1997 (the date on which Smith filed his habeas petition in state superior court) because Smith was not seeking review in a higher court. The Supreme Court noted that a California prisoner who files a "subsequent and similar petition in another lower court (say, another trial court) will likely find consideration of that petition barred as successive." Carey, 122 S.Ct. at 2139 (citing In re Clark, 5 Cal.4th 750, 767-71 (1993)). By contrast, a prisoner who files the same petition in a higher, reviewing court will find that he can obtain appellate review. Id. (citing In re Resendiz, 25 Cal.4th 230, 250 (2001). Only the latter is entitled to tolling for the interval between the denial of the first petition and the filing of the next one. See id. at 2139-41; see also Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir. 1999) (limitation period "remains tolled during the intervals between the state court's disposition of a state habeas petition and the filing of a petition at the next state appellate level").
Even before Carey, the Ninth Circuit declined to extend "interval tolling" to intervals other than the intervals between the state court's disposition of a state habeas petition and the filing of a petition at the next state appellate level. See, e.g., Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001) (finding that limitation period was not tolled during gap between successive state habeas petitions filed in the state's highest court); Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002) (finding that limitation period was not tolled during gap between first set of state habeas petitions (superior court, court of appeal and supreme court) and second set of state habeas petitions (superior court, court of appeal and supreme court)).
In sum, AEDPA's one-year limitation period began running against Smith on April 24, 1996 and ran unabated until April 22, 1997 (363 days), when he filed his habeas petition in the San Mateo County Superior Court. Even if the limitation period was then tolled under § 2244(d)(2) until 30 days after the Supreme Court of California denied his final habeas petition on May 26, 1999, Smith had just two days after June 27, 1999 to file a federal petition on time. He did not file until October 5, 1999. The petition is untimely.
CONCLUSION
For the foregoing reasons, respondent's motion to dismiss the petition as untimely again is GRANTED.
SO ORDERED.
JUDGMENT IN A CIVIL CASE
(X) Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.