Opinion
Civil No. 03-1101-CO
April 9, 2004
FINDINGS AND RECOMMENDATION
Petitioner is in the custody of the Oregon Department of Corrections pursuant to the Judgment of Conviction and Sentence Order, dated August 26, 1996, from Clackamas County Circuit Court Case No. CR 9501905, after convictions for Sodomy in the First Degree (eight counts), Sexual Abuse in the First Degree (seven counts), Rape in the First Degree (three counts) and Unlawful Penetration in the First Degree (two counts).
The Oregon Court of Appeals affirmed petitioner's convictions without opinion, State v. Johnson, 155 Or. App. 488 (1998) and the Oregon Supreme COurt denied review. 328 Or. 40 (1998). The appellate judgment was issued on January 5, 1999.
Petitioner filed a petition for post-conviction relief in Malhuer County Circuit Court Case No. 990930837M, but the court denied relief. The Oregon Court of Appeals affirmed without opinion, Thunderbird v. Lampert, 180 Or. App. 613 (2002), and the Oregon Supreme Court denied review. 334 Or. 492 (2002) The appellate judgment issued on September 16, 2002.
Petitioner filed a petition under 28 U.S.C. § 2254 challenging his convictions on various grounds. See, Petition (#1). Respondent moves to deny the petition and dismiss this proceeding on the ground that petitioner did not file his petition within the time allowed by 28 U.S.C. § 2244.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which became effective on April 24, 1996, amended 28 U.S.C. § 2244 to provide a limitations period for filing federal habeas corpus petitions. Under § 2244(d) as amended, a petitioner now has one year from the date a direct appeal is final to file a federal habeas corpus. The one year limitations period is tolled during the time a state collateral proceeding is pending. 28 U.S.C. § 2244(d)(2) Time elapsed after the final judgment and before a collateral filing, and time after final collateral disposition and before federal filing counts against the year. Nino v. Galaza, 183 F.3d 1003, 1006-7 (9th Cir. 1999).
In this case, petitioner's direct appeal was final in the state appellate court on January 5, 1999. Respondent's Exhibit 103. However, following the Ninth Circuit's ruling in Bowen v. Roe, 188 F.3d 1157 (1999), the statute of limitations does not begin to run until petitioner's time to seek certiorari from the United States Supreme Court has expired. Therefore, in calculating the limitations period, it is appropriate to add an additional 90 to the date of the appellate judgment. Thus, the statute of limitations began to run on petitioner's claim on April 5, 1999.
Petitioner had one year from April 5, 1999, excluding any time during which a state post-conviction case was pending, to file a federal habeas corpus petition. Petitioner filed his petition for post-conviction relief on September 30, 1999. Between April 5, 1999, the final day on which petitioner could have sought certorari, and September 30, 1999, the date on which the post conviction petition was filed, 178 days expired. Between September 16, 2002, the date on which the appellate judgment in the post-conviction appeal issued, and August 13, 2003, the date on which petitioner filed the petition in this proceeding, 331 days expired. Thus, in sum, 509 "countable" days accrued before petitioner filed his federal habeas corpus petition. Thus, the petition was not filed within the limitations period of 28 U.S.C. § 2244(d).
Petitioner filed three federal habeas petitions in March 2003, each of which was dismissed without prejudice in May and June 2003. The 28 U.S.C. § 2244(d)(2) limitations period is not tolled during the pendency of a federal habeas corpus petition.See, Duncun v. Walker, 533 U.S. (2001). However, petitioner is untimely even if the time during which the earlier petitions were pending tolled the limitations period.
The AEDPA's limitations period may be equitably tolled if extraordinary circumstances beyond a prisoner's control made it impossible to file a petition on time. Miranda v. Castro, 292 F.3d 1060 (9th Cir. 2002); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). In order to establish entitlement to tolling of the § 2241(d)(1) limitations period, a petitioner must demonstrate that extraordinary circumstances beyond the prisoner's control made it impossible to file the petition on time. Allen v. Lewis, 255 F.3d 798, 799 (9th Cir. 2001);see also, Green v. White, 223 F.3rd 1001, 1003 (9th Cir. 2000).
Petitioner in this case has not established either circumstances. Petitioner's argument that his attorney did not advise him of the AEDPA limitations is unavailing. See, Miranda v. Castro, supra; Frye v. Hickman, 273 1144 (9th Cir. 2001), cert denied, 535 U.S. 1055 (2002). Moreover, petitioner concedes that he learned of the AEDPA in "mid-1998." Petitioner's Points and Authorities (#14) p. 4.
Petitioner also argues that he lacked access to a law library or other legal materials that would have informed him of the AEDPA's limitations period. However, "[a] bald assertion of lack of access to library materials does not automatically qualify as grounds for equitable tolling." Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000); Frye v. Hickman, supra (emphasis on "a more fact-specific inquiry"). Petitioner's contention that he lack adequate access to legal materials is contradicted as a factual matter in the record before the court.
Petitioner acknowledges that he received an "information packet of AEDPA" (sic) "around the first of 1999." See, Points and Authorities (#14) p. 5. In addition, the affidavit of Kent Ward establishes that prisoners at SRCI were provided with with legal services through a contract with an attorney beginning on September 15, 1997 through September 1998. See, Reply to Petitioner's Traverse (#25) Attachment 1.
I find based on the entire record before the court that inmates at SRCI had access to a law library, legal resource materials, inmate legal assistance, pleading forms and supplies, photo-copying and mailing services at all times during the limitations period relevant to petitioner's claim.
I note that in U.S.D.C. No. 02-98-JE, Magistrate Judge Jelderks recently rejected a petitioner's argument that the AEDPA's statute of limitations should be equitably tolled because inmates at SRCI lacked adequate to legal resources and allegedly received inadequate assistance of counsel. See, Reply to Petitioner's Traverse (#25) Attachment 2.
Finally, petitioner apparently contends that the limitations period should be tolled because he was too sick or blind to file a timely petition. Again, petitioner's argument is contradicted by the factual record before the court.
Petitioner has not submitted any evidence of his alleged infirmities, except for his own self-serving statements which are contradicted by his concession that he was an inmate legal assistant for approximately six years beginning in 1997. Moreover, petition was apparently not too sick or blind to file a timely post-conviction relief petition or to vigorously prosecute civil rights cases in this court. See, Civ. No. 96-6130-TC, 99-675-AA, and 01-6081-AA.
Based on all of the foregoing, I find that petitioner's claim for habeas corpus relief is barred by the statute of limitations set forth in 28 U.S.C. § 2244(d) and that he has not established entitlement to a tolling of the limitations period. Petitioner's Petition (#1) should be denied. This proceeding should be dismissed.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties have ten (10) days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.