Opinion
6:20-cv-01894-YY
06-13-2022
MICHAEL VARELA, Petitioner, v. BRANDON KELLY, Respondent.
FINDINGS AND RECOMMENDATION
Youlee Yim You, United States Magistrate Judge.
FINDINGS
Petitioner, an adult in the custody of the Oregon Department of Corrections, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ of Habeas Corpus should be DENIED.
I. Background
On October 2, 2014, a Clackamas County grand jury indicted Petitioner on one count of Murder and two counts of Attempted Aggravated Murder. Respondent's Exhibits, ECF No. 16 (“Resp. Exh.”), 102. Petitioner entered into a plea agreement whereby he pleaded guilty to Manslaughter in the First Degree, Attempted Aggravated Murder, and Attempted Aggravated Assault. Resp. Exh. 103, 104, 105, 106 at 2. The trial court imposed a sentence totaling 276 months of imprisonment. Resp. Exh. 101. Judgment in the criminal prosecution was entered on January 21, 2015. Resp. Exh. 101, p. 5.
Petitioner did not file a direct appeal. On November 8, 2016, over twenty-one months after entry of judgment in the criminal case, Petitioner contacted his trial attorney's office and requested a “complete copy of the entire case file” from his criminal case. On December 15, 2016, counsel sent Petitioner copies of motions, court notices, and pleadings associated with the case, and told Petitioner that redacted discovery had been previously provided to him when he was in custody at the Clackamas County Jail before the plea agreement was reached. Resp. Exh. 108, p. 10.
Petitioner subsequently filed a bar complaint with the Oregon State Bar Association, in which he complained that his trial attorney had failed to provide documents he needed for his state post-conviction relief (“PCR”) petition, which was due by January 22, 2017. On January 17, 2017, Petitioner wrote to his attorney again, itemizing the materials he needed.
Petitioner attempted to obtain an extension of time to file his PCR petition, expressing his wish to “formally initiate post-conviction proceedings without filing a post-conviction petition,” but on three occasions, January 5, 2017, February 9, 2017, and March 8, 2017, the Marion County Circuit Court informed him the court could not initiate PCR proceedings without a formal Petition for Post-Conviction Relief. Resp. Exh. 108, pp. 5, 7, 9.
Petitioner ultimately filed a PCR petition that was dated April 12, 2017, and docketed on April 25, 2017, in Marion County Circuit Court Case No. 17CV18702. Resp. Exh. 108. Petitioner acknowledged the PCR petition was untimely, but urged the PCR trial court to hear the petition, explaining that he could not file his petition sooner because he lacked the means to properly state his legal claims without discovery from his criminal trial attorney. Resp. Exh. 108, p. 2.
The PCR trial court appointed counsel, who filed an affidavit pursuant to Or. Rev. Stat. § 138.590(5) asserting that the original petition could not be construed to state a ground for relief. Resp. Exh. 109. The state moved to dismiss on grounds that the petition was untimely and failed to state a claim. Resp. Exh. 110. Following a hearing, the PCR trial judge granted the state's motion to dismiss the petition as untimely. Resp. Exhs. 113, 114. Petitioner appealed, and the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Varela v. Kelly, 303 Or.App. 815, rev. denied, 366 Or. 827 (2020). The PCR appellate judgment was entered on October 6, 2020. Resp. Exh. 119.
That statute provides in pertinent part: “If appointed counsel believes that the original petition cannot be construed to state a ground for relief under ORS 138.510 to 138.680, and cannot be amended to state a ground for relief, counsel shall, in lieu of moving to amend the petition, inform the petitioner and notify the circuit court of counsel's belief by filing an affidavit stating the belief and the reasons therefor with the clerk of the circuit court.”
On October 23, 2020, Petitioner signed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, which was entered in this court's docket on November 2, 2020. ECF No. 1. Respondent argues that the Petition is untimely under 28 U.S.C. § 2244(d)(1), and asks the court to dismiss on this basis. Petitioner concedes the Petition was not timely filed, but argues he is entitled to equitable tolling of the limitations period.
II. Legal Standards
Generally, a prisoner must file a federal habeas petition challenging a state court conviction within one year after the challenged conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). When a petitioner has not timely filed a petition, equitable tolling may be available to toll the limitation period. Holland v. Florida, 560 U.S. 631, 645 (2010). A litigant seeking to invoke equitable tolling must establish: (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstances prevented him from timely filing his petition. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
III. Discussion
Petitioner first contends that the federal one-year statute of limitations is unfair to petitioners who unwittingly take advantage of Oregon's two-year statute of limitations for PCR petitions and then find themselves time-barred from seeking federal habeas review. This argument, however, has been rejected by the Ninth Circuit, as cases in this court have repeatedly recognized. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (rejecting the argument that § 2244(d)(1) creates a “trap” for Oregon habeas petitioner who seek PCR remedies within the state two-year limitations period and are subsequently time-barred from seeking federal review); Ross v. Bowser, No. 2:19-cv-01116-AA, 2021 WL 5829021, at *3 (D. Or. Dec. 8, 2021) (applying Ferguson and recognizing that this “argument has been rejected by the Ninth Circuit and does not support equitable tolling”); Drollinger v. Nooth, No. 2:13-cv-01756-ST, 2015 WL 518625, at *3 (D. Or. Feb. 4, 2015) (citing Ferguson and holding, “The simple fact that Oregon allows a prisoner two years to file a state PCR action, while AEDPA's one-year statute of limitations is only one year, does not excuse an untimely federal habeas filing.”).
Petitioner further argues that he pursued his remedies diligently, sending requests to his trial attorney for discovery materials over two months before his state PCR petition was due. Petitioner's requests to counsel, however, did not commence until November 2016, nearly nine months after the federal limitation period had expired. Therefore, Petitioner has not established that trial counsel's failure to respond to his requests was the cause of the untimely filing of his federal petition. See, e.g., Roberts v. Marshall, 627 F.3d 768, 772 (9th Cir. 2010) (holding “[a] petitioner seeking equitable tolling bears the burden of showing both that there were ‘extraordinary circumstances,' and that the extraordinary circumstances were the cause of his untimeliness”) (emphasis in original, citation omitted).
Finally, petitioner argues he is entitled to equitable tolling due to “his reliance on the incomplete and inaccurate advice he received from attorneys and inmate legal assistants.” Petitioner faults his criminal trial attorney for failing to advise him of his federal remedies, and faults his PCR trial counsel for failing to advise him about the unavailability of statutory tolling of the federal statute of limitations. Petitioner does not, however, identify any authority for the proposition that either his criminal trial attorney or post-conviction counsel had a duty to advise him as to the federal limitations period. See Sumner v. Steward, No. 3:14-cv-00627-HZ, 2015 WL 1609398, at *3 (D. Or. Apr. 6, 2015) (“Petitioner provides no authority for the proposition that a state PCR attorney is obligated to advise a client regarding the AEDPA's statute of limitations.”); Jackson v. Nooth, No. 2:13-cv-00798-ST, 2014 WL 4983666, at *4 (D. Or. Oct. 1, 2014) (explaining that direct appeal counsel was “under no duty” to advise petitioner as to the AEDPA one-year limitations period). Even if petitioner presented evidence that his attorneys misadvised him regarding the federal statute of limitations, the Supreme Court has explained that “[a]ttorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no right to counsel.” Lawrence v. Florida, 549 U.S. 327, 336-37 (2007); see also Maples v. Thomas, 565 U.S. 266, 282 (2012) (recognizing “that an attorney's negligence, for example, miscalculating a filing deadline, does not provide a basis for tolling a statutory time limit”); Frye v. Hickman, 273 F.3d 1144, 1145 (9th Cir. 2001) (“We conclude that the miscalculation of the limitations period by Frye's counsel and his negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling.”). Moreover, petitioner's argument that he was misadvised by inmate legal assistants is similarly unavailing; “[i]f attorney negligence could not equitably toll the limitation period, certainly noncounsel jailhouse lawyer [negligence] does not toll it” Dalton v. Adams, No. 2:16-cv-3042 KJM GGH, 2017 WL 5997600, at *4) (E.D. Cal. Dec. 4, 2007).
In sum, Petitioner has not established that he pursued his rights diligently or that some extraordinary circumstances prevented him from timely filing his petition in this court. Accordingly, he is not entitled to equitable tolling of the AEDPA one-year statute of limitations.
IV. Request for Evidentiary Hearing to Establish Actual Innocence
In his Sur-Reply, petitioner asks, for the first time, for an evidentiary hearing and opportunity to present evidence of actual innocence to excuse his untimeliness. “[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, 569 U.S. 383, 386 (2013); see also Lee v. Lampert, 653 F.3d 929, 931 (9th Cir. 2011) (holding that a credible showing of “actual innocence” under the standards established in Schlup v. Delo, 513 U.S. 298 (1995) excuses the AEDPA's statute of limitations). In evaluating a claim of actual innocence, the court must consider all of the evidence, both old and new, and determine whether “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327. This is an exacting standard that is satisfied “only in the extraordinary case.” House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks omitted).
In his request for an evidentiary hearing, Petitioner does not provide any evidence of innocence, but instead “maintains that he is actually innocent of the offenses for which he was convicted and requests an opportunity to personally address the Court on the reasons he pleaded guilty.” Sur-Reply to Respondent's Reply (ECF NO. 37), pp. 5-6. He further states that,
“[s]hould the Court grant his request for an evidentiary hearing, he would testify regarding the facts that demonstrate his actual innocence of the various offenses, including information that calls into question the veracity of the witnesses.” Id. at 6. This is not “new reliable evidence” that Petitioner is actually innocent, and he otherwise fails “to show what . . . an evidentiary hearing might reveal of material import on his assertion of actual innocence.” Gandarela v. Johnson, 286 F.3d 1080, 1087 (9th Cir. 2002); see also Parker v. Ryan, No. CV-15-1130-PHX-JAT (JFM), 2016 WL 11431549, at *10 (D. Ariz. June 8, 2016) (holding it is not sufficient for a petitioner to claim actual innocence if he fails to proffer anything other than conclusory allegations to support a claim of actual innocence), report and recommendation adopted, 2016 WL 4190737 (D. Ariz. Aug. 9, 2016), cert. of appealability denied, 2017 WL 4124974 (9th Cir. 2017). For these reasons, an evidentiary hearing is not warranted. See Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (explaining that a habeas petitioner “should receive an evidentiary hearing when he makes a good-faith allegation that would, if true, entitle him to equitable tolling”).
RECOMMENDATION
The Petition for Writ of Habeas Corpus (ECF No. 1) should be DENIED as untimely, and a judgment of dismissal should be entered. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should be DENIED. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due by June 27, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, which date is earlier, the Findings and Recommendations will go under advisement.