Opinion
REPORT AND RECOMMENDATION OF UNITED STATE 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
On March 23, 2015, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody, " bearing a signature date of March 17, 2015. On May 15, 2015, Respondent filed a "Motion to Dismiss, " asserting that the Petition is untimely. On May 29, 2015, Petitioner filed an "Opposition to Motion to Dismiss."
BACKGROUND
On February 6, 2013, a prison hearing officer found Petitioner guilty of "possession of dangerous property" (Lodgment 1, pp. 10-14). Petitioner unsuccessfully pursued an administrative appeal, which concluded on June 20, 2013 (Lodgment 2).
Almost a year later, on June 19, 2014, Petitioner assertedly mailed a habeas corpus petition to the Superior Court (Petition at 3). The Superior Court denied this petition on September 2, 2014 (Lodgment 3).
Approximately four months later, on January 3, 2015, Petitioner assertedly mailed a habeas corpus petition to the California Court of Appeal (Petition at 4). The Court of Appeal summarily denied this petition on January 8, 2015 (Lodgment 4).
Petitioner then assertedly mailed a habeas corpus petition to the California Supreme Court on January 11, 2015 (Petition at 4). The Supreme Court denied this petition summarily on March 11, 2015 (Lodgment 6).
Petitioner's assertion of a January 11, 2015 mailing date appears suspect because the signing and service date of Petitioner's California Supreme Court habeas petition was January 14, 2015 (Lodgment 5, pp. 57, 139). However, this discrepancy is immaterial to the analysis herein.
DISCUSSION
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.
Section 2244(d)(1)(D), not section 2244(d)(1)(A), generally governs the accrual of claims challenging a prison disciplinary decision. See Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004). Under section 2244(d)(1)(D), a claim challenging a prison disciplinary decision typically accrues no later than the conclusion of the administrative appeal. Id .; Tidwell v. Martel, 2013 WL 856734, at *2 (E.D. Cal. Mar. 6, 2013). The limitations period in the present case commenced running no later than June 21, 2013 (the day after the conclusion of Petitioner's administrative appeal), unless subsection B or C of 28 U.S.C. section 2244(d)(1) furnishes a later accrual date. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978 (2001).
Subsection B of section 2244(d)(1) is inapplicable. Petitioner does not allege, and the record does not show, that any illegal conduct by the state or those acting for the state "made it impossible for him to file a timely § 2254 petition in federal court." See Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009).
Subsection C of section 2244(d)(1) is also inapplicable. 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, 360 (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 28 U.S.C. 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)).
Accordingly, the statute of limitations began running on June 21, 2013, and, absent tolling or an equitable exception, would have expired on June 20, 2014. See Patterson v. Stewart, 251 F.3d at 1246. Petitioner constructively filed the present Petition on March 17, 2015. Therefore, absent sufficient tolling or an equitable exception, the Petition is untimely.
The Court assumes arguendo Petitioner constructively filed the present Petition on its signature date. See Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (prison mailbox rule applies to federal habeas petitions).
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 a conviction's finality and the filing of a petitioner's first state habeas petition. See Porter v. Ollison, 620 F.3d at 958. Here, the statute ran continuously from June 21, 2013, until Petitioner constructively filed his Superior Court petition on June 19, 2014.
The Court assumes arguendo that the pendency of Petitioner's Superior Court petition tolled the statute of limitations from June 19, 2014, through September 2, 2014. For the reasons discussed below, however, the statute of limitations thereafter expired in early September, 2014, prior to the filing of Petitioner's Court of Appeal petition.
In certain circumstances, a habeas petitioner may be entitled to "gap tolling" between a state court's denial of a habeas petition and the petitioner's filing of a "properly filed" habeas petition in a higher state court. See Carey v. Saffold, 536 U.S. 214, 219-221 (2002). However, an untimely state petition filed in the higher court is not "properly filed" for purposes of tolling under section 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 412-13 (2005); Carey v. Saffold, 536 U.S. at 225 (California state habeas petition filed after unreasonable delay not "pending" for purposes of section 2244(d)(2)); see also Evans v. Chavis, 546 U.S. 189, 191 (2006) ("The time that an application for state postconviction review is pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law") (citation omitted).
Where, as here, the higher state court denies the habeas petition without a "clear indication" that the petition was timely or untimely, a federal habeas court "must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Evans v. Chavis, 546 U.S. at 198; see also Stewart v. Cate, 757 F.3d 929, 935 (9th Cir.), cert. denied, 135 S.Ct. 341 (2014); Banjo v. Ayers, 614 F.3d 964, 969 (9th Cir. 2010), cert. denied, 131 S.Ct. 3023 (2011) ("We cannot infer from a decision on the merits, or a decision without explanation, that the California court concluded that the petition was timely.") (citation omitted).
In California, a habeas petition is timely if filed within a "reasonable time" after the petitioner learns of the grounds for relief. Carey v. Saffold, 536 U.S. at 235 (citations omitted). In Evans v. Chavis, the petitioner delayed over three years before filing his California Supreme Court habeas petition, and failed to provide justification for six months of the delay. Evans v. Chavis, 546 U.S. at 192, 201. The United States Supreme Court deemed the petition untimely, finding "no authority suggesting, ... [or] any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay reasonable.'" Id. at 201. Because California courts have given "scant guidance" on the issue, courts in this circuit apply a "thirty-to-sixty day benchmark" to determine the reasonableness of a delay in filing a subsequent state petition. Stewart v. Cate, 757 F.3d at 935 (citation, internal quotations and footnote omitted).
In the present case, Petitioner waited approximately four months following the Superior Court's denial before constructively filing a petition in the California Court of Appeal. The length of this unjustified delay well exceeds those gaps the Ninth Circuit has held to be have been unreasonable. See, e.g., Stewart v. Cate, 757 F.3d at 935-36 (no gap tolling for 100 day delay; benchmark for reasonableness of such delays remains 30-60 days); Stancle v. Clay, 692 F.3d 948, 956 (9th Cir. 2012), cert. denied, 133 S.Ct. 1465 (2013) (82 days); Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir.), cert. denied, 132 S.Ct. 554 (2011) (81 days); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (101 days). In accordance with these controlling authorities, Petitioner is not entitled to gap tolling between the Superior Court's September 2, 2014 denial and Petitioner's January 3, 2015 constructive filing of his habeas corpus petition in the California Court of Appeal. Hence, absent equitable tolling or an equitable exception to the statute of limitations, the present Petition is untimely.
Consequently, Petitioner's habeas corpus petitions filed in the California Court of Appeal and the California Supreme Court do not affect the statute of limitations analysis. State court applications for collateral review filed after the expiration of the statute of limitations 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); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.), cert. denied, 538 U.S. 949 (2003).
The Court observes that tolling under section 2244(d)(2) would not rescue the present Petition from the bar of limitations even if the Court were to apply gap tolling throughout Petitioner's state court litigation, which ended March 11, 2015.
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. at 418); 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 demonstrate entitlement to equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009).
Contrary to Petitioner's apparent argument, Petitioner's alleged ignorance of the law, lack of legal sophistication and lack of legal assistance cannot justify 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"); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 528 U.S. 1007 (1999) ("[N]either a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling.... It is irrelevant whether the unfamiliarity is due to illiteracy or any other reason"); Beltran v. Foulk, 2015 WL 1268322, at *3 (C.D. Cal. March 16, 2015) ("A prisoner's weak educational background or lack of literacy is not enough to establish an extraordinary circumstance"); Jimenez v. Hartley, 2010 WL 5598521, at *5 (C.D. Cal. Dec. 6, 2010), adopted, 2011 WL 164536 (C.D. Cal. Jan. 13, 2011) (allegations that petitioner was uneducated, illiterate and indigent insufficient); Oetting v. Henry, 2005 WL 1555941, at *3 (E.D. Cal. June 24, 2005), adopted, 2005 WL 2000977 (E.D. Cal. Aug. 18, 2005) ("Neither an inmate's ignorance of the law nor pro se status are the sort of extraordinary events upon which a finding of equitable tolling may be based"); Singletary v. Newland, 2001 WL 1220738, at *2 (N.D. Cal. Sept. 28, 2001) ("complete illiteracy does not even provide a sufficient basis for equitable tolling"); see also Loza v. Soto, 2014 WL 1271204, at *6 (C.D. Cal. Mar. 26, 2014) ("To allow equitable tolling based on the fact that most prisoners do not have legal knowledge or training would create a loophole that would negate the intent and effect of the AEDPA limitation period."); cf. Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy and pro se status insufficient cause to avoid procedural default).
The case petitioner cites, Brown v. Roe, 279 F.3d 742 (9th Cir. 2002), is inapposite. The Brown Court held only that the district court abused its discretion in refusing even to consider a new equitable tolling argument made by the petitioner in objections to the Magistrate Judge's recommendation. "The court in Brown did not consider whether the petitioner's alleged grounds for equitable tolling were sufficient to render the petition timely." Keesling v. McEwen, 2014 WL 1457717, at *6 n.4 (C.D. Cal. Feb. 5, 2014), adopted, 2014 WL 1457584 (C.D. Cal. Apr. 15, 2014).
Petitioner also argues for equitable tolling based on his previous, premature filing of a wholly unexhausted federal habeas petition, signed by Petitioner on January 18, 2015. See Vasquez v. Valenzuela, CV 15-528-JAK(E). Petitioner's argument plainly fails because: (1) as discussed above, the statute of limitations expired months before January of 2015; and (2) this Court promptly and correctly adjudicated the previous federal petition. See "Report and Recommendation of United States Magistrate Judge, " filed January 26, 2015, and adopted by Order and Judgment entered March 9, 2015; see also Rasberry v. Garcia, 448 F.3d at 1154 (federal court cannot stay a wholly unexhausted habeas petition).
Petitioner has not been diligent, and no "extraordinary circumstance" stood in Petitioner's way and prevented timely filing. Accordingly, the doctrine of equitable tolling does not rescue the present Petition from the bar of limitations. Absent an equitable exception to the bar, the Petition is untimely.
"[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, 133 S.Ct. 1924, 1928 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en banc). "[T]enable actual-innocence gateway pleas are rare." McQuiggin v. Perkins, 133 S.Ct. at 1928. The Court must apply the standards for gateway actual innocence claims set forth in Schlup v. Delo, 513 U.S. 298 (1995) ("Schlup"). See McQuiggin v. Perkins, 133 S.Ct. at 1928. "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror [or other trier of fact], acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id . (quoting Schlup, 513 U.S. at 329).
In order to make a credible claim of actual innocence, a petitioner must "support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup, 513 U.S. at 324; see also Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003), cert. denied, 541 U.S. 998 (2004) (holding that "habeas petitioners may pass Schlup's test by offering newly presented' evidence of actual innocence"); Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) ("[A] claim of actual innocence must be based on reliable evidence not presented at trial.").
"[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998); Calderon v. Thompson, 523 U.S. 538, 559 (1998); Muth v. Fondren, 676 F.3d 815, 819, 822 (9th Cir.), cert. denied, 133 S.Ct. 292 (2012). "The evidence of innocence must be so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'" Lee v. Lampert, 653 F.3d at 937-38 (quoting Schlup, 513 U.S. at 316). The court must consider "all the evidence, old and new, incriminating and exculpatory, ' admissible at trial or not." Lee v. Lampert, 653 F.3d at 938 (quoting House v. Bell, 547 U.S. 518, 538 (2006)). The court must make a "probabilistic determination about what reasonable, properly instructed jurors [or others trier of fact] would do." Id . (quoting House v. Bell, 547 U.S. at 538).
In the present case, Petitioner does not qualify for the actual innocence exception. Petitioner has not presented any new reliable evidence of his alleged factual innocence, much less evidence sufficiently compelling to meet Schlup's exacting standard.
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
In view of the recommended disposition, Petitioner's request for discovery, request for an evidentiary hearing and request for the appointment of counsel are denied.
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.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.