Opinion
No. C 03-1478 CRB (PR)
October 22, 2003
John H. Deist Deputy Attorney General, San Francisco, CA
ORDER GRANTING MOTION TO DISMISS (Doc # 6)
Petitioner, a state prisoner incarcerated at High Desert State Prison in Susanville, California, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on June 19, 2003, the court found that petitioner's claims appeared colorable when liberally construed, and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent instead has moved to dismiss the petition as untimely under 28 U.S.C. § 2244(d), and petitioner has filed an opposition.
BACKGROUND
Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Santa Clara of various firearm violations. After a separate court trial, it was also found that petitioner suffered six prior felony convictions and, on November 4, 1999, he was sentenced to 25 years to life in state prison pursuant to California's Three Strikes Law.
On September 10, 2001, the California Court of Appeal affirmed the conviction and sentence, and, on November 28, 2001, the Supreme Court of California denied review. Petitioner sought no further relief from the state courts.
On April 7, 2003, petitioner filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996 and imposed for the first time a statute of limitation on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year time limit. Id. § 2244(d)(2).
A state prisoner with a conviction finalized after April 24, 1996, such as petitioner, ordinarily must file his federal habeas petition within one year of the date his process of direct review came to an end.See Calderon v. United States District Court (Beeler). 128 F.3d 1283, 1286 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly) 163 F.3d 530 (9th Cir. 1998) (en banc). Here, because petitioner did not seek a writ of certiorari from the Supreme Court of the United States after the Supreme Court of California denied review on November 28, 2001, his process of direct review came to an end on February 27, 2002, when the time allotted for filing a petition for a writ of certiorari expired. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The one-year limitation period accordingly began running against petitioner the next day, February 28, 2002.See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (calculating AEDPA's one-year limitation period according to Federal Rule of Civil Procedure 6(a)). The instant petition was not filed until April 7, 2003, however. It is untimely.
Petitioner claims that he is entitled to equitable tolling because: (1) he suffers from "trigeminal neuralgia" and is in constant pain; (2) he received his legal records from his appellate attorney on May 2002 and incorrectly assumed that the due date for his federal petition was a year from that date; (3) he did not receive notification from the Supreme Court of California; and (4) he was unable to seek legal assistance and attend the law library as needed due to frequent lockdowns and inaccessibility to persons who would assist him.
The one-year limitation period may be equitable tolled if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Beeler. 128 F.3d at 1288 (citation and internal quotation marks omitted). "The prisoner must show that the 'extraordinary circumstances' were the but — for and proximate cause of his untimeliness." Spitsyn v. Moore, No. 02-35543, slip op. 14687, 14692 (9th Cir. Oct. 3, 2003) (citations omitted). Equitable tolling is justified in few cases. "Indeed, the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation and internal quotation marks omitted). Petitioner "bears the burden of showing that this extraordinary exclusion should apply to him."Id.
See. e.g., Stillman v. LaMarque, 319 F.3d 1199, 1202 (9th Cir. 2003) (finding equitable tolling warranted where prison litigation coordinator promises prisoner's lawyer to obtain prisoner's signature in time for filing petition, but then breaks his promise, causing petition to be late); Corjasso v. Avers, 278 F.3d 874, 878 (9th Cir. 2002) (finding equitable tolling warranted where district court erroneously refused to accept petition for filing because of technical deficiency in cover sheet and lost body of petition by the time petitioner sent in corrected cover sheet); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (finding equitable tolling warranted where prison authorities failed to follow prisoner's request to draw filing fee for habeas petition from his trust account and mail it with petition to district court for filing).
Petitioner's purported "reasons for the delay in filing" do not merit equitable tolling in this case. Although regrettable, there is no indication whatsoever that petitioner's medical condition was the but-for and proximate cause of his untimeliness. Spitsyn, slip op. at 14692. The record in fact shows that petitioner prepared and filed the instant petition (as well as a timely opposition to respondent's motion to dismiss) despite his medical condition.
Petitioner's incorrect assumption that the due date for his federal petition was a year from that date on which he received his legal records from his appellate counsel does not justify equitable tolling. It is well-established that pro se status and ignorance of the law are not generally considered extraordinary circumstances entitling pro se prisoners to equitable tolling. See Felder v. Johnson, 204 F.3d 168, 172-73 n. 10 (5th Cir. 2000) (mere ignorance of the law or lack of knowledge of filing deadlines does not justify equitable tolling of AEDPA's limitation period) (citing cases); Cantu-Tzin v. Johnson, 162 F.3d 295, 299-300 (5th Cir. 1998) (pro se status during state habeas proceedings did not justify equitable tolling); see also Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy of pro se petitioner not sufficient cause to avoid procedural bar). And that counsel failed to advise petitioner of the due date for his federal petition does not compel a different conclusion. See Frye v. Hickman. 273 F.3d 1144, 1146 (9th Cir. 2001) (an attorney's miscalculation of the limitation period and negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling).
Where an attorney's conduct is egregious, as opposed to merely negligent, equitable tolling may be appropriate. See Spitsyn, slip op. at 14696-97 (equitable tolling warranted where attorney was retained to file and prepare petition, failed to do so, and disregarded requests to return files pertaining to petitioner's case until well after the date the petition was due). This was not such a case.
Petitioner's contention that he did not receive notification from the Supreme Court of California after the high court denied his petition for review on November 28, 2001 does not justify equitable tolling. Petitioner alleges that he received his legal records from his appellate attorney on May 2002. That petitioner did not receive a copy of the state high court's November 29, 2001 order denying review earlier was not the but-for and proximate cause of petitioner's eventual untimeliness.Spitsyn F, slip op. at 14692 After all, petitioner had more than nine months after he received his state records to file a federal petition on time.
Petitioner's general contention that he was unable to seek legal assistance and attend the law library "as needed" due to frequent lockdowns and inaccessibility to persons who would assist him does not justify equitable tolling. Prison officials typically provide prison law libraries or legal assistants to ensure that prisoners "have a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement."Lewis v. Casey, 518 U.S. 343, 356(1996). However, the Constitution does not guarantee a prisoner unlimited access to the law library or legal assistants. Prison officials of necessity must regulate the time, manner and place in which library facilities and legal assistant programs are used. See Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 858 (9th Cir. 1985). In addition, access to law libraries and legal assistant programs may be restricted of necessity by common prison occurrences such as lockdowns and placement in administrative segregation/solitary confinement. Not surprisingly, lockdowns, placement in administrative segregation/solitary confinement, and other common restrictions on access to the law library and legal assistant programs, generally do not qualify as "extraordinary circumstances." Lindo v. Lefever, 193 F. Supp.2d 659, 663 (E.D.N.Y. 2002). Petitioner's conclusory allegations that frequent lockdowns prevented him from accessing the law library and/or legal assistance "as needed" do not compel a different conclusion in this case.
As noted, petitioner alleges that he received his legal records from his appellate attorney on May 2002. Those records, including his state appellate proceedings, contained all of the bases for all of the claims petitioner eventually raised in his federal petition. Even if petitioner's access to the law library and legal assistance was restricted at times, it simply cannot be said, in view of the legal records he had in his possession since May 2002, that the periods of restricted access to the law library and legal assistance were the but-for and proximate cause of his untimeliness. Again, petitioner had more than nine months after he received his state records to file a federal petition on time. Cf. Lott v. Mueller, 304 F.3d 918, 920 (9th Cir. 2002) (finding equitable tolling warranted where prisoner received materials he needed to prepare his petition only 6 days before limitation period expired). Petitioner has not met his burden of showing that equitable tolling should apply to him.Miranda, 292 F.3d at 1065.
CONCLUSION
For the foregoing reasons, respondent's motion to dismiss the petition as untimely (doc # 6) is GRANTED.
The clerk shall enter judgment in favor of respondent and close the file.
SO ORDERED.