Opinion
Case No. EDCV 10-1131-AG (JPR)
02-04-2013
ANTON JAMEL COLLINS, Petitioner, v. ANTHONY HEDGPETH, Warden, Respondent.
I HEREBY CERTIFY THAT THIS DOCUMENT WAS SERVED BY FIRST CLASS MAIL POSTAGE PREPAID, TO ALL COUNSEL (OR PARTIES) AT THEIR RESPECTIVE MOST RECENT ADDRESS OF RECORD IN THIS ACTION ON THIS DATE. ______________
DEPUTY CLERK
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed de novo the Petition, records on file, and Report and Recommendation of the U.S. Magistrate Judge. On July 26, 2012, Petitioner filed what he styled as "Response to Respondent's Motion to Dismiss Writ of Habeas Corpus" but which the Magistrate Judge construed as his objections to her Report and Recommendation. In that pleading, Petitioner argued for the first time that he was entitled to equitable tolling, for two reasons: (1) someone misinformed him about his filing deadlines and (2) his institution was on periodic lockdowns during the AEDPA limitation period and he therefore could not access the prison law library as much as he needed. Petitioner attached a declaration to his pleading providing a bit of information concerning the lockdowns; he stated that a "declaration Attachment" provided support for his first argument. (July 26, 2012 Resp. at 2.)
On August 9, 2012, the Magistrate Judge issued a minute order noting that Petitioner's declaration did not itself include any information about having been misinformed about filing deadlines and that nothing had been attached to the declaration. Accordingly, the Magistrate Judge gave Petitioner 14 days to file with the Court whatever attachment he had referred to, and Respondent a few weeks after that to file a supplemental brief addressing Petitioner's equitable tolling arguments. On August 22, 2012, Petitioner filed a "Request for Extension to File Reply to Respondent's Answer to Habeas Petition," claiming that he had no access to the law library. The Magistrate Judge denied the Request both because no reply was then due and because, to the extent Petitioner sought an extension of time to file his declaration attachment, he did not need access to the law library. On September 5, 2012, Respondent filed a "Response to Petitioner's Objections to the Report and Recommendation."
Petitioner is not entitled to equitable tolling in regard to the two claims he seeks to amend into his Petition, both of which concern events Petitioner has been aware of since before his conviction became final. As to Petitioner's first reason why he deserves tolling, he has never explained who allegedly misinformed him of his filing deadlines or what exactly they said. He has provided no support for the argument, not even his own declaration. Accordingly, that reason cannot justify equitable tolling. See also Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding that equitable tolling not appropriate simply because petitioner is ignorant of the law). Petitioner also does not deserve tolling because of the periodic lockdowns his prison endured from March 2008 to December 2010. Petitioner has provided no information concerning when those lockdowns took place or for how long they lasted. Moreover, as Respondent points out, during that time period Petitioner was able to file a pro se brief in the California Court of Appeal, on July 7, 2008 (Lodged Doc. 6); a habeas petition in the California Supreme Court, on August 13, 2008 (Lodged Doc. 9); and his federal Petition, on July 22, 2010. Clearly, then, he had some access to the law library and could have more timely pursued the two claims he now seeks to add to the Petition. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (affirming district court's rejection of equitable tolling argument based on mental incompetency because inmate managed to file several petitions for post-conviction relief in state court, alleging same arguments as in federal petition, during federal limitation period), cert. denied 132 S. Ct. 286 (2011); Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (rejecting equitable tolling argument because inmate was able to file lengthy and well-researched motion in federal court and successful discovery motion in state supreme court during time he claimed he was unable to prepare federal petition).
Respondent seems to imply that the Magistrate Judge mistakenly believed that Petitioner had said he had attached a declaration to his objections to the Report and Recommendation but in fact did not. (Sept. 5, 2012 Resp. at 2.) What the Magistrate Judge actually noted, correctly, was that Petitioner alluded to an attachment to his declaration but in fact nothing was attached to the declaration. The declaration itself contains no information concerning someone misstating filing deadlines. It refers only to the prison lockdowns.
Having made a de novo determination of those portions of the Report and Recommendation to which Petitioner has filed objections, the Court accepts the findings and recommendations of the Magistrate Judge.
IT THEREFORE IS ORDERED that (1) Petitioner's motion to amend the Petition is DENIED and (2) Petitioner shall file a Reply to the Answer within 3 0 days of this Order, addressing only the claims in the original Petition.
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ANDREW GUILFORD
U.S. DISTRICT JUDGE