Opinion
Ernest Freeman, III, Petitioner, Pro se, Norco, CA.
For C Tampkins, Respondent: David Zarmi, CAAG - Office of Attorney General, Los Angeles, CA; Kenneth C Byrne, CAAG - Office of Attorney General, California Department of Justice - Supervising Deputy AG, Los Angeles, CA; Lance E Winters, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO DISMISS ACTION AS UNTIMELY
Hon. Jay C. Gandhi, United States Magistrate Judge.
I .
INTRODUCTION AND SUMMARY
On October 20, 2013, petitioner Ernest Freeman III (" Petitioner"), a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (" Petition"). [Dkt. No. 1.] On December 20, 2013, the Court filed a Report and Recommendation (" R& R"), recommending that the Petition be dismissed as untimely. [Dkt. No. 5.] On January 9, 2014, Petitioner filed an Objection to the R& R, which raised doubts as to whether Petitioner's limitation period had been sufficiently tolled. [Dkt. No. 6.] Accordingly, on June 12, 2014, the Court vacated its R& R. [Dkt. No. 8.]
In determining the filing date of a petition, pro se prisoners are entitled to the benefit of the " mailbox rule, " which dictates that a document's constructive filing date is the date it was presented to prison authorities for mailing to the court. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (prisoner's notice of appeal deemed filed on the date it was delivered to prison staff for delivery to the court); Huizar v. Carey, 273 F.3d 1220, 1223 (9th Cir. 2001) (noting that mailbox rule applies when prisoners file habeas petitions in federal or state court).
On September 9, 2014, Respondent filed a Motion to Dismiss the Petition (" Motion"), asserting that the Petition is indeed barred by the one-year limitation period set forth in 28 U.S.C. § 2244(d). [Dkt. No. 17.]
Pursuant to Local Rule 7-12, the Court deems Petitioner's failure to file an Opposition as consent to the granting of the Motion.
Now, as detailed below, the Court recommends that the Petition be dismissed with prejudice as untimely.
II .
STATE COURT PROCEEDINGS
On July 15, 2008, Petitioner was convicted of assault with a deadly weapon. (Lodg. No. 1.) Petitioner was also found to have personally inflicted great bodily injury under circumstances involving domestic violence. (Id.) On July 31, 2008, Petitioner was sentenced to state imprisonment for 13 years. (Id.)
On December 10, 2009, the California Court of Appeal affirmed the conviction, but remanded for resentencing. (Lodg. No. 2 at 8-9.) On January 7, 2010, Petitioner filed a petition for review in the California Supreme Court, which was summarily denied on February 18, 2010. (Lodg. Nos. 3, 4.)
On October 21, 2010, the Superior Court resentenced Petitioner to state imprisonment for 15 years. (Lodg. No. 6.)
In December 2010, Petitioner timely filed a notice of appeal, which was improperly rejected as untimely. ( See Lodg. No. 9 at 5-6.) On September 14, 2011, the Court of Appeal granted Petitioner until October 14, 2011, to re-file a notice of appeal. (Lodg. No. 10.) On September 24, 2011, Petitioner filed a timely notice of appeal. (Lodg. No. 11.)
On March 14, 2012, Petitioner filed a request to dismiss his appeal. (Lodg. No. 12.) Accordingly, on March 15, 2012, the Court of Appeal dismissed Petitioner's appeal. (Lodg. No. 13.)
On May 14, 2012, Petitioner filed a habeas petition in Los Angeles County Superior Court. (Lodg. No. 14.) The petition was denied on May 30, 2012. (Lodg. No. 15.) Subsequently, Petitioner filed habeas petitions in the California Court of Appeal and the California Supreme Court on June 20, 2012, and September 6, 2012, respectively. (Lodg. Nos. 16, 18.) Those petitions were denied on August 16, 2012, and November 28, 2012, respectively. (Lodg. Nos. 17, 19.)
Petitioner filed the instant Petition on October 20, 2013. (Pet. at 27.)
For ease of reference, the Court numbers the Petition's pages sequentially as pages 1-44.
III .
DISCUSSION
A. AEDPA's Limitation Period
Under the Anti-Terrorism and Effective Death Penalty Act (" AEDPA"), a federal petition for writ of habeas corpus ordinarily must be filed within one year of the date on which the state court judgment becomes " final, " i.e., within a year of the conclusion of direct appellate review, or of the expiration of time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).
This limitation period is tolled during the pendency of properly filed applications for state post-conviction review, such as state habeas petitions. 28 U.S.C. § 2244(d)(2). In " rare cases, " the limitation period is also subject to equitable tolling. Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014).
B. Petitioner's Limitation Period
Under § 2244(d)(1)(A), Petitioner's conviction became final, at the latest, on March 26, 2012, i.e., when time expired for Petitioner to file a petition for review in the California Supreme Court. See Walters v. Hedgepeth, 2010 WL 3293703, at *2 (N.D. Cal. Aug. 19, 2010) (noting that Court of Appeal's order granting voluntary dismissal is final upon filing and, even assuming petitioner could seek review of such an order, petition for review would be due within 10 days of dismissal) (citing Cal. R. Ct. 8.366(b)(2)(B), 8.500(e)(1)); but see Morales v. Paramo, 2013 WL 5427974, at *2 (C.D. Cal. Sept. 24, 2013) (holding that limitation period began to run on date Court of Appeal granted voluntary dismissal).
Petitioner has alleged no facts suggesting that any later event may have triggered AEDPA's limitation period. See 28 U.S.C. § 2244(d)(1)(B)-(D).
However, Petitioner did not file this Petition until October 20, 2013, more than a year and a half after his conviction became final for AEDPA purposes. (Pet. at 27.) Hence it is facially untimely. See 28 U.S.C. § 2244(d)(1)(A).
Thus, unless Petitioner is entitled to statutory tolling and/or equitable tolling, the Petition must be dismissed. See Diaz v. Beard, 2014 WL 231924, at *1 (S.D. Cal. Jan. 21, 2014).
C. Statutory Tolling
As a general matter, AEDPA's limitation period is tolled during the pendency of one full round of state collateral review, which includes the intervals between any lower court decision and the filing of a subsequent petition in a higher court, so long as Petitioner does not unreasonably delay in filing. Callender v. Knipp, 2014 WL 435971, at *3 (C.D. Cal. Jan. 30, 2014).
AEDPA's limitation period is not tolled, however, between the date a petitioner's conviction becomes final for AEDPA purposes, and the filing of his first state habeas petition. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010).
Here, Petitioner's limitation period ran for 48 days between March 26, 2012, i.e., the date Petitioner's conviction became final for AEDPA purposes, and May 14, 2012, i.e., the date Petitioner filed his first state habeas petition. See supra .
Because Petitioner filed habeas petitions in the California Court of Appeal and the California Supreme Court within a month, in each case, of the lower courts' respective denials, his AEDPA limitation period was tolled for the entire round of state collateral review. See Callender, 2014 WL 435971, at *3; Velasquez v. Kirkland, 639 F.3d 964, 967-68 (9th Cir. 2011) (observing that delays of 30 to 60 days are presumptively reasonable).
The California Supreme Court denied Petitioner's last state habeas petition on November 28, 2012. (Lodg. No. 19.) Thus, Petitioner had until October 11, 2013 -- i.e., 317 days after November 28, 2012 -- to file a federal habeas petition. See 28 U.S.C. § 2244(d)(2).
But Petitioner filed his Petition on October 20, 2013 -- nine days late. (Pet. at 27.)
Accordingly, Petitioner's facially untimely Petition is not saved by statutory tolling. See 28 U.S.C. § 2244(d)(2).
D. Equitable Tolling
As a rule, AEDPA's limitation period is subject to equitable tolling only if Petitioner can show that (1) he pursued his rights diligently and (2) an " extraordinary circumstance prevented timely filing." Yeh, 751 F.3d at 1077.
Here, Petitioner claims that he is entitled to equitable tolling because he " diligen[tly] [sought] to obtain papers and to submit a petition" but " was not allowed to do so." [Dkt. No. 6 at 2.]
Generally, while deprivation of legal materials may warrant equitable tolling, Petitioner bears the burden of showing (1) his own diligence and (2) that the hardship caused by his lack of access was an " extraordinary circumstance" that prevented timely filing. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir. 2009).
Here, Petitioner fails to specify, among other things, (1) the particular papers he was unable to obtain, (2) why he needed them, (3) when he lacked access to them, (4) where they were, or (5) who possessed them.
Moreover, the Court questions the merits of Petitioner's lack-of-access claim. Significantly, the Petition's supporting memorandum and exhibits appear entirely photocopied, or copied verbatim, from Petitioner's state court filings, to which Petitioner evidently had access during the full round of state collateral review. ( Compare Pet. 13-25, 28-42, with Lodg. Nos. 3, 14, 16, 18.)
In sum, Petitioner's vague and conclusory assertion " [has] no evidentiary support and [is] manifestly insufficient to warrant equitable tolling." See Cabrera v. Pennywell, 2014 WL 1271208, *4 (C.D. Cal. Mar. 24, 2014); see also Williams v. Dexter, 649 F.Supp.2d 1055, 1061-62 (C.D. Cal. 2009) (denying equitable tolling where claim was " unsupported by competent evidence and ... grossly conclusory"); Evans v. Adams, 423 F.Supp.2d 1087, 1091 (C.D. Cal. 2006) (denying equitable tolling where petitioner " provided absolutely no evidentiary support for his equitable tolling claim, and [did] not even bother[] to assert sufficient facts to suggest [such] tolling might be warranted").
Thus, Petitioner has failed to establish that he is entitled to equitable tolling. See Yeh, 751 F.3d at 1077.
Accordingly, the Court concludes that the Petition is untimely. See 28 U.S.C. § 2244(d).
IV .
CERTIFICATE OF APPEALABILITY
Additionally, for the reasons stated above, the Court finds that Petitioner has not shown that reasonable jurists would find it debatable whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). The Court thus declines to issue a certificate of appealability.
V .
RECOMMENDATION
In accordance with the foregoing, IT IS RECOMMENDED that the Court issue an Order: (1) approving and accepting this Report and Recommendation; (2) directing that Judgment be entered dismissing this action with prejudice; and (3) denying a certificate of appealability.