Opinion
2:16-cv-02226-SB
05-27-2020
RICHARD F. WEAVER, Petitioner, v. BRIGITTE AMSBERRY, Superintendent, Two Rivers Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
STACIE BECKERMAN United States Magistrate Judge
BACKGROUND
On October 24, 2011, Petitioner pleaded guilty to one count of Attempted Aggravated Murder and two counts of Robbery in the First Degree. (Resp't Ex. 103 at 1.) The same day, the court sentenced Petitioner to a custodial term of 300 months. (Resp't Ex. 101 at 6-11.) Judgment entered on October 25, 2011. (Id.) An amended judgment entered on January 5, 2012, specifying the amount of restitution Petitioner owed. (Resp't Ex. 101 at 3-5.)
On October 26, 2011, Petitioner wrote to the Office of Public Defense Services (“OPDS”) to request assistance filing a direct appeal. (Decl. of Richard Weaver (“Pet'r's Decl.”) (ECF No. 49-1), Ex. 4 at 7.) Petitioner detailed multiple claims he wished to raise, including challenges to the adequacy of trial counsel's representation, the voluntariness of his guilty plea, and the length of his pretrial incarceration. (Id. at 8-9.) Petitioner also sought a copy of his file from his trial counsel (“Trial Counsel”), to “facilitate his appeal, and later his post-conviction case.” (Pet'r's Ex. B (ECF No. 31) at 4; Pet'r's Decl. ¶ 9.) In the months that followed, Trial Counsel did not provide the file, nor did he provide an explanation as to why he was withholding the file. (Pet'r's Ex. B at 4.)
On November 8, 2011, OPDS answered Petitioner's letter, requesting that he identify by November 29, 2011 any colorable claims of error properly subject to direct review. (Id. at 6.) Petitioner apparently failed to respond, and no appeal was filed. (Pet'r's Decl. ¶ 8; Ex. 4 at 4-5.) In a closing letter to Petitioner dated December 2, 2011, OPDS outlined the remaining avenues of relief-state post-conviction relief (“PCR”) and federal habeas corpus-and provided contact information for the Federal Public Defender to answer any questions regarding a possible federal remedy. (Id.)
By January 2012, Trial Counsel remained unresponsive to Petitioner's request for his file. (Pet'r's Ex. E (ECF No. 50-1) at 6; Pet'r's Decl. ¶¶ 9-12.) Petitioner nevertheless contacted the Federal Public Defender and requested a copy of the Post-Conviction Relief Manual. (Decl. of Neysa Bogar (“Bogar Decl.”) (ECF No. 49-2) ¶ 6, Ex. 1 at 3; Pet'r's Decl. ¶ 10.) In response, the Federal Public Defender provided Petitioner with a document entitled “Preserving Your Issues for Federal Habeas Corpus.” (Bogar Decl. ¶ 4; Pet'r's Decl. ¶ 10.)
On April 6, 2012, Petitioner filed a motion in state court to compel Trial Counsel to relinquish his file. (Pet'r's Decl. ¶ 9, Ex. 5 at 5.) The state court took no action on the motion, but Trial Counsel made the first of several attempts to send the file to Petitioner on May 1, 2012. (Pet'r's Decl., Ex. 5 at 5; Ex. 6 at 1-4.) The record indicates that Trial Counsel's first attempts to provide the file were unsuccessful, apparently because he mailed the file to the wrong correctional facility. (Pet'r's Decl., Ex. 6 at 1-5.)
On July 5, 2012, Petitioner again contacted OPDS to inquire about the status of his direct appeal. In the letter, Petitioner mentioned his continuing struggle to obtain his legal file:
On November 8th, 2011, you sent me a letter stating that I needed to present a colorable claim of error to you by November 29, 2011, or you will dismiss my case, correct. I then sent you a letter informing you that my previous attorney refuses to relinquish my file so that I could give you supporting documentation for said errors, I did not hear anything from you.
* * * *
If I don't hear from you in 30 days I will assume that you dismissed my case against my wishes and move to post conviction. [M]y issues will be many along with ineffective assistance of appellate counsel[.](Pet'r's Decl., Ex. 4 at 2) (emphasis in original). OPDS replied by mail on July 19, 2012, noting there was no record of Petitioner's response to the November 8, 2011 letter, and providing the contact information for the Oregon State Bar's (“OSB”) Client Assistance Office. (Id. at 1.) Soon after, Petitioner contacted OSB for assistance to recover his file.
Meanwhile, Trial Counsel continued to attempt to deliver the file to Petitioner. On July 22, 2012, Trial Counsel mailed the file to SRCI where Petitioner was housed, but SRCI returned it. (Pet'r's Decl., Ex. 6 at 6-7.) On August 30, 2012, Trial Counsel faxed a letter to SRCI, noting his previous attempt to send Petitioner the requested file. (Id. at 8-9.) The letter explained that Petitioner had failed to “file appropriate paperwork” with the prison, and requested that SRCI advise Petitioner “how to properly request his Discovery through the facility.” (Id. at 9.)
Petitioner eventually received his file from Trial Counsel in September 2012, and he immediately “began to review it to prepare [his] post-conviction petition.” (Pet'r's Decl. ¶¶ 1213.) Specifically, Petitioner requested general information concerning the mechanics of PCR, obtained a form PCR petition and instructions detailing how it should be completed, reviewed various litigation manuals, and researched the legal standards governing ineffective assistance of counsel and a diminished capacity defense. (Id. ¶¶ 16-17.) Petitioner also obtained his mental health records, articles, and other materials from his mother. (Id. ¶ 18.)
Petitioner's declaration offers conflicting accounts of when he began preparing his postconviction petition. Although Petitioner states he began preparing his PCR petition in September 2012, he also asserts that he was working on his PCR petition as early as April 2012. (Pet'r's Decl. ¶ 19.)
On November 7, 2012, Petitioner timely signed his state PCR petition, alleging ineffective assistance of counsel and violation of his speedy trial rights. (Resp't Ex. 105.) The PCR court assigned Susan Gerber (“Gerber”) to represent Petitioner. (Pet'r's Decl. ¶ 20.) Gerber warned Petitioner that federal habeas corpus would be the only potential remedy available if the PCR court denied relief, and she allegedly informed Petitioner that he would only have one year to file once the PCR case concluded. (Pet'r's Decl. ¶ 21.) On April 14, 2014, the PCR trial court denied relief on all claims. (Resp't Ex. 159.)
For the purpose of calculating the limitations period, this Court relies on the dates Petitioner signed his state and federal petitions and presumably gave them to prison officials for mailing. See Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“In determining when a pro se state or federal petition is filed, the ‘mailbox' rule applies.”).
Petitioner retained Gerber to represent him in his PCR proceedings sometime between April 2012 and her formal appointment to his case in November 2012. (Pet'r's Decl. ¶ 19.) The record indicates Gerber's representation lasted through the disposition of his PCR hearings in March and April 2014, but she stopped communicating with him shortly thereafter. (Id. ¶ 22.) Gerber later abandoned her law practice, and the court assigned a new attorney to handle Petitioner's PCR appeal. (Id. ¶¶ 22-23.) Gerber's abandonment has no bearing on the calculation of the limitations period or the availability of equitable tolling.
Petitioner subsequently appealed. (Pet'r's Decl., Ex. 7.) On January 27, 2016, the Oregon Court of Appeals affirmed without opinion. Weaver v. Nooth, 276 Or.App. 227 (2016); (Resp't Ex. 162.) On June 16, 2016, the Oregon Supreme Court denied review. Weaver v. Nooth, 359 Or. 777 (2016); (Resp't Ex. 163.) The same day, Petitioner's PCR appellate attorney, Jed Peterson (“Peterson”), informed Petitioner that the Supreme Court had denied review, and warned that his state PCR case would terminate upon entry of the appellate judgment, thereby triggering the one-year limitations clock. (Pet'r's Decl. ¶ 25, Ex. 9.) Peterson urged Petitioner to inquire about the availability of federal review, and furnished the contact information for the Federal Public Defender. (Id.)
Upon receiving Peterson's letter, Petitioner wrote to the Federal Public Defender to request information and assistance in filing a federal habeas petition. (Id. ¶ 26; Ex. 10.) On June 29, 2016, the Federal Public Defender provided Petitioner with a “habeas packet, ” which included “a form petition, a form motion for appointment of counsel, [and] a form for request to proceed without prepayment of fees.” (Bogar Decl. ¶ 6; Pet'r's Decl. ¶ 27.)
The appellate judgment issued on July 20, 2016. (Resp't Ex. 164.) Peterson immediately sent Petitioner a copy of the judgment, noting “the [AEDPA] clock re-started on July 20, 2016 when the enclosed judgment was entered.” (Pet'r's Decl. ¶ 28.) Petitioner received Peterson's letter while housed in the Administrative Housing Unit at Two Rivers Correctional Institution. (Id. ¶¶ 6, 29.)
Petitioner sought clarification from an inmate legal assistant, who advised Petitioner that he had one year in which to file his federal habeas petition. (Id. ¶ 30.) Petitioner also consulted other inmates in his unit, known as “legal beagles, ” who told Petitioner he had “plenty of time” to file. (Id.) Petitioner thus “believed that [he] had one year from July 20, 2016, to file [his] federal habeas petition.” (Id.) Petitioner nevertheless immediately began to work on his petition, seeking to “file[] it as early as possible given the restraints and delays that are typical of prison.” (Id. ¶ 31.) Petitioner ultimately signed his habeas petition on November 6, 2016. (Pet. (ECF No. 2) at 5-10.)
DISCUSSION
Respondent urges the Court to dismiss the Petition as untimely pursuant to 28 U.S.C. § 2244(d)(1). (Resp. (ECF No. 10) at 1.) Respondent argues that a total of 457 days elapsed before Petitioner initiated the instant proceeding, roughly three months more than the one-year period allowed under 28 U.S.C. § 2244(d)(1). (Reply (ECF No. 51) at 3.) In response, Petitioner argues that: (1) the Court should consider his Petition timely filed because the limitations period did not commence until August 30, 2012, when trial counsel provided his legal file; (2) the Court should equitably toll the limitations period from his date of conviction through August 30, 2012, because the delay was attributable to trial counsel's withholding of his legal file; or (3) the Court should conduct an evidentiary hearing on the issue of equitable tolling. (Pet'r's Am. Br. Supp. (ECF No. 49) at 21-26.)
Petitioner's request for an evidentiary hearing is listed in the case caption of his Brief in Support of the Petition, but his brief provides no argument concerning the propriety of an evidentiary hearing. However, Petitioner responds in his sur-reply to Respondent's arguments that an evidentiary hearing is unnecessary. (Sur-Reply (ECF No. 58) at 12.)
I. The One-Year Statute of Limitations
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a one-year statute of limitations applies to a petition for a writ of habeas corpus filed “by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). Unless otherwise tolled or subject to delayed accrual, the limitations period commences when the judgment becomes final “by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). When a petitioner forgoes direct review of his conviction, a habeas court must consult the state court filing deadlines to determine the date on which the judgment became final. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The limitations period is statutorily tolled during the pendency of a “a properly filed application for State post-conviction or other collateral review.” 28 U.S.C. § 2244(d)(2). A properly filed application remains “pending until it has achieved final resolution through the State's post-conviction procedure.” Biggs v. Duncan, 339 F.3d 1045, 1047-48 (9th Cir. 2003) (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)) (internal quotations omitted). The limitations period is not tolled, however, “‘from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed.'” Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (quoting Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006)).
Petitioner did not file a direct appeal. Thus, the limitations period began to run on November 25, 2011, thirty days after the original judgment entered. See OR. REV. STAT. §§ 138.071(1) (“[A] notice of appeal must be served and filed not later than 30 days after the judgment . . . was entered in the register[.]”); 187.010(3) (permitting acts required to be performed on a legal holiday to be performed on the next business day); see alsoOR. REV. STAT. § 138.083 (2007) (“A judgment that orders payment of restitution but does not specify the amount of restitution imposed is final for the purpose of appealing the judgment[.]”); UnitedStates v. Gilbert, 807 F.3d 1197, 1200 (9th Cir. 2015) (concluding under the analogous habeas provision for individuals in federal custody, 28 U.S.C. § 2255, “that when a judgment imposes a sentence but leaves the amount of restitution to be determined, the one-year statute of limitations . . . does not restart when the specific amount of restitution is later entered”). Between November 25, 2011 and November 7, 2012 (the date Petitioner signed his state PCR petition), 348 days accrued. (Reply at 3.)
In her Response, Respondent initially calculated the limitations period as commencing on February 6, 2012, thirty days after the amended judgment entered. In her Reply, Respondent acknowledged that her initial calculation was incorrect, and that the limitations period actually commenced on November 25, 2011, thirty days after entry of the original judgment. Petitioner does not dispute the merits of the earlier commencement date, but argues that the Court should estop Respondent from relying on a different date than she offered in her Response. (Sur-Reply at 5.) The Court finds that judicial estoppel does not foreclose Respondent from correcting, before the Court has reached its decision, an erroneous calculation made in earlier briefing. See generally New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (noting that judicial estoppel “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase”). Both parties acknowledge that the issues presented here do not turn on which commencement date applies. (See Sur-Reply at 5 (“[A]rguments for tolling apply equally to the additional 73 days that the State now claims were part of the limitations period.”); Sur-Sur Reply (ECF No. 65) at 11 (“[P]etitioner's petition is untimely without equitable tolling, regardless of which calculation is correct”).)
The limitations period was statutorily tolled while Petitioner's PCR petition was pending, and began to run again when the appellate judgment issued on July 20, 2016. (Resp't Ex. 164.) Between July 20, 2016 and November 6, 2016 (the date Petitioner signed his federal habeas petition), 109 days accrued. (Id.) In sum, 457 days accrued before Petitioner filed his petition, which exceeds the one-year limitation period.
Petitioner argues that “statutory tolling”-otherwise known as delayed accrual-applies to delay commencement of the limitations period under 28 U.S.C. § 2244(d)(1)(B). That section provides: “[t]he limitation period shall run from . . . 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 application was prevented from filing by such State Action.” Where a petitioner seeks both equitable tolling and delayed accrual pursuant to 28 U.S.C. § 2244(d)(1)(B), the court must first evaluate equitable tolling before turning to the issue of delayed accrual. SeeLott v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002) (requiring resolution of parallel equitable tolling issues to avoid the possibility of unnecessarily deciding a constitutional issue). Accordingly, the Court will first address Petitioner's request for equitable tolling before considering delayed accrual.
II. Equitable Tolling
The one-year limitations period may be tolled upon a showing “‘(1) that [the petitioner] has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pacev. DiGuglielmo, 544 U.S. 408, 418 (2005)); Rudin v. Myles, 781 F.3d 1043, 1054 (9th Cir. 2014); Doe v. Busby, 661 F.3d 1001, 1012 (9th Cir. 2011). Equitable tolling is “a flexible, fact-specific” inquiry. Gibbs v. Legrand, 767 F.3d 879, 885 (9th Cir. 2014). The threshold to trigger equitable tolling is “a very high bar, and is reserved for rare cases.” Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014); see also Spitsyn v. Moore, 345 F.3d 796, 800 (9th Cir. 2003) (noting that equitable tolling “is justified in few cases”). A petitioner thus “bears a heavy burden to show that [he] is entitled to equitable tolling, ‘lest the exceptions swallow the rule.'” Rudin, 781 F.3d at 1055 (quoting Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010)).
Petitioner argues that the Court should toll the limitations period because Trial Counsel withheld his case file, and because a “combination of other factors”-including mental health issues, a “below-eighth-grade” reading level, sporadic movements in various correctional institutions, and limited access to the prison law library-impacted his ability to file on time. (Pet'r's Am. Br. Supp. at 23-26.) For the reasons set forth below, the district judge should deny Petitioner's request for equitable tolling.
A. Extraordinary Circumstances
To justify equitable tolling, an “extraordinary circumstance” must have prevented timely filing. Holland, 560 U.S. at 649. The extraordinary circumstance raised must be both “the but-for and proximate cause of [the petitioner's] untimeliness.” Allen v. Lewis, 255 F.3d 798, 800 (9th Cir. 2001); see also Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (“The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness and the extraordinary circumstances made it impossible to file a petition on time[.]”) (internal quotations and citations omitted); Spitsyn, 345 F.3d at 799 (holding that extraordinary circumstances must be the cause-in-fact of the untimeliness of filing). If the untimeliness is attributable to “oversight, miscalculation or negligence on the petitioner's part, ” equitable tolling is not warranted. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009).
1. Trial Counsel's Withholding of Petitioner's File
Petitioner alleges that Trial Counsel deprived him of “access to his file-which contained the legal documents necessary . . . to meaningfully prepare his petition-until at least September 2012.” (Sur-Reply at 1.) Petitioner does not explain how the delay prevented the timely filing of his habeas petition, but suggests that Trial Counsel's delay took too much time off the one-year clock. (Id. at 9.)
Attorney misconduct may constitute an “extraordinary circumstance” warranting equitable tolling of the limitations period. Spitsyn, 345 F.3d at 800 (citing Ford v. Hubbard, 330 F.3d 1086, 1106 (9th Cir. 2003)). It is well settled that an attorney's conduct must be egregious, meaning it must amount to more than mere “run-of-the-mill” negligence, to constitute an extraordinary circumstance worthy of equitable tolling. Id.; Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015); see alsoPorter, 620 F.3d at 959 (“Attorney negligence, including a miscalculation of a filing deadline, is not a sufficient basis for applying equitable tolling”); Fryev. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (holding that “the miscalculation of the limitations period by [the petitioner]'s counsel and his negligence in general did not constitute extraordinary circumstances sufficient to warrant equitable tolling”); Busby, 661 F.3d at 1012 (finding extraordinary circumstances prevented timely filing where an attorney failed timely to file a federal habeas petition after promising to do so, even though petitioner hired him over one year before the limitations period expired, paid him $20,000, provided his files, and routinely inquired about the case).
The Ninth Circuit has found extraordinary circumstances where an attorney's misconduct included, among other things, failing timely to return a client's files. SeeSpitsyn, 345 F.3d at 801 (holding that attorney's failure to prepare and file a habeas petition, failure to communicate with his client, and the retention of his client's file for the duration of the limitations period and beyond constituted an extraordinary circumstance warranting equitable tolling). The Ninth Circuit has similarly determined that the deprivation of a prisoner's legal materials is the type of external impediment that may warrant equitable tolling. Lott, 304 F.3d at 924-25. Petitioner, however, bears the burden of demonstrating that the hardship flowing from the lack of access to his file was an extraordinary circumstance that caused him to file an untimely habeas petition. Waldron-Ramsey, 556 F.3d at 1013.
The record indicates that Petitioner filed an official complaint against Trial Counsel in 2015, and that OSB subsequently disciplined Trial Counsel for a variety of offenses stemming from his representation of Petitioner, including the delay in providing Petitioner his file. (Pet'r's Exs. B, E.) The Court concludes that Trial Counsel's conduct was sufficiently egregious to qualify as extraordinary circumstances. However, Petitioner has not demonstrated that Trial Counsel's delay in providing the file caused Petitioner's untimely filing of his federal habeas petition. SeeSpitsyn, 345 F.3d at 799 (“The prisoner must show that the ‘extraordinary circumstances' were the cause of his untimeliness.”).
While the record is clear that Petitioner awaited his file to prepare his state PCR petition, he timely filed that petition. SeeRandle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010) (denying equitable tolling where petitioner sought delayed legal files in order to file a state PCR petition, and not federal habeas petition). After the clock started again, Petitioner had seventeen days to file his federal habeas petition. Petitioner acknowledges that it was his misunderstanding of the one-year deadline that caused him to file his habeas petition late, not the need for his file. See Pet'r's Decl. ¶ 4 (“I diligently worked to prepare my habeas corpus petition, incorrectly thinking that I was filing it early.”). Indeed, Petitioner had nearly three years of access to his legal file before the limitations period expired in August 2016.
Petitioner argues that the Court should toll the ten-month time period when he did not have possession of his legal file. In other words, Petitioner argues that the one-year clock did not begin until he received his file in early September 2012, the clock ran until he filed his PCR petition on November 7, 2012 (i.e., approximately two months), was statutorily tolled while Petitioner's PCR petition was pending, began to run again when the PCR appellate judgment issued on July 20, 2016, and ran until he filed this action on November 6, 2016 (i.e., less than four months, for a total of less than six months off the one-year clock). See Pet'r's Am. Br. Supp. at 27-30 (“[T]he time, from the date of conviction until after August 30, 2012, whe[n] Mr.
Weaver was unable to secure a copy of his file, should be equitably tolled” and “[a]ll told, [Trial Counsel] withheld Mr. Weaver's file for a period of approximately ten months from the date of sentencing” and “Mr. Weaver filed late by less than three weeks[.]”). Under this approach, the one-year clock would stop during the ten-month delay, and the Court need not consider whether Petitioner was diligent after he received his file because plenty of time remained on Petitioner's one-year clock. Although the Ninth Circuit appeared to endorse this “stop-clock” approach to equitable tolling in earlier cases, it recently rejected the “stop-clock” rule in Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) (en banc).
In Smith, like here, the petitioner sought equitable tolling for the time period his counsel failed to provide him his legal records. Smith, 953 F.3d at 586 (noting that the petitioner asked to extend the statute of limitations by the 66 days it took his counsel to send him the appellate court record). The petitioner asked the Ninth Circuit to apply “a ‘stop-clock' approach to equitable tolling so that whenever a petitioner is impeded from filing his petition by extraordinary circumstances while the time period of a statute of limitations is running out, he may simply add the time during which he was so impeded to extend the period of the statute of limitations, regardless whether he was reasonably diligent in filing his petition after the impediment was removed.” Id. The petitioner argued that “because he was diligent in attempting to contact his attorney to obtain his appellate record after he learned about the denial of his appeal, it is irrelevant whether he used his time diligently after he received that record, and he is entitled to 66 days of equitable tolling so that he may have a full 365 days, free of any impediment to filing caused by an extraordinary circumstance, in which to file his habeas petition.” Id. at 588.
After examining Supreme Court jurisprudence, Congressional intent, and traditional equity principles, the Ninth Circuit squarely rejected the “stop-clock” approach to equitable tolling. Id. at 599 (“[W]e today reject the stop-clock approach[.]”). The Ninth Circuit held that “for a litigant to demonstrate ‘he has been pursuing his rights diligently,' and thus satisfies the first element required for equitable tolling, he must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Id. at 598-99 (quoting Holland, 560 U.S. at 649). The Ninth Circuit declined to toll the petitioner's statute of limitations “[i]n the absence of any claim by [the petitioner] that he was diligent in preparing his habeas petition after he received his case file[.]” Id. at 602.
Several dissenting judges in Smith advocated for a “stop-clock” approach to equitable tolling. See Smith, 953 F.3d at 602-616 (examining Supreme Court precedent, Congressional intent, and traditional equity and other principles to conclude that courts should “stop[] the clock for the period of the extraordinary circumstance” to provide petitioners with the full 365 days to file a habeas petition) (Berzon, J., dissenting).
If this Court could apply the “stop-clock” approach and start Petitioner's one-year clock when he received his file from Trial Counsel in early September 2012, it would, because that is the only approach that would provide Petitioner a full 365 days without impediments to file his habeas petition. Unfortunately, the Ninth Circuit rejected the “stop-clock” approach in Smith, and therefore this Court cannot credit back to Petitioner the ten months he waited to receive his file. See Monroe v. Williams, No. 2:18-cv-01491-GMN-BNW, 2020 WL 2494620, at *3 (D. Nev. May 14, 2020) (“Equitable tolling does not stop the limitation clock; once the extraordinary circumstance that prevented timely filing goes away, [the petitioner] needed to be diligent in filing his federal habeas corpus petition.”) (citing Smith); see also White v. Covello, No. 8:20-cv-00814-JLS-KES, 2020 WL 2572463, at *8 (C.D. Cal. May 21, 2020) (finding that the petitioner had not shown that his counsel's “belated disclosure of the trial file actually caused him to file belatedly” and ordering the petitioner to “explain why he believes he was diligent in seeking habeas relief after he received the records from [his counsel]”) (citing Smith).
Instead, consistent with Smith, the Court finds that the extraordinary circumstance caused by Trial Counsel's delay did not cause Petitioner's untimely filing of his federal habeas petition. Rather, the record is clear that the reason Petitioner did not timely file his habeas petition after the clock restarted on July 20, 2016 was because he misunderstood how to calculate the one-year statute of limitations. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“Rasberry's inability correctly to calculate the limitations period is not an extraordinary circumstance warranting equitable tolling.”). Thus, under Smith, equitable tolling is not warranted here.
2. “Other Factors”
Petitioner also argues that “a combination of other factors supports additional equitable tolling beyond the ten months” in which he lacked access to his file. (Am. Br. Supp. at 24-26.) Petitioner does not explain how such factors combined to prevent his timely filing, but argues that each has provided a basis on which the Ninth Circuit has granted equitable tolling.
Petitioner first argues that his movements within prison and the limitations of restrictive housing deprived him of access to his legal papers and limited his access to the law library. (Id. at 24.) Petitioner's prison housing history indicates that during the period from intake through 2015, he was subject to multiple movements in and out of disciplinary segregation. (Pet'r's Decl., Ex. 1.) The suspension of privileges resulting from Petitioner's own behavior does not constitute extraordinary circumstances beyond his control. See Wilson v. Morrow, No. CIV. 07-117-KI, 2008 WL 2278495, at *3 (D. Or. May 30, 2008) (noting that concluding otherwise “would distort the nature and purpose of equitable tolling, significantly lower the threshold for its application, and reward a prisoner's unlawful behavior”). Furthermore, although Petitioner was housed in administrative segregation when the AEDPA limitations period re-started on July 20, 2016, an individual's limited access to the law library while housed in administrative segregation does not necessarily warrant equitable tolling. See Ramirez, 571 F.3d at 998 (“Ordinary prison limitations on [petitioner's] access to the law library and copier (quite unlike the denial altogether of access to his personal legal papers) were neither ‘extraordinary' nor made it ‘impossible' for him to file his petition in a timely manner”). Petitioner does not allege that he was denied access to legal resources essential to the timely filing of his habeas petition, and thus equitable tolling is not warranted.
Petitioner next argues that his long history of mental health issues, including his hospitalization in the Oregon State Hospital after he was found unable to aid and assist in his defense, warrant equitable tolling. (Am. Br. Supp. at 25-26.) However, the record does not reflect, and Petitioner does not argue, that he suffers from a mental impairment “so severe that [he] was unable personally either to understand the need to timely file or prepare a habeas petition, and that impairment made it impossible under the totality of the circumstances to meet the filing deadline despite [his] diligence.” Bills, 628 F.3d at 1093. Petitioner was hospitalized and subjected to a number of evaluations concerning his fitness to stand trial, but multiple psychologists found that Petitioner understood the legal ramifications of his case and the charges against him. (Resp't Ex. 109 at 6; Resp't Ex. 142 at 4-5.) Multiple psychologists also found Petitioner likely feigned or exaggerated some of his psychological symptoms. (Resp't Ex. 124 at 10; Resp't Ex. 143 at 6, 8.) The Court acknowledges that Petitioner has been diagnosed with Bipolar II Disorder, PTSD, and ADHD, but he has provided no evidence or argument that such impairments prevented his timely filing. Rather, Petitioner acknowledges that his mental impairments “may not be so severe as to warrant tolling on their own.” (Am. Br. Supp. at 26.)
Petitioner also argues he has a “below-eighth-grade” reading level, providing evidence that references Petitioner's low score on a standardized reading test administered in custody. (Pet'r's Decl., Ex. 2.) Petitioner does not argue, however, that his reading level caused the untimeliness of his petition. Moreover, lack of literacy or legal sophistication by itself is not enough to warrant equitable tolling. Rasberry, 448 F.3d at 1154.
Petitioner has failed to show how his movements within prison, his mental health, or his reading level caused the untimeliness of his federal habeas petition. Petitioner has also failed to demonstrate how a combination of those factors were the but-for cause of his tardiness. Accordingly, equitable tolling is not warranted here.
III. Delayed Accrual
A petitioner is entitled to delayed accrual under 28 U.S.C. § 2244(d)(1)(B) only if a state-created impediment “altogether prevented him from presenting his claim in any form, to any court.” Ramirez, 571 F.3d at 1001. A petitioner seeking delayed accrual therefore “must satisfy a far higher bar than that for equitable tolling.” Ramirez, 571 F.3d at 1000. The Ninth Circuit has determined that a petitioner seeking delayed accrual “must show a causal connection between the unlawful impediment and his failure to file a timely habeas petition.” Bryant v. Ariz. Att'y Gen., 499 F.3d 1056, 1060 (9th Cir. 2007).
Petitioner argues that Trial Counsel's withholding of his file constitutes a state-created impediment to filing, and that commencement of the limitations period should be delayed until at least August 30, 2012, when he received his file. (Am. Br. Supp. at 21; Sur-Reply at 4.) As explained above, however, Petitioner has failed to demonstrate that Trial Counsel's delay in providing his file was the cause of his untimely federal habeas petition. Because Petitioner fails to demonstrate the required causal connection, delayed accrual is not appropriate here.
Petitioner also alludes to delayed accrual under 28 U.S.C. § 2244(d)(1)(D), but fails to offer any meaningful argument that such provision applies. The Court thus considers only delayed accrual pursuant to 28 U.S.C. § 2244(d)(1)(B).
IV. Evidentiary Hearing
In the alternative, Petitioner requests an evidentiary hearing to “refute the State's speculation about the facts and clarify the record.” (Sur-Reply at 12.) Specifically, Petitioner contends he could offer testimony concerning the proper process for mailing packages in prison and Petitioner's lack of possession of legal documents relating to his case until receiving Trial Counsel's file. (Id.) Petitioner also alleges that additional evidence of his intellectual deficits and mental health might assist the Court. (Id.) The Court finds the record is sufficiently developed to resolve the issues before it, and denies the Petitioner's request for an evidentiary hearing. See Griffin v. Johnson, 350 F.3d 956, 966 (9th Cir. 2003) (holding that an evidentiary hearing is not warranted when the petitioner has not established that the hearing would produce evidence that is more reliable or probative than what is already before the court).
CONCLUSION
Based on the foregoing, the district judge should DISMISS the Amended Petition for Writ of Habeas Corpus (ECF No. 62) with prejudice, but issue a certificate of appealability on the application of equitable tolling.
In Smith, the petitioner's counsel withheld his file for 66 days, but the petitioner still had ten months to file his habeas petition. Smith, 953 F.3d at 587 (“[E]ven though Smith did not receive his appellate record until two months after the time period prescribed by the statute of limitations had begun to run, he still had ten months thereafter in which to file his habeas petition on time.”). In contrast here, Petitioner's counsel withheld his file for almost ten months and Petitioner spent a reasonable two months preparing his PCR petition, leaving only seventeen days on the clock to file his federal habeas petition. It is at least debatable whether the Ninth Circuit would reach the same conclusion here as it did in Smith with respect to applying the “stop clock.” See Slack v. McDaniel, 529 U.S. 473, 478 (2000) (“[W]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue (and an appeal of the district court's order may be taken) if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”).
SCHEDULING ORDER
The Court will refer its Findings and Recommendations to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.