Opinion
Case No. CV 15-3051-JPR
08-18-2015
ERICK GONZALEZ, Petitioner, v. J. SOTO, Warden, Respondent.
MEMORANDUM OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS, DENYING PETITIONER'S MOTION FOR LEAVE TO FILE LATE PETITION AND FOR A STAY, DENYING PETITION, AND DISMISSING ACTION WITH PREJUDICE
PROCEEDINGS
On April 9, 2015, Petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody as well as a motion for leave to file the Petition late and to exhaust two of its four claims in state court. He also filed notice consenting to the jurisdiction of the undersigned Magistrate Judge. The Court on May 11, 2015, ordered Respondent to file either a motion to dismiss the Petition or some other response to Petitioner's motion. The Court noted in its Order that Petitioner could file opposition to any motion to dismiss no later than 21 days after its service upon him.
On May 27, 2015, Respondent filed a motion to dismiss the Petition as time barred. He also consented to the undersigned's jurisdiction. On May 28, 2015, Petitioner filed a request to proceed in forma pauperis, which the Court granted. He never, however, filed opposition to the motion to dismiss. On July 7, 2015, after confirming on the California Department of Corrections and Rehabilitation's Inmate Locator website that Petitioner remained incarcerated at his address of record, the Court sua sponte extended the time for Petitioner to file opposition to the motion to dismiss by 21 days. To date, however, Petitioner has not filed any opposition.
For the reasons discussed below, Respondent's motion to dismiss the Petition is granted, Petitioner's request for leave to file his Petition late and for a stay is denied, the Petition is denied as time barred, and this action is dismissed with prejudice.
DISCUSSION
The Petition Is Time Barred
The Anti-Terrorism and Effective Death Penalty Act sets forth a one-year limitation period for filing a federal habeas petition and specifies that the period runs from the latest of the following dates:
(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;28 U.S.C. § 2244(d)(1). AEDPA includes a statutory tolling provision that suspends the limitation period for the time during which a properly filed application for postconviction or other collateral review is pending in state court. § 2244(d)(2); see Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008). In addition to statutory tolling, federal habeas petitions are subject to equitable tolling of the one-year limitation period in appropriate cases. Holland v. Florida, 560 U.S. 631, 649 (2010) (petitioner must show that he has pursued his rights diligently and extraordinary circumstance prevented him from timely filing). A petitioner bears the burden of demonstrating that he is entitled to sufficient tolling to render a petition timely. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (equitable tolling); Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002) (statutory tolling), abrogation on other grounds recognized by Cross v. Sisto, 676 F.3d 1172, 1178-79 (9th Cir. 2012).
(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.
As Respondent explains in the motion to dismiss, the Petition is on its face four months late. Indeed, Petitioner recognized that by filing a motion for leave to file the Petition late. But as the Court noted in its May 11 Order, Petitioner did not provide any viable excuse for his late filing. Petitioner's claims were either raised on direct appeal or appear to rest on facts that must have been known to him at the time of trial and sentencing, and thus he is not entitled to a later trigger date of the statute of limitations. Nor is Petitioner entitled to statutory tolling, as the Petition acknowledges that he had not filed any state habeas petitions as of the time he prepared it. (Pet. at 3); see Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed."). Petitioner claimed in his motion to be "having difficulty gaining access to the law library" (see Mot. Exhaust at 3), but as the Court noted, he did not say when those difficulties began, how often they occurred, or how much he was able to actually use the library. Such conclusory allegations cannot entitle him to equitable tolling. See Jackson v. Evans, 286 F. App'x 516, 516 (9th Cir. 2008) (affirming dismissal of petition because petitioner who made "only vague allegations" of being denied access to library not entitled to equitable tolling); Williams v. Dexter, 649 F. Supp. 2d 1055, 1061-62 (C.D. Cal. 2009) (conclusory assertions of limited law library access unsupported by competent evidence inadequate to state basis for equitable tolling). Thus, nothing in the Petition or its attachments, or in Petitioner's motion, entitles him to an extended limitation period. Indeed, Petitioner's failure to respond to the motion to dismiss is likely tacit admission of its validity.
The California Supreme Court denied Petitioner's petition for review on September 11, 2013. (See Pet. at 21 (throughout this Order, the Court uses the pagination provided by its Case Management/Electronic Case Filing system).) Petitioner did not file a petition for writ of certiorari to the U.S. Supreme Court. (See id. at 8 (stating that he had not previously filed in any federal court any petition relating to convictions challenged in Petition).) Thus, the judgment became final on December 10, 2013, see Zepeda v. Walker, 581 F.3d 1013, 1016 (9th Cir. 2009) ("The period of direct review after which a conviction becomes final includes the 90 days during which the state prisoner can seek a writ of certiorari from the United States Supreme Court."), and absent a later trigger date or some kind of tolling, the AEDPA limitation period expired on December 10, 2014. Petitioner constructively filed the Petition on April 9, 2015. (See Pet. at 9 (signature page with date of "4.9.15").)
In his motion, Petitioner asserts that counsel was ineffective for failing to call certain people as witnesses at trial. (Mot. Exhaust at 3.) The Petition itself states more generally, without elaboration, that counsel "failed to properly investigate Petitioner's case." (Pet. at 6.) --------
Because Petitioner has not met his burden of demonstrating that he is entitled to tolling sufficient to render the Petition timely and because on its face it is four months late, it must be denied.
CONCLUSION
IT THEREFORE IS ORDERED that (1) Respondent's motion to dismiss is GRANTED, (2) Petitioner's motion for leave to file a late petition and for a stay is DENIED, and (3) Judgment be ENTERED denying the Petition and dismissing this action with prejudice. DATED: August 18, 2015
/s/_________
JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE