Opinion
Civil No. 02-337-ST.
September 15, 2004
Anthony D. Bornstein, Assistant Federal Public Defender Portland, Oregon, Attorney for Petitioner.
Hardy Myers, Attorney General, Douglas Y.S. Park, Assistant Attorney General, Department of Justice Salem, Oregon, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner brings this 28 U.S.C. § 2254 habeas corpus action challenging his underlying state convictions for Sexual Abuse in the First Degree and Sodomy in the First Degree. Because this action is untimely, the Petition for Writ of Habeas Corpus (docket #2) should be denied.
BACKGROUND
On September 4, 1992, a six-person jury found petitioner guilty of Sexual Abuse in the First Degree and Sodomy in the First Degree for crimes committed against his step-daughter. Respondent's Exhibit 101. On October 15, 1993, petitioner filed his opening brief with the Oregon Court of Appeals raising an ex post facto claim. After receiving two extensions of time, the State moved to hold petitioner's appeal in abeyance pending the Oregon Supreme Court's decision in State v. Cookman, 324 Or. 19, 920 P.2d 1086 (1996), a case which raised nearly the identical ex post facto issue presented by petitioner in his appeal. Respondent's Exhibit 102, Entry #14.
The Oregon Supreme court decided Cookman on August 15, 1996, but petitioner's direct appeal was not reactivated until December 13, 1996. Id, Entry #19. The State received one additional extension of time to file its appellate brief, which it did on February 21, 1997. Id, Entry #21. The Oregon Court of Appeals affirmed the trial court without a written opinion on May 21, 1997. State v. McKown, 148 Or. App. 272, 939 P.2d 173 (1997). The Oregon Supreme Court denied review, and the appellate judgment issued on November 7, 1997. Id, 326 Or. 58, 944 P.2d 948.
On October 7, 1999, petitioner filed a petition for postconviction relief ("PCR") which the PCR trial court denied. Respondent's Exhibits 104 105. Petitioner appealed, but the Oregon Court of Appeals affirmed the lower court without opinion, and the Oregon Supreme Court denied review. McKown v. Palmateer, 173 Or. App. 298, 21 P.3d 665, rev. denied, 332 Or. 326, 28 P.3d 1176 (2001). The appellate judgment is dated September 12, 2001. Respondent's Exhibits 106 107.
Petitioner filed the current action on March 19, 2002. Respondent asks the court to dismiss this case because it was not filed within the applicable limitation period. Petitioner concedes that he did not timely file this action, but asks the court to excuse the untimely filing because: (1) the State unreasonably delayed his direct appeal; and (2) an inmate legal assistant prevented him from filing his PCR and federal habeas corpus petitions in a more timely fashion.
DISCUSSION
I. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted on April 24, 1996. The AEDPA provides that a one-year statute of limitations applies to federal habeas corpus actions filed by state prisoners. The one-year period runs from the latest of:
(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;
(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.28 U.S.C. 2244(d)(1).
As noted above, petitioner's direct appeal judgment issued on November 7, 1997. However, AEDPA's limitation period remained tolled for 90 days following the appellate judgment because the period of direct review also includes the period within which a petitioner can file a petition for writ of certiorari from the United States Supreme Court, whether or not he actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Accordingly, the limitation period did not begin to run until February 5, 1998.
Petitioner's PCR petition was filed in Marion County on October 7, 1998. Respondent's Exhibit 104. This does not reflect the true filing date since, according to the prison mailbox rule, documents are deemed filed when inmates hand them to prison authorities for mailing. See Saffold v. Newland, 224 F.3d 1087, 1091 (9th Cir. 2000) (applying prison mailbox rule to state court petitions as well as federal petitions). Petitioner signed his PCR petition on September 23, 1998. Respondent's Exhibit 104, p. 5. Assuming petitioner delivered his PCR petition to prison authorities for mailing on the day he signed it, 230 days of untolled time elapsed between February 5 and September 23, 1998.
The limitation period remained tolled during the pendency of petitioner's PCR proceedings. See 28 U.S.C. § 2244(d)(2) (the time during which a collateral challenge is pending does not count toward AEDPA's limitation period). Consequently, the statute of limitations did not resume until September 12, 2001, the date on which the PCR proceedings concluded. Petitioner signed the federal habeas petition 184 days later on March 15, 2002.
Based on the foregoing procedural history, the court finds at least 414 (230 + 184) untolled days accrued between the conclusion of petitioner's direct appeal and the filing of this case. Accordingly, petitioner filed this case 49 (414-365) days after the one year statue of limitations expired. Petitioner asks the court to excuse the untimely filing because the State is judicially estopped from asserting the statute of limitations defense, and because he is entitled to equitable tolling. II. Judicial Estoppel
"Judicial estoppel, sometimes also known as the doctrine of preclusion of inconsistent positions, precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position." Rissetto v. Plumbers Steamfitters Local 343, 94 F.3d 597, 600 (9th Cir. 1996). "Judicial estoppel is an equitable doctrine that is intended to protect the integrity of the judicial process by preventing a litigant from `playing fast and loose with the courts.'" Wagner v. Professional Engineers in California Government, 354 F.3d 1036, 1044 (9th Cir. 2004) (citing Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990). "[J]udicial estoppel applies to a party's stated position, regardless of whether it is an expression of intention, a statement of fact, or a legal assertion." Helfand v. Gerson, 105 F.3d 530, 535 (9th Cir. 1997).
Petitioner contends that the State's request to hold his direct appeal in abeyance caused nearly three years of delay. He therefore reasons that the State had no interest in the speedy or timely adjudication of his ex post facto claim. Petitioner concludes that the State is taking a position contrary to its position during petitioner's direct appeal proceedings by asserting a statute of limitations defense in this case.
The delay in petitioner's direct appeal pending the resolution of a constitutional issue necessary to the disposition of his case does not constitute a representation by the State that it did not have an interest in the timely adjudication of petitioner's ex post facto claim. Furthermore, the abeyance of petitioner's direct appeal has no bearing on the timeliness of this action because AEDPA's one-year limitation period did not begin to run until after the conclusion of petitioner's direct review. Put another way, the abeyance did not cause or in any way contribute to the accrual of the 414 days of untolled time. Therefore, the State's position on the abeyance issue cannot constitute a contradictory position on the timeliness of this case.
III. Equitable Tolling
Petitioner next asks the court to equitably toll the limitation period for two reasons: (1) the State's conduct in staying the direct appeal resulted in a three-year delay in the filing of this action; and (2) petitioner was at the mercy of a dilatory inmate legal assistant whose delays caused this action to be untimely.
Although the Ninth Circuit has authorized equitable tolling, it is not available in most cases. Equitable tolling is appropriate when "`extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.'" Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Brambles v. Duncan, 330 F.3d 1197, 1202 (9th Cir. 2003)). A petitioner who fails to file a timely petition due to his own lack of diligence is not entitled to equitable tolling. Tillema v. Long, 253 F.3d 494, 504 (9th Cir. 2001); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). "As a discretionary doctrine that turns on the facts and circumstances of a particular case, equitable tolling does not lend itself to bright-line rules." Spitsyn, 345 F.3d at 801 (quoting Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999)).
Petitioner's claim that the abeyance-related delay caused this action to be untimely is without merit. As previously discussed in terms of judicial estoppel, AEDPA's limitation period remains tolled throughout direct appeal challenges. For this reason, any delay during a direct appeal cannot constitute an extraordinary circumstance which rendered the timely filing of a habeas petition impossible.
Petitioner next asserts that an inmate legal assistant caused the untimely filing. The Tenth Circuit has held that the incompetence of an inmate legal assistant does not create extraordinary circumstances warranting equitable tolling. Marsh v. Soares, 223 F.3d 1217, 1220-21 (10th Cir. 2000). Although the Ninth Circuit has not addressed the question of incompetence by an inmate legal assistant, it has held that an attorney's negligence in failing to advise his client of AEDPA's limitation period does not constitute an extraordinary circumstance sufficient to invoke equitable tolling. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001); see also Miranda v. Castro, 292 F.3d 1063, 1066-67 (9th Cir. 2002) (counsel's prejudicial miscalculation of deadline did not constitute an extraordinary circumstance).
The Ninth Circuit has, however, explained that "there are instances in which an attorney's failure to take necessary steps to protect his client's interests is so egregious and atypical that the court may deem equitable tolling appropriate." Ford v. Hubbard, 330 F.3d 1086, 1106 (9th Cir. 2003). In Spitsyn, the Ninth Circuit was confronted with such facts:
Though he was hired nearly a full year in advance of the [AEDPA] deadline, counsel completely failed to prepare and file a petition. Spitsyn and his mother contacted [counsel] numerous times, by telephone and in writing, seeking action, but these efforts proved fruitless. Furthermore, despite a request that he return Spitsyn's file, [counsel] retained it for the duration of the limitations period and more than two months beyond. That conduct was so deficient as to distinguish it from the merely negligent performance of counsel in Frye and Miranda.Spitsyn, 345 F.3d at 801.
Here, petitioner complains of the assistance he received from a fellow inmate, Donald Silvis, whom he characterizes as an "inadequate and dilatory state-employed legal assistant." Memorandum in Support (docket #33), p. 9. Petitioner maintains that Silvis "was slow-paced in preparing the documents and informed [petitioner] on several occasions that [the legal assistant] needed additional documents." Id at 5.
Petitioner's case is distinguishable from Spitsyn in two ways. First, Silvis is a fellow inmate who offered to assist petitioner with his collateral challenges to his convictions. Silvis is not a trained, licensed attorney who engages in the practice of law as his profession.
Second, unlike the petitioner in Spitsyn, petitioner has not alleged that Silvis refused to return his legal materials to him or otherwise denied him access to those materials. Instead, petitioner only alleges Silvis was slow. The slowness with which an inmate legal assistant works does not constitute an extraordinary circumstance rendering the timely filing of a habeas petition impossible.
Accordingly, equitable tolling is not appropriate in this case.
IV. Evidentiary Hearing
Petitioner also asks the court to conduct an evidentiary hearing if it believes additional facts are necessary to determine whether equitable tolling should apply in this case. Petitioner intends to introduce testimony pertaining to the obstacles he faced in dealing with Silvis, as well as evidence showing the dates he placed his PCR and federal habeas petitions in the prison mail system for filing under the prison mailbox rule.
Even if the court were to conduct an evidentiary hearing during which petitioner showed Silvis to be an obstacle to timely filing, for the reasons previously discussed, petitioner would not be entitled to relief. With respect to the exact timing of petitioner's filings, the court has already credited petitioner with filing both his PCR and federal habeas petitions on the dates he signed them. Thus, he could not submit any evidence of a more favorable date. Because the court would not benefit from any further factual development of the record, petitioner's request for an evidentiary hearing should be denied.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (docket #2) should be DENIED, and judgment should be entered DISMISSING this case with prejudice.
SCHEDULING ORDER
Objections to these Findings and Recommendation, if any, are due October 4, 2004. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, then the response is due within 10 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 be referred to a district court judge and go under advisement.