Opinion
Civil No. 02-847-AS.
January 16, 2004
MICHAEL R. LEVINE, Portland, OR, Attorney for Petitioner.
HARDY MYERS, Attorney General, LYNN DAVID LARSEN, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Respondent.
FINDINGS AND RECOMMENDATIONS
Petitioner, an inmate at the Snake River Correctional Institution, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before the court are the Petition for Writ of Habeas Corpus (#2) and petitioner's Motion to Grant Petition Forthwith and Alternative Motion for Evidentiary Hearing (#27). For the reasons that follow, both the petition and petitioner's motion should be DENIED, and this action should be DISMISSED.
BACKGROUND
On December 15, 1994, Petitioner was convicted in Marion County Circuit Court on charges of Unlawful Sexual Penetration in the Second Degree and Sexual Abuse in the First Degree. On direct appeal, the Oregon Court of Appeals affirmed the conviction, but remanded the case for resentencing. State v. Reid, 140 Or.App. 293, 915 P.2d 453 (1996).
On June 12, 1996, petitioner was resentenced. Following resentencing, petitioner again filed a direct appeal. However, he subsequently moved to voluntarily dismiss the appeal, which motion the Oregon Court of Appeals granted. The appellate judgment was issued on September 11, 1996.
On February 23, 1998, petitioner filed a petition for state post-conviction relief ("PCR"). On February 3, 2000, the PCR trial court entered a judgment denying relief. Petitioner appealed, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Reid v. Lampert, 178 Or. App. 635, 39 P.3d 293, rev. denied, 333 Or. 655, 45 P.3d 448 (2002). The appellate judgment issued on May 16, 2002.
Petitioner filed this action on June 24, 2002. Respondent argues the petition for writ of habeas corpus should be denied as untimely.
LEGAL STANDARDS
The Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted on April 24, 1996. The statute provides that a one-year statute of limitations applies to federal habeas corpus actions filed by state prisoners. 28 U.S.C. § 2244. 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).
"The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). Section 2244(d) does not, however, permit the reinitiation of the limitations period that has ended before the state petition was filed. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 124 S.Ct. 328 (2003).
DISCUSSION
Respondent argues the habeas petition in this court is untimely because more than one year passed between the time petitioner dismissed his direct appeal and the time he filed his state PCR petition. Petitioner concedes his petition was untimely, but argues the limitation period should be equitably tolled because a prison inmate legal assistant failed to advise petitioner of the one-year limitation period and petitioner had no personal knowledge of the existence of the law. Petitioner further argues the one-year limitation period is an unconstitutional suspension of the writ of habeas corpus.
I. Equitable Tolling
The one-year limitation period of § 2244 may be equitably tolled if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time. Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling is justified in few cases. "Indeed, the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule."Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation and internal quotation marks omitted). A habeas petitioner "bears the burden of showing that this extraordinary exclusion should apply to him." Spitsyn v. Moore, ___ F.3d ___, 2003 WL 22472036, *3 (9th Cir. Oct. 3, 2003) (citations omitted).
Petitioner's reason for failing to timely file his petition does not merit equitable tolling in this case. It is well-established that pro se status and ignorance of the law are not generally considered extraordinary circumstances entitling pro se prisoners to equitable tolling. See Felder v. Johnson, 204 F.3d 168, 172-73 n. 10 (5th Cir.) (mere ignorance of the law or lack of knowledge of filing deadlines does not justify equitable tolling of AEDPA's limitation period), cert. denied, 531 U.S. 1035 (2000); see also Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy of pro se petitioner not sufficient cause to avoid procedural bar). Moreover, dereliction of counsel in a non-capital habeas case does not render it impossible for the petitioner to exercise his statutory or constitutional right to file for habeas relief. Frye v. Hickman, 273 F.3d 1144, 1145 (9th Cir. 2001), cert. denied, 535 U.S. 1055 (2002); but see Spitsyn, 2003 WL 22472036, *5 (where an attorney's conduct is egregious, as opposed to merely negligent, equitable tolling may be appropriate). The dereliction of an inmate legal assistant is even less compelling. Accordingly, the doctrine of equitable tolling should not be applied in this case.
II. Constitutionality of Limitations Period
Petitioner further argues that application of the statute of limitations constitutes an unconstitutional suspension of the writ of habeas corpus. In Green v. White, 223 F.3d 1001, 1003-04 (9th Cir. 2000), the Ninth Circuit Court of Appeals directly rejected this argument, holding that "[t]he one-year limitation does not violate the Suspension Clause because it is not jurisdictional and may be subject to equitable tolling." See also Ferguson, 321 F.3d at 822 (application of § 2244 bar where federal limitation period expired before timely state post-conviction petition was initiated did not violate the Suspension Clause). Accordingly, petitioner cannot prevail on this argument.
RECOMMENDATION
Based on the foregoing, I recommend that the Petition for Writ of Habeas Corpus (#2) and petitioner's Motion to Grant Petition Forthwith and Alternative Motion for Evidentiary Hearing (#27) be DENIED, and this action be dismissed.
SCHEDULING ORDER
Objections to these Findings and Recommendations, if any, are due January 29, 2004. If no objections are filed, the Findings and Recommendations will be referred to a district court judge and go under advisement on that date.If objections are filed, the response is due no later than February 13, 2004. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will be referred to a district court judge and go under advisement.