Opinion
No. C 02-2263 VRW (PR).
July 16, 2003.
ORDER GRANTING MOTION TO DISMISS (Doc # 16)
Petitioner, a state prisoner currently incarcerated at Pleasant Valley State Prison in Coalinga, California, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on July 31, 2002, the court found that his petition appeared to contain colorable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent instead moved to dismiss the petition on the ground that it is untimely. Petitioner has filed an opposition and respondent has filed a reply. (Petitioner has also filed a "clarification" to respondent's reply.)
BACKGROUND
On July 21, 1999, petitioner pleaded guilty in the Superior Court of the State of California in and for the County of Santa Clara to possession of methamphetamine for sale, and admitted that he had suffered 12 prior "strike" felony convictions. On August 20, 1999, he was sentenced to 25 years to life in prison pursuant to California's Three Strikes Law. Petitioner did not appeal.
On January 16, 2001, petitioner filed a petition for a writ of habeas corpus in the Superior Court of the State of California in and for the County of Santa Clara. The court found that petitioner was procedurally barred for failing to bring his claims on appeal and denied the petition on February 15, 2001.
On August 13, 2001, petitioner filed a motion for relief from default for failure to file a timely notice of appeal in the California Court of Appeal. It was denied on September 12, 2001.
On October 1, 2001, petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. It was denied on February 26, 2002.
On December 26, 2001, petitioner filed a petition for a writ of habeas corpus in the Supreme Court of California and, on March 6, 2002, petitioner filed a second petition for a writ of habeas corpus in the Supreme Court of California. Both petitions were denied on April 17, 2002.
On May 9, 2002, petitioner filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996 and imposed for the first time a statute of limitation on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year time limit. Id § 2244(d)(2).
A state prisoner with a conviction finalized after April 24, 1996, such as petitioner, ordinarily must file his federal habeas petition within one year of the date his process of direct review came to an end. See Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). Here, because petitioner did not appeal after the Superior Court pronounced judgment on August 20, 1999, his process of direct review came to an end on October 19, 1999, when the time for filing a notice of appeal expired. See Cal Rule of Court 31(a) (appeal from criminal judgment must be filed within 60 days after rendition of judgment); see also Cal Rule of Court 31(b) (appeal from criminal judgment entered upon a plea of guilty or nolo contendere must be filed within 60 days after judgment is rendered and must be in form of a request for a certificate of probable cause as required by Cal Penal Code § 1237.5). The one-year limitation period accordingly began running against petitioner the next day, October 20, 1999. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (calculating AEDPA's one-year limitation period according to Federal Rule of Civil Procedure 6(a)). The instant petition was not filed until May 9, 2002, however. It is untimely unless the limitation period was tolled for a substantial period of time.
Cf. Smith v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002) (limitation period began running day after time to seek discretionary review of California Court of Appeal's decision in the Supreme Court of California expired, which was 40 days after the Court of Appeal filed its opinion) (citing Cal Rules of Court 24(a), 28(b), 45(a) Cal Civ Proc Code § 12a).
Section 2244(d)(2) tolls the one-year limitation period for 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." 28 U.S.C. § 2244(d)(2). Unfortunately for petitioner, by the time he filed his first state habeas petition on January 16, 2001, the one-year limitation period had already expired on October 19, 2000. A state habeas petition filed after AEDPA's statute of limitation ended cannot toll the limitation period under § 2244(d)(2). SeeFerguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003);Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Section 2244(d)(2) cannot "revive" the limitation period once it has run (i.e., restart the clock to zero); it can only serve to pause a clock that has not yet fully run. "Once the limitations period is expired, collateral petitions can no longer serve to avoid the statute of limitations." Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (SDNY 1998).
Petitioner claims that he is entitled to tolling under § 2244(d)(2) for various filings he made in the state courts before he filed his first state habeas petition on January 16, 2001. However, none of the pleadings he cites constitute "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim." 28 U.S.C. § 2244(d)(2). For example, petitioner's motions for appointment of counsel and for records to help him prepare a petition for a writ of habeas corpus, allegedly filed in state superior court on January 14, 2000 and October 2, 2000, respectively, and promptly denied by the state court, did not toll the limitation period because the motions did not constitute an actual challenge to petitioner's conviction. SeeHodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001); see alsoWoodford v. Garceau, 123 S Ct 1398 (2003) (request for counsel in capital case is not equivalent to an actual habeas petition for purpose of determining whether AEDPA applies).
Although petitioner attempted to file a notice of appeal from his conviction on January 14, 2000, the notice did not reinitiate the process of direct review that had come to an end on October 20, 1999 or toll the limitation period under § 2244(d)(2). The notice was in fact returned to petitioner by the state court without filing because the time for filing a notice of appeal had elapsed. Cf. Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (application "properly filed" under § 2244(d)(2) if its delivery and acceptance are in compliance with applicable laws and rules governing filings); Jenkins v. Johnson, 330 F.3d 1146, 1154 (9th Cir. 2003) (application "pending" under § 2244(d)(2) if petitioner invoked procedure "available" to him under state law).
Petitioner also claims that he is entitled to equitable tolling because he was subjected to "lockdowns" at various prisons during the pertinent time period. Specifically, he claims that he was subjected to three lockdowns: (1) a lockdown at the San Quentin State Prison ("SQ") Reception Center for 107 days from approximately August 25, 1999 to December 9, 1999; (2) a lockdown at California State Prison, Los Angeles County ("LAC") for 20 days from approximately December 9, 1999 to December 28, 1999; and (3) a lockdown at the California Substance Abuse Treatment Facility and State Prison, Corcoran ("SATF") for "approx. 90 days" from "approx. 5/25/00 to late August of the year 2000."
Equitable tolling will not be available in most cases because extensions of time should be granted only if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Beeler, 128 F.3d at 1288 (citation and internal quotation marks omitted). "Indeed, the threshold necessary to trigger equitable tolling under AEDPA 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). Consequently, "[t]ransfers between prison facilities, solitary confinement, lockdowns, restricted access to the law library and an inability to secure court documents [generally] do not qualify as extraordinary circumstances."Lindo v. Lefever, 193 F. Supp.2d 659, 663 (EDNY 2002). This court must nonetheless be mindful that whether equitable tolling is in order turns on an examination of detailed facts. SeeStillman v. Lamarque, 319 F.3d 1199, 1202 (9th Cir. 2003);Lott v. Mueller, 304 F.3d 918, 923 (9th Cir. 2002). Ultimately, petitioner bears the burden of showing that this "extraordinary exclusion" should apply to him. Miranda, 292 F.3d at 1065.
In response to petitioner's equitable tolling claim, respondent has submitted detailed evidence showing that the alleged lockdowns did not apply to petitioner, were in effect for less time than petitioner alleges and/or did not restrict petitioner's ability to access the law library or otherwise file a petition for post-conviction relief. With respect to the alleged 107-day lockdown at the SQ Reception Center from August 25 to December 9, 1999, for example, respondent shows that only 50 of those days are relevant to petitioner's equitable tolling claim because the one-year limitation period did not begin running against petitioner until October 20, 1999. Specifically, the only relevant period of petitioner's alleged lockdown at the SQ Reception Center is the period from October 20, 1999, when the one-year limitation period began running against petitioner, to December 9, 1999, when petitioner transferred out of SQ. In addition, the evidence shows that petitioner was not in fact subject to a lockdown in the literal or traditional sense, but instead subject to the tighter restrictions applicable to all inmates housed at the SQ Reception Center awaiting transfer to a permanent facility. Access to the law library was permitted "Monday through Thursday between the hours of 1000 and 1300" with prior approval. Inmates were simply required to put in a request in advance. Petitioner does not allege, let alone show, that he ever attempted and was refused access to the law library while he was housed at the SQ Reception Center.
With respect to the alleged 20-day lockdown at LAC from December 9 to December 28, 1999, the evidence shows that petitioner was not subject to lockdown and was only subject to limited access to the law library for a matter of days. Specifically, the evidence shows that there was a lockdown at LAC during the alleged time period, but it was partial and did not restrict white inmates such as petitioner. And although law library access was limited from December 6 to December 15, 1999 — "Access for only active cases with court deadlines, as approved by the Library Technical Assistant" — unlimited access was restored for the remainder of the alleged time period. Petitioner does not allege, let alone show, that he ever attempted and was refused access to the law library while he was at LAC.
With respect to the alleged 90-day lockdown at SATF from May 25 to late August 2000, the evidence shows that from May 25, 2000, when petitioner arrived at SATF, to June 13, 2000, petitioner was not subject to lockdown. There was a lockdown in petitioner's housing unit during part of that time period, but it did not affect or restrict law library access for white inmates. From June 13 to July 12, 2000, petitioner was subject to a partial lockdown that included white inmates and limited law library access to "active cases with court deadlines." From July 12 to August 27, 2000, petitioner was not subject to lockdown — from July 12 to 18, 2000, there was a partial lockdown that did not affect white inmates, and from July 18 to August 27, 2000, there was no lockdown affecting any inmates in petitioner's housing unit. From August 27 to 29, 2000, petitioner's housing unit was on complete lockdown with law library access limited to "active cases with court deadlines." From August 29 to 31, 2000, petitioner was not subject to lockdown. There was a lockdown in petitioner's housing unit during that time period, but it did not affect or restrict law library access for white inmates. In sum, petitioner was subject to lockdown during the alleged time period at SATF for a total of 31 non-consecutive days. And although law library access was limited during those days, he does not allege, let alone show, that he ever attempted and was refused access.
Petitioner is not entitled to equitable tolling based on his allegations of repeated lockdowns. Although the evidence shows that petitioner was subject to lockdown or other restriction on accessing the prison law library for approximately 40 days, he had at least 325 other days in which to prepare and file a petition before the limitation period expired. It simply cannot be said that petitioner's being subject to lockdown or other restriction on accessing the prison law library for 40 non-consecutive days out of a year amounted to extraordinary circumstances that prevented him from filing a petition on time. Cf. Stillman, 319 F.3d at 1202 (finding equitable tolling warranted where prison litigation coordinator promised prisoner's lawyer to obtain prisoner's signature in time for filing petition, but then broke his promise, causing petition to be late). After all, petitioner had nearly two months after the last restriction on his access to the prison law library was lifted on August 29, 2000 to prepare and file a petition before the limitation period expired. Cf. Lott, 304 F.3d at 920 (finding equitable tolling warranted where prisoner received materials he needed to prepare his petition only 6 days before limitation period expired). Petitioner has not shown that this "extraordinary exclusion" should apply to him. Miranda, 292 F.3d at 1065.
To be sure, petitioner's efforts to challenge his conviction in the state courts and file a federal petition on time were likely hindered by his lack of understanding of California's post-conviction process and AEDPA. Unfortunately for petitioner, however, pro se status and lack of understanding of the law and legal process are not considered extraordinary circumstances entitling pro se prisoners to equitable tolling. See Felder v. Johnson, 204 F.3d 168, 172-73 n10 (5th Cir. 2000) (mere ignorance of the law or lack of knowledge of filing deadlines does not justify equitable tolling of AEDPA's limitation period) (citing cases); Cantu-Tzin v. Johnson, 162 F.3d 295, 299-300 (5th Cir. 1998) (pro se status during state habeas proceedings did not justify equitable tolling); see alsoHughes 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).
Petitioner's contention that he was mislead to believe that the California Appellate Project "would file proper papers to appeal his case" after he unsuccessfully attempted to do so pro se does not compel a different result. The record makes clear that the Project informed petitioner that they might be able to assist him in seeking a late appeal if there were grounds for requesting such extraordinary relief, but shortly after receiving all necessary information from petitioner concluded that there were no grounds for seeking a late appeal. Petitioner is not entitled to equitable tolling based on the Project's alleged "ineffective[ness] and gross negligence." Cf. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (general claims of attorney negligence not enough).
CONCLUSION
For the foregoing reasons, respondent's motion to dismiss the petition as untimely (doc # 16) is GRANTED.The clerk shall enter judgment in favor of respondent and close the file.
SO ORDERED.