Opinion
Civil No. 99-1755-ST.
December 12, 2001
Christine Stebbins Dahl, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Hardy Myers, Attorney General, Lynn David Larsen, Assistant Attorney General Department of Justice, Salem, Oregon, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner, an inmate at Snake River Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. Currently before the court is petitioner's Petition for Writ of Habeas Corpus (docket #2). For the reasons set forth below, the habeas petition should be DISMISSED as untimely.
BACKGROUND
After being convicted in 1994 in Umatilla County of Third Degree Rape and Aggravated Murder for crimes committed against Naomi McMahill, a 14 year-old hitchhiker, petitioner was sentenced to life imprisonment with a 20-year minimum. He directly appealed his convictions, but the Oregon Court of Appeals affirmed the trial court from the bench, and the Oregon Supreme Court denied review. State v. Cox, 147 Or. App. 730, 939 P.2d 172, rev. denied 325 Or. 491, 941 P.2d 1021 (1997). Petitioner did not file a petition for post-conviction relief.
On August 14, 1998, petitioner filed a "Motion for Order to Require Court-Appointed Counsel to Deliver Over a Copy of Defendant's Entire Criminal File" and a "Motion Requesting Order for Umatilla County District Attorney to Deliver Over an Entire Copy of All Files with Petitioner's Name" ("Motions to Compel"). These motions were filed in the Umatilla County Circuit Court where the judgment was entered against petitioner. At the time petitioner commenced this action on December 14, 1999, the state court had not yet acted on his Motions to Compel. These motions were ultimately denied on August 25, 2001. Petitioner's Exh. A.
In the current action, petitioner alleges four grounds for relief: (1) unlawful search and seizure; (2) violation of the privilege against self-incrimination; (3) denial of right to appeal by the State of Oregon; and (4) denial of right to appeal by the State of California.
DISCUSSION
Respondent asks this court to deny habeas corpus relief on the basis that petitioner's habeas petition was not timely filed under 28 U.S.C. § 2244(d)(1). Petitioner maintains that his petition for habeas relief is not untimely because: (1) the motions he filed in Umatilla County should be considered a properly filed petition for post-conviction relief; (2) he is entitled to equitable tolling for the period during which his Motions to Compel were pending; and (3) barring his habeas petition as untimely violates the Suspension Clause of the U.S. Constitution.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted on April 24, 1996. The 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).
"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." (emphasis added) 28 U.S.C. § 2244(d)(2). Petitioner's direct appeal became final on September 5, 1997, the effective date of the appellate judgment. See Respondent's Exh. 106. Thus, absent any tolling of AEDPA's limitations period or the filing of a petition for post-conviction relief, petitioner had until September 5, 1998, to file his petition for writ of habeas corpus. However, petitioner did not file this action until December 14, 1999.
I. Umatilla County Motions
On August 14, 1998, petitioner filed his Motions to Compel in the Umatilla County Circuit Court. He supported these motions with an accompanying memorandum which argued that his trial lawyers were hindering his attempt to pursue state post-conviction remedies by failing to turn their files over to petitioner. Petitioner asks this court to construe his Motions to Compel as a properly filed petition for post-conviction review.
Copies of petitioner's pleadings in Umatilla County are attached to the Petition for Writ of Habeas Corpus (docket #2).
An application for collateral review is properly filed "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz v. Bennett, 531 U.S. 4, 8 (2000); Dictado v. Ducharme, 244 F.3d 724, 726-27 (9th Cir. 2001). Under Oregon law, a petition for post-conviction relief is the exclusive remedy for challenging the lawfulness of a conviction. O.R.S. 138.540(1). A petition for post-conviction relief must be filed in the county of imprisonment. O.R.S. 138.560(1).
Petitioner is incarcerated at Snake River Correctional Institution in Malheur County, Oregon. As noted above, petitioner filed his Motions to Compel in Umatilla County. Consequently, even if the court were to classify petitioner's Motions to Compel as a post-conviction petition, petitioner nevertheless filed his motions in a jurisdiction which had no authority to entertain his claims. Accordingly, petitioner's Motions to Compel should not be construed as a properly filed application for state post-conviction relief pursuant to 28 U.S.C. § 2244(d)(2).
II. Equitable Tolling
Petitioner next argues that, given the extended delay of the Umatilla County Circuit Court in responding to his Motions to Compel, AEDPA's statute of limitations for filing habeas corpus actions should be tolled until August 25, 2001, when the court finally denied the motions.
Although the Ninth Circuit has authorized equitable tolling, it is not available in most cases. Equitable tolling is appropriate when external forces beyond a petitioner's control make it impossible for him to file a timely petition. 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); see also Calderon v. United States District Court, 128 F.3d 1283, 1289 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Court, 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied 526 U.S. 1060 (1999).
Petitioner alleges that his failure to meet the statutory deadline for filing his habeas petition is due to an unreasonable delay by the state court in responding to his motions, prejudicing his ability to meet AEDPA's statute of limitations. Specifically, petitioner contends that he submitted his Motions to Compel to the Umatilla County Circuit Court on August 8, 1998, and, after waiting more than a year without receiving a response, decided to file his federal petition for writ of habeas corpus.
It is apparent that, despite not having received the legal materials which he sought in his Motions to Compel, petitioner was nevertheless able to file his federal habeas petition. Petitioner fails to explain why he was able to file his habeas petition without access to these materials, but was unable to file a petition for post-conviction relief. Moreover, petitioner has not explained why he failed to file a very basic petition for post-conviction relief. Had he done so, the court would have appointed counsel to represent him. Counsel could then have obtained the desired legal materials and amended the petition for post-conviction relief.
An indigent prisoner petitioning for post-conviction review is entitled to the appointment of counsel to represent him throughout his circuit court proceedings. Appointed counsel may move to amend the petition filed by an indigent prisoner within 15 days following counsel's appointment, or within such further time period as the court may allow. O.R.S. 138.590(3) and (4).
Petitioner counters that he was diligent in attempting to gather the information he needed, so fault should not be attributed to him for the long delay. In support of his position, he claims to have written eight letters to the Umatilla County Circuit Court inquiring as to the status of his pending motions. However, petitioner has provided one of those letters in support of this assertion. Petitioner's Exh. B. Consequently, petitioner has neither proven diligence, nor convinced the court that external forces beyond his control made it impossible for him to file a petition for post-conviction relief. Accordingly, equitable tolling in petitioner's case should not be applied.
III. Suspension Clause
Finally, petitioner asserts that denying habeas relief on the basis that it is untimely violates the Suspension Clause of the Constitution. The Suspension Clause provides that "[t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Constitution, Article I, Section 9, Clause 2. Petitioner argues that the AEDPA's one-year limitation on the filing of federal habeas corpus actions is at odds with the Oregon two-year statute of limitations for filing a petition for post-conviction, since the AEDPA requires a petitioner to file his federal habeas petition prior to the end of Oregon's post-conviction limitations period.
The Ninth Circuit has held that the AEDPA's one-year limitations period does not constitute a per se suspension of the writ because it is not jurisdictional and may be subject to equitable tolling. Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) However, the AEDPA's one-year limitations period violates the Suspension Clause if it renders the remedy of habeas corpus "inadequate or ineffective." Green, 223 F.3d at 1003-04 (quoting Swain v. Pressley, 430 U.S. 372, 381 (1977)).
Petitioner bases his suspension argument on the notion that unless he wished to violate the one-year limitations period contained in § 2241(d), he was precluded from taking advantage of the two-year limitations period of Oregon post-conviction relief. While the two limitation periods are inconsistent, this fact, by itself, fails to render the habeas corpus remedy either inadequate or ineffective. If petitioner diligently pursues his state post-conviction remedies within the one year, then the limitations period for habeas corpus relief is tolled during the pendency of his state proceedings. In this case, petitioner had ample time to file even the most basic petition for post-conviction relief, which would have tolled § 2241(d).
Alternatively, if obstacles are placed in a petitioner's path which could not be overcome with due diligence, equitable tolling becomes appropriate and the petitioner would still qualify for federal review. While petitioner in this case has not convinced the court that he was subjected to such obstacles, such an avenue is nevertheless available to others who may be differently situated. In short, the remedy of habeas corpus was made available to petitioner, but he failed to act diligently in pursuing it. Accordingly, petitioner's suspension of the writ argument should be found lacking in merit.
RECOMMENDATION
For the foregoing reasons, the Petition for Writ of Habeas Corpus (docket #2) should be DISMISSED with prejudice.
SCHEDULING ORDER
Objections to these Findings and Recommendation, if any, are due January 4, 2002. 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 no later than January 21, 2002. 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.