Opinion
No. C 00-2316 TEH (pr)
February 9, 2001
ORDER OF DISMISSAL
INTRODUCTION
Rene Mejia, a prisoner at the California State Prison in Represa, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. With his petition for writ of habeas corpus, Mejia also filed a "Motion To Reinstate Habeas Corpus Proceedings." Respondent has moved to dismiss the petition as untimely under 28 U.S.C. § 2244 (d) and as procedurally defaulted. Mejia has opposed the motion. For the reasons discussed below, the court will deny the motion to reinstate the habeas corpus proceedings, grant the motion to dismiss, and dismiss the petition as untimely.
BACKGROUND
In 1996, Mejia was convicted in the San Francisco County Superior Court of first degree murder with use of a deadly weapon. He was sentenced to 25 years to life in prison. Mejia appealed. His conviction was affirmed by the California Court of Appeal on February 27, 1998. He did not file a petition for review in the California Supreme Court.
Mejia filed a petition for writ of habeas corpus in the California Supreme Court on February 23, 1999. The California Supreme Court denied the petition on May 26, 1999, with citations to In re Waltreus, 62 Cal.2d 218, 225 (1965) and In re Swain, 23 Cal.2d 300, 304 (1949).
Mejia filed two federal petitions for writ of habeas corpus. His first petition was filed on July 7, 1999 and dismissed on September 16, 1999 for failure to pay the filing fee or file an in forma pauperis application. See Mejia v. Pliler, No. C99-3299 TEH. Mejia filed the current federal petition on June 20, 2000. Attached to his current petition is a "Motion To Reinstate Habeas Corpus Proceedings," in which he asks the court to relate the current petition back to the date of the filing of the first federal petition because of difficulties Mejia had in communicating with his inmate helper and because of his limited grasp of the English language.
Both state and federal petitions for writ of habeas corpus filed by prisoners are deemed filed as of the date they are given to prison officials to mail to the court. See Saffold v. Newland, 224 F.3d 1087, 1091 (9th Cir. 2000). In order to reduce confusion in calculating the one-year limitations period, the court refers to the date of mailing as the filing date where the mailing date has been provided. For example, Mejia's proof of service indicates he gave the current petition to officials for mailing on June 20, 2000, the envelope containing the petition was postmarked on June 23, 2000, and it was stamped "filed" at the court on June 29, 2000. The date Mejia gave the petition to officials for mailing is treated as the filing date, so that the court considers June 20, 2000 as the date the petition was filed for purposes of determining compliance with the one-year limitations period.
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 limitations on petitions for a writ of habeas corpus filed by state prisoners. A petition filed by a prisoner challenging a non-capital state conviction or sentence generally now must be filed within one year from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A).
Mejia's conviction became final on April 8, 1998, when the deadline passed for him to file a petition for review in the California Supreme Court following the California Court of Appeal's affirmance of his conviction on February 27, 1998. Leg Cal. Rules of Court 24 (decision of court of appeal becomes final as to that court thirty days after filing), 28 (party seeking review must petition for review within ten days after the decision of the court of appeal becomes final as to that court); cf. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (AEDPA statute of limitations period begins to run on the date the ninety-day period to petition for writ of certiorari expires). Mejia presumptively had until April 8, 1999 to file his federal habeas petition. Mejia's current petition was not filed until June 20, 2000, many months after that deadline. Unless he is entitled to some tolling, his petition is time-barred.
The first step is to determine whether the limitations period was tolled under the statute's own language. The limitations period is tolled for the time period "during which a properly filed application for State post-conviction or other collateral review" is pending in state court. 28 U.S.C. § 2244 (d)(2). An application for collateral review is pending in state court for "`all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.'" Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (quoting Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999)), cert. denied, 120 S.Ct. 1846 (2000). The limitations period is not tolled between the conclusion of direct review and the date on which the first state collateral challenge is filed. See id.
Mejia is entitled to statutory tolling from February 23, 1999 until May 26, 1999, the time during which his state habeas petition was pending. When he filed his state habeas petition on February 23, 1999, 320 days of the one-year limitations period had passed. Once the state petition was denied, the clock resumed ticking on May 27, 1999 and Mejia had only 45 more days left on the one-year limitations period. Thus, he had to file his federal petition by July 15, 1999 to meet the one-year statute of limitations deadline unless the deadline was further postponed by some other tolling event.
Respondent argues that Mejia should not receive any tolling for the pendency of the state habeas petition because it was rejected as procedurally improper and there ore was not properly filed. A Supreme Court decision announced after respondent filed his brief requires the rejection of that argument. See Artuz v. Bennett, 121 S.Ct. 361, 362 (2000) (that petition for state postconviction relief contains procedurally barred claims does not render it improperly filed for purposes of tolling the one-year limitation period under § 2244(d)(2)).
Mejia receives no statutory tolling for the period during which his first federal petition was pending in this court. The statute of limitations simply cannot be read to allow tolling for the pendency of a federal petition. See Jiminez v. Rice, 222 F.3d 1210, 1214 (9th Cir. 2000) ("section 2244(d)(2) does not toll the AEDPA limitations period while a federal habeas petition is pending").
The second step is to determine whether the limitations period should be equitably tolled because limitations period is subject to equitable as well as the statutory tolling described above. Equitable tolling of the limitation period is available upon a showing of extraordinary circumstances beyond a petitioner's control, see, e.g., Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (equitable tolling will not be available in most cases because extensions of time should only be granted if extraordinary circumstances beyond prisoner's control make it impossible for him to file petition on time), cert. denied, 118 S.Ct. 988, and cert. denied, 118 S.Ct. l389 (l998), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998)(enbanc), cert. denued, 119 S.Ct. 1377 (1999).
Three potentially tolling events exist in this case: Mejia's first federal petition, Mejia's limited access to a helper, and Mejia's limited language skills. Mejia receives no equitable tolling for the period during which his first federal habeas petition was pending. The failure to pay a filing fee or file an in forma pauperis application as required by the court was not an extraordinary circumstance beyond his control, but instead was a voluntary (albeit unwise) choice by Mejia which resulted in the dismissal of the first federal action. He has not shown that the pendency and dismissal of the first federal petition resulted from any "extraordinary circumstances" beyond his control that made it impossible to file the current petition on time. See Beeler, 128 F.3d at 1288.
Mejia's contention that the limitations period should be equitably tolled due to a continuous prison lockdown is not persuasive. When he filed the petition in this action, his inmate helper tried to explain the delay in filing. The inmate helper stated that the prison had been on "lockdown that lasted from May 23, 1999 until approximately February 2000" and therefore it was "impossible" for them to communicate to file the necessary forms. Petition, p. 11. Mejia told a different story in his habeas petition in Case No. C99-3 299 TEH, where he explained that the prison lockdown that started on May 23, 1999 had ended a month later and then he was able to communicate with his inmate helper to file that petition. (See C99-3299 TEH Petition (at last page and exhibit thereto). Although there may have been intermittent lockdowns during that time, Mejia's present argument that there was a continuous lockdown from May 23, 1999 until February 2000 is not believable. Moreover, any lockdown that ended in February 2000 would not explain the four-month delay between the termination of the lockdown and the filing of the current federal petition in June 2000. The court cannot arbitrarily pick a number of days or weeks to toll based on some generalized problem or difficulty a petitioner has encountered. Rather, equitable tolling depends on a specific showing by a petitioner that a particular problem prevented him from meeting the deadline for a particular amount of time.
The court also rejects Mejia's contention that his limited grasp of the English language should excuse his delayed filing. Mejia's inmate helper assisted him and bridged any gap due to Mejia's limited grasp of the English language. Mejia has not shown an extraordinary circumstance beyond his control that prevented him from timely filing the current petition. Mejia's allegedly hindered communications with his inmate helper and his limited language skills are not extraordinary circumstances warranting equitable tolling. Cf. Hiivala v. Wood, 195 F.3d 1098, 1105-06 (9th Cir. 1999) (inmate suffered a gunshot wound and was repeatedly transferred between institutions for six months; no "cause" shown to avoid procedural bar because his attorney had sent him a completed personal restraint petition for his signature a month before the deadline and warned him to file it as soon as possible, and inmate had the court address to which to send the petition); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy of pro se petitioner not sufficient to meet standard of an objective, external factor amounting to "cause" for purposes of avoiding procedural bar on habeas claims); see also Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir.
1988) (mental condition of pro se petitioner and reliance upon allegedly incompetent jailhouse lawyers did not constitute "cause").
Finally, equitable tolling might be available upon a showing of actual innocence that would result in manifest injustice, see, e.g., Schlup v. Delo, 513 U.S. 298, 329 (1995) (petitioner must persuade district court that, in light of new evidence, no juror, acting reasonably, would have voted him guilty beyond a reasonable doubt), but the court need not decide whether tolling is available in such a case because this case does not present such a scenario. Mejia is not entitled to any equitable tolling.
Mejia's petition filed on June 20, 2000 was inexcusably late by about eleven months and is barred by 28 U.S.C. § 2244(d)(1). Because the petition must be dismissed as untimely, the court need not reach respondent's alternative argument, i.e., that the petition is procedurally barred.
The court has considered the arguments in Mejia's "Motion To Reinstate Habeas Corpus Proceedings" in determining whether to equitably toll the limitations period. The court will not, however, reinstate the earlier dismissed federal action or relate the current filing back to the earlier petition. The court did not retain jurisdiction when it dismissed the earlier action and there is no justification for deeming the current petition to relate back to the date of the original filing of the petition in this action. See Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999).
CONCLUSION
Respondent's motion to dismiss is GRANTED. Petitioner's motion to reinstate habeas corpus proceedings is DENIED. The petition is dismissed because it was not timely filed. The clerk shall close the file.
IT IS SO ORDERED.
JUDGEMENT
Pursuant to the Order Of Dismissal signed today, this action is dismissed.
IT IS SO ORDERED AND ADJUDGED.