Opinion
Matthew Moscoe, Petitioner, Pro se, Tehachapi, CA.
For M. Holland, Respondent: Allison Hewon Chung, CAAG - Office of Attorney General, Califorina Depatment of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
FREDERICK F. MUMM, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the petition be denied and the action be dismissed with prejudice.
I. PROCEEDINGS
Petitioner Matthew Moscoe (" Petitioner"), a state prisoner in the custody of the California Department of Corrections, constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (" Petition") on June 22, 2014. Thereafter, respondent filed a motion to dismiss the Petition as untimely. On August 25, 2014, Petitioner filed an opposition to respondent's motion. Respondent then filed a reply. The matter, thus, stands submitted and ready for decision.
II. PROCEDURAL HISTORY
In 2008, a Los Angeles County jury convicted Petitioner of attempted murder, robbery, and carrying a loaded firearm after suffering a conviction. After several other allegations were found true, Petitioner was sentenced to life, plus twenty-nine years and eight months in state prison.
Petitioner then appealed his conviction. On January 26, 2011, the California Court of Appeal filed an unpublished opinion affirming his conviction. Thereafter, he filed a petition for review in the California Supreme Court, which denied review on March 11, 2011. He then filed a petition for writ of certiorari in the United States Supreme Court, which denied the petition on June 29, 2012.
Eleven months later, on May 29, 2013, Petitioner initiated a series of collateral attacks to his conviction, the first of which he filed in the California Court of Appeal. That petition was denied on October 25, 2013. Next, on November 7, 2013, he attempted to constructively file in the California Supreme Court a petition for review of the court of the appeal's order denying his habeas petition. Petitioner, however, sent the petition to review to the wrong address. Consequently, on November 18, 2013, the petition for review was returned to him. That same day, according to Petitioner, he constructively filed a second petition for review in the California Supreme Court, this time mailing it to the correct address. On December 9, 2013, however, the California Supreme Court ruled that the petition had not been properly filed because, pursuant to California statutory law, the California Supreme Court had lost jurisdiction over any petition for review of the court of appeal's decision on November 25, 2013. Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court on January 3, 2014. On March 26, 2014, the California Supreme Court denied Petitioner's second state habeas petition.
Two months later, on May 26, 2014, Petitioner constructively filed a motion for extension of time in this Court. Therein, he asked to the Court to decide prospectively whether a habeas petition that he was contemplating filing at some unspecified future date in federal court would be time-barred. On July 1, 2014, the Court entered judgment dismissing the action for lack of jurisdiction.
Prior to the dismissal of that action, Petitioner initiated this action on June 22, 2014.
III. DISCUSSION
A. Applicable Law
The current Petition was filed after the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA") was signed into law and is, thus, subject to AEDPA's one-year limitation period, as set forth at 28 U.S.C. § 2244(d). See Calderon v. U.S. Dist. Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997). Title 28 U.S.C. § 2244(d) provides the following:
Beeler was overruled on other grounds in Calderon v. U.S. Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998) (en banc).
(1) A one-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by 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).
B. The Petition Was Not Filed Within the Limitation Period
In most cases, the limitation period begins running on the date on which the petitioner's direct review becomes final. Lopez v. Felker, 536 F.Supp.2d 1154, 1156 (C.D. Cal. 2008). Direct review in Petitioner's case proceeded to the United States Supreme Court, which denied his petition for writ of certiorari on June 29, 2012. Accordingly, his conviction became final on June 29, 2012. See Bowen v. Roe, 188 F.3d 1157, 1159-60 (9th Cir. 1999). Petitioner, therefore, had until June 29, 2013 to file a timely federal petition. 28 U.S.C. § 2244(d)(1)(A). Petitioner, however, constructively filed the instant Petition on June 22, 2014, nearly a year later. Consequently, the present action is untimely, unless statutory or equitable tolling of the limitations period is warranted.
C. Statutory Tolling
Title 28 U.S.C. § 2244(d)(2) provides that " [t]he 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."
The statute of limitations is not tolled between the date on which a judgment becomes final and the date on which the petitioner files his first state collateral challenge because there is no case " pending." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Once an application for post-conviction review commences, it is " pending" until a petitioner " complete[s] a full round of [state] collateral review." Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir. 2003) (citing Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003)). " One full round" generally means that the statute of limitations is tolled while a petitioner is properly pursuing post-conviction relief, from when the petitioner files his first state habeas petition until the California Supreme Court rejects his final collateral challenge. Carey v. Saffold, 536 U.S. 214, 219-20, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002); see also Nino, 183 F.3d at 1006; Delhomme, 340 F.3d at 819. The period tolled includes the time between a lower court decision and the filing of a new petition in a higher court, as long as the interval between the filing of those petitions is " reasonable." Delhomme, 340 F.3d at 819 (citing Biggs, 339 F.3d at 1048 n.1).
Here, statutory tolling does not render this action timely. At most, Petitioner is entitled to 301 days of statutory tolling from May 29, 2013 (the day on which he filed his first state habeas petition) until March 26, 2014 (the day on which the California Supreme Court denied his final state habeas petition). Accounting for 301 days of statutory tolling, Petitioner had until April 28, 2014 to file a timely federal habeas petition. He did not, however, constructively file the present action until June 22, 2014 -- that is, 54 days after the limitations period had expired.
Respondent contends that Petitioner is not entitled to statutory tolling for any period after October 25, 2013 (the day on which the court of appeal denied Petitioner's first state habeas petition) because Petitioner's subsequent petition for review was not properly filed and because he waited too long after the denial of his first habeas petition to file his second habeas petition. The Court, however, need not address this argument because the current action is untimely regardless of whether or not Petitioner is entitled to statutory tolling from October 25, 2013 until March 26, 2014 (the day on which the California Supreme Court denied his final state habeas petition).
Moreover, the motion to extend time that was pending in this Court from May 26, 2014 to July 1, 2014 did not toll the limitations period. Even assuming, argundo, that such a motion, under some circumstances, could toll the limitations period, here the motion was filed after the limitations period had already expired, thus it could have no tolling effect. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that section 2244(d) does not permit the reinitiation of a limitations period once it has expired).
Accordingly, even accounting for 301 days of statutory tolling, the current action is untimely.
D. Equitable Tolling
AEDPA's limitations period may be subject to equitable tolling, if the petitioner shows that extraordinary circumstances prevented him from filing a timely federal habeas petition and that he acted diligently in pursuing his rights. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010); Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). The petitioner bears the burden of showing that equitable tolling is appropriate. Miranda, 292 F.3d at 1065.
Petitioner cites two reasons that, in his view, justify equitable tolling of the statute of limitations. First, he maintains that he is a layman and, therefore, lacked the legal sophistication to present his claims in a timely manner. Second, he maintains that equitable tolling is warranted because he spent several weeks or months in administrative lockdown and, consequently, lacked access to the legal materials that he needed to file a timely petition. Both arguments are addressed in turn below.
1. Lack of Legal Sophistication
The Ninth Circuit has squarely held that " a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling." Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 2009) (" [W]e have held that a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling") (citation omitted). Accordingly, equitable tolling is not warranted in this case based on Petitioner's lack of legal training and sophistication.
2. Lockdowns
Petitioner maintains that he is entitled to equitable tolling because the prison in which he is incarcerated was on lockdown for the following periods: (1) three to four weeks beginning on March 26, 2014; and (2) three weeks beginning on May 14, 2014. During these lockdowns, according to Petitioner, he had no access to the legal materials and supplies that he needed to file a timely habeas petition in this Court. As explained below, this allegation lacks merit.
Routine prison lockdowns, and the inconveniences associated with them, typically do not warrant equitable tolling for the time during which they are in effect. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (petitioner not entitled to equitable tolling simply because he remained in administrative segregation and had limited access to law library and copy machine). Rather, lockdowns warrant equitable tolling only where the lockdown period is substantial and where, during that period, the prisoner is denied access to materials the prisoner needs to file a petition, despite diligent efforts to obtain those materials. See Espinoza-Matthews v. California, 432 F.3d 1021, 1028 (9th Cir. 2005) (equitable tolling warranted where prisoner was repeatedly denied access to requested legal materials while confined in protective administrative segregation for eleven months).
Here, the alleged lockdowns do not warrant equitable tolling. First, Petitioner's allegations are not borne out of the evidence. On the contrary, according to prison records that Respondent submitted in response to Petitioner's equitable tolling arguments, the prison was not on lockdown during either of the periods cited by Petitioner. And, prison records show that Petitioner visited the prison law library on April 2, 2014 -- a day which, according to Petitioner, the prison was in the middle of a three-to-four-week lockdown.
Although the prison was on a " modified program" limiting inmate activity at some points during the early months of 2014 (Reply, Exh. 3, Decl. of Terri Jones ¶ 5), the prison was not on a modified program during either of the time periods identified by Petitioner. (Id. (stating that prison was on modified program from February 2, 2014 until February 20, 2014 and that no additional modified programs occurred until July 5, 2014).) And, even if the prison was on a modified program during the periods that Petitioner identifies, Petitioner nevertheless cannot show that he was denied access to needed legal materials during those periods. On the contrary, the facility in which Petitioner is incarcerated follows a procedure during the periods that it is on a modified program that allows prisoners to request and obtain legal materials from the library through the prison's " paging system." (Id. at ¶ 6.) Pursuant to the prison's paging system, prisoners can request those materials from their cells; in other words, they do not need to physically access the library to obtain needed legal materials. (Id.) Petitioner provides no evidence indicating that he ever requested -- but was denied -- legal materials through the prison's paging system during either of the periods in which he claims that the prison was on lockdown. And, as set forth above, he visited the law library during one of the two periods during which he claims that he was denied access to the library.
Second, even if the prison had been on lockdown, the purported lockdown periods were far from substantial. At most, Petitioner alleges that, beginning on March 25, 2014, the prison was on lockdown for no more than 28 days and that, beginning on May 14, 2014, the prison was on lockdown for approximately 21 days. But (according to Petitioner's allegations), in between these periods, the prison was not on lockdown for 22 days -- that is, one day longer than the alleged second lockdown. Given the brief periods during which the prison was supposedly on lockdown and the fact that it was not on lockdown in between those brief periods, Petitioner cannot credibly argue that the purported lockdowns constitute extraordinary circumstances justifying equitable tolling of the limitations period. Indeed, undercutting Petitioner's claim that the lockdowns warrant equitable tolling is the fact that Petitioner was able to file his motion for extension during the time that the prison was purportedly on lockdown. Further undercutting Petitioner's claim is the fact that the habeas petition that Petitioner filed in this Court is nearly identical to the petitions that he filed in state court. In fact, it appears that Petitioner did little more than copy the habeas petitions that he filed on May 29, 2013 and on January 3, 2014. Given that fact, Petitioner's supposed lack of access to the law library cannot justify equitable tolling of the statute of limitations.
Prison records show that, on June 18, 2014, Petitioner requested three California Supreme Court cases from the law library. Notably, however, none of the cases that Petitioner requested are cited in the habeas petition that he filed in this Court on June 22, 2014.
In sum, Petitioner failed to file his federal habeas petition within one year of the date on which the AEDPA's one-year limitations period began to run. Neither statutory nor equitable tolling brings the Petition within the limitations period. Accordingly, the Petition is time-barred.
III. RECOMMENDATION
The Magistrate Judge therefore recommends that the Court issue an order: (1) approving and adopting this Report and Recommendation and (2) directing that judgment be entered denying the petition with prejudice as time-barred.