Summary
finding that "[a]n attorney's failure to file an appeal is simply not an impediment created by State action"
Summary of this case from Calhoun v. PinionOpinion
No. C 03-1323 SI (pr).
July 31, 2003.
JUDGMENT
The petition for writ of habeas corpus is dismissed because it was not filed by the deadline under 28 U.S.C. § 2244(d).
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL INTRODUCTION
Honesto Bautista Ramos, a prisoner incarcerated at the California State Prison — Sacramento, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition as untimely and Ramos has opposed the motion. For the reasons discussed below, the court will grant the motion and dismiss the petition.
BACKGROUND
Following a jury trial in Santa Clara County Superior Court, Ramos was convicted of attempted premeditated murder, assault with a semi-automatic firearm, possession of a firearm by a felon, and possession of methamphetamine. He also was found to have suffered from a prior "strike" conviction see Cal. Penal Code §§ 667(b)-(i), 1170.12, and a prior serious felony conviction see Cal. Penal Code § 667(a). On March 13, 1998 he "was sentenced to a "double life term' consecutive to 21 years in prison." Petition, Exh. G, p. 3. He did not file a notice of appeal within the sixty-day appeal period allowed under California Rule of Court 31(a).
No later than January 25, 1999, Ramos knew that an appeal had not been taken in his case. Ramos declared under penalty of perjury that the following took place when, after a few months in custody, he did not hear from his attorney or the courts: "I asked a relative, Emanuel San Juan, to contact Mr. O'Sullivan [trial counsel who had agreed to file an appeal] and obtain a copy of the notice of appeal and find out about the progress of the appeal. Emanuel San Juan told me he learned no notice of appeal was ever filed. At this point, my family began negotiating with Mr. O'Sullivan about representing me for appellate review. He demanded additional compensation for the appeal and it took time to raise enough funds. In January 1999, my family paid Mr. O'Sullivan $10,000 to represent me on appeal." Petition, Exh. D, p. 2. Two checks to O'Sullivan were dated January 25, 1999. Petition, Exh. C. O'Sullivan allegedly took the money but did not file an appeal or do anything else helpful and eventually refunded $7,500 of the fee. Id.
On June 13, 2001, Ramos filed an application for relief from default for failure to file a timely notice of appeal. His application was denied by the California Court of Appeal on July 11, 2001. Petition, Exhs. G, H. He attempted to petition for review of the denial in the California Supreme Court but that court refused to accept the petition for filing on August 13, 2001, because it was not received within the jurisdictional time limit. Petition, Exh. I.
In December 2001, Ramos filed a motion for transcripts in the Santa Clara County Superior Court for use in his upcoming habeas petition. The motion was denied on January 2, 2002. Petition, Exhs. K, L. Ramos' petition for writ of habeas corpus in "the California Supreme Court was filed on May 24 or 29, 2002, and denied on February 11, 2003. Petition, Exhs. M-P.
Ramos then filed this action. The proof of service on his federal petition was dated March 25, 2003. The petition was stamped "filed" at the court on March 27, 2003.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996, imposed for the first time a statute of limitations 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).
Ordinarily, the starting date of the limitations period is the date on which the judgment becomes final after the conclusion of direct review or the time passed for seeking direct review. See 28 U.S.C. § 2244 (d)(1)(A). Because Ramos did not timely appeal his conviction, the judgment of conviction became final on May 12, 1998, which was 60 days after he was sentenced. See Cal. Rule Ct. 31. The starting date of the limitations period using the ordinary starting date would have been May 12, 1998. The commencement of the limitations period was not delayed by Ramos' filing of an application for relief from the default for failure to file a timely notice of appeal. His application was denied, and a late appeal was not allowed. His direct appeal process had already concluded and was not revived by his unsuccessful effort to file a late appeal. Similarly, his petition for review (filed to obtain review of the denial of his application for relief from the default) did not have any effect on the commencement of the federal limitation period because the California Supreme Court refused to file the petition for review not received within the jurisdictional time limit.
Ramos argues that the ordinary starting date should not be used because his case fits within 28 U.S.C. § 2244(d)(1)(B), which provides that the limitation period runs from "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." 28 U.S.C. § 2244(d)(1)(B). Ramos claims that his counsel's failure to file an appeal provided such an impediment. He does not persuade the court. An attorney's failure to file an appeal is simply not an impediment "created by State action." Moreover, Ramos has not shown how his attorney's failure to file the state appeal prevented Ramos from filing his federal habeas petition by the deadline. Ramos knew of the failure to appeal no later than January 25, 1999 — about nine months after he was sentenced. Had Ramos acted promptly upon learning that a state appeal had not been filed, he could have filed a state habeas petition (and received tolling for its pendency) and then timely filed a federal habeas petition. Instead, he chose a course of action that severely delayed his arrival in federal court — for example, though he knew no later than January 1999 that an appeal had not been filed, he did not move for relief from that default for another 18 months and did not file his state habeas petition until more than three years after he learned that an appeal had not been filed.
Ramos next argues that the ordinary starting date should not be used because his case fits within 28 U.S.C. § 2244(d)(1)(D), which provides that the limitation period starts on "the date on which the factual predicate of the claim or claims presented could have discovered through the exercise of due diligence." The court accepts that this is the correct provision for determining the starting date of Ramos' one-year period. Ramos states that his trial attorney agreed to file an appeal. When a few months had passed and he heard nothing, he took steps to learn of the progress of the appeal. He eventually learned that an appeal had not been filed. It was not unreasonable for a client to await word from the attorney about the progress of the appeal the attorney allegedly promised to file. Normally, the court would need further information to be able to pin down the dates on which the various events occurred to determine whether a petitioner had exercised "due diligence" in discovering the factual predicate of the claim. That is not necessary here, however, because even accepting the latest date possible as the date on which the petitioner knew the factual predicate of his claim, his petition is still untimely. At the very latest, Ramos knew by January 25, 1999 that an appeal had not been filed. This is the latest date because January 25, 1999 was the date on which checks were written to the attorney to get him to work on the case — a payment that Ramos reports was the culmination of his efforts to learn of the progress of the appeal, his discovery that an appeal had not been filed, his family's negotiations with the attorney for representation, and the time it took for his family to raise the requested funds.
As will be shown below, the delayed start of the limitations does not solve Ramos' timeliness problem because the limitation period that began on January 25, 1999 ended on January 25, 2000 and the federal petition was not deemed filed until March 25, 2003, more than three years after the presumptive deadline.
A special mailbox rule exists to aid prisoners who have no control over when prison mail goes out, by deeming their petitions mailed when they are delivered to prison authorities for mailing. See Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2001) (pro se prisoner's federal habeas petition is deemed filed when prisoner delivers petition to prison authorities for mailing), vacated and remanded on other grounds, Carey v. Saffold, 536 U.S. 214 (2002). The proof of service shows that the petition was mailed on March 25, 2003, which the court deems to be the filing date for Ramos' petition under the mailbox rule.
The one-year statute of limitations can be tolled under § 2244(d)(2) 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). Ramos is not entitled to any statutory tolling because his state habeas petition was not filed until May 29, 2002, after the one-year limitation period had already expired. A state habeas petition filed after AEDPA's statute of limitations period has ended cannot revive or toll the limitation period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed, " even if the state petition was timely filed); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 123 S.Ct. 1627 (2003) (same). Ramos' application for relief from the default for failure to file a timely notice of appeal would not be subject to any statutory tolling because it was not filed until June 13, 2001, after the one-year period had expired. Finally, even if one viewed Ramos' filing of the motion for transcripts as an application for collateral review, the result would not change because that motion was not filed until December 2001, after the one-year period had expired.
The final step is to determine whether equitable tolling applies. Equitable tolling of the limitation period is available upon a showing of extraordinary circumstances beyond a petitioner's control which prevented him from timely filing the petition. 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, 523 U.S. 1, and cert. denied, 523 U.S. 1061 (1998), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999). Ramos contends that he is entitled to tolling because he does not speak English well. Ramos states that his "knowledge of the English language is severely limited" and "beyond basic greetings and general conversation he speaks little English and has difficulty understanding spoken English and reading English." Petition, p. 5 Having limited English-language skills is not an extraordinary circumstance beyond the petitioner's control warranting equitable tolling. Cf. Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy of prose 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").
Ramos also apparently contends that his lawyer's alleged ineffectiveness should entitle him to some equitable tolling. Not so. He has not connected his attorney's alleged negligence in not filing a state appeal to his own failure to timely file a federal habeas petition. And even if he hired an attorney to file a federal habeas petition, an attorney's routine negligence would not constitute an extraordinary circumstance sufficient to warrant equitable tolling. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001), cert. denied, 535 U.S. 1055 (2002) (no tolling for attorney's negligent miscalculation of deadline and general failure to timely file); cf. Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (prisoner entitled to equitable tolling because of combined effect of attorney's negligence AND prison officials's misconduct which caused the late filing).
Ramos is not entitled to any equitable tolling. His petition was inexcusably late and is barred by 28 U.S.C. § 2244(d)(1).
CONCLUSION
For the foregoing reasons, respondent's motion to dismiss the petition as untimely is GRANTED. (Docket # 3.) The petition for writ of habeas corpus is dismissed because it was not filed by the deadline under 28 U.S.C. § 2244 (d). The clerk shall close the file.
IT IS SO ORDERED.