Opinion
2:22-cv-01819-JR
07-01-2024
VICTOR D. SMITH, Petitioner, v. BRAD CAIN, Superintendent of Snake River Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Petitioner, an adult in custody at the Snake River Correctional Institution (“SRCI”) brings this 28 U.S.C. § 2254 habeas corpus action as a self-represented litigant. For the reasons that follow, petitioner's Petition for Writ of Habeas Corpus (ECF No. 2) should be DENIED.
BACKGROUND
On June 21, 2013, a Marion County grand jury indicted petitioner on one count of Murder with a Firearm. Respondent's Exhibits, ECF No. 17 (“Resp. Exh.”) 101, p. 18. Petitioner was tried before a Marion County Circuit Court jury in June 2014, but that trial ended in a hung jury. Transcript Part A, ECF No. 18 (“Tr. A.”), p. 713. The case was re-tried to a second jury in September 2014, which resulted in a unanimous verdict of guilty. Transcript Part B, ECF No. 19 (“Tr. B.”), p. 1616. The trial judge imposed a life term of imprisonment without the possibility of parole for 360 months, finding that a 60-month enhancement to the mandatory minimum term of 300 months was appropriate pursuant to departure factors proven by the State. Tr. B., p. 1647; Resp. Exh. 101, pp. 4-6.
References to the transcript are to the page numbers in the upper right corner of the respective transcript part.
Petitioner filed a direct appeal. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Smith, 278 Or.App. 823, rev. denied, 360 Or. 604 (2016). The appellate judgment issued on December 22, 2016. Petitioner did not seek certiorari from the U.S. Supreme Court.
On March 12, 2018, petitioner filed a petition for state post-conviction relief (“PCR”). Resp. Exh. 110. The PCR trial court granted relief as to one claim, finding that the 60-month enhancement of the mandatory minimum term was not permissible under Oregon law, and concluding that the correct sentence was an indeterminate life sentence with a 300-month minimum term of imprisonment. Resp. Exh. 136, p. 3. The PCR trial court denied relief on petitioner's remaining claims. Resp. Exh. 136, pp. 106. Petitioner appealed, but the Oregon Court of Appeals affirmed without opinion. Smith v. Cain, 316 Or.App. 286 (2021). Petitioner did not seek review from the Oregon Supreme Court, and the appellate judgment issued on February 3, 2022. Resp. Exh. 139.
On November 14, 2022, petitioner signed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, filed in this Court on November 21, 2022. Respondent contends that the petition should be denied because it was not filed within the one-year limitation period provided under 28 U.S.C. § 2244(d)(a)(A). Petitioner concedes his petition was not timely filed but argues the limitation period should be equitably tolled.
LEGAL STANDARDS
Equitable tolling is available to toll the one-year statute of limitations applicable to § 2254 habeas corpus cases. Holland v. Florida, 560 U.S. 631, 645 (2010). A litigant seeking to invoke equitable tolling must establish: (1) he has been pursuing his rights diligently; and (2) that some extraordinary circumstance prevented him from timely filing his petition. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The “'extraordinary circumstances beyond a prisoner's control [must] make it impossible to file a petition on time.'” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Brambles v. Duncan, 330 F.3d 1197, 1202 (9th Cir. 2003)). 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). “The habeas corpus applicant bears the burden of showing that this ‘extraordinary exclusion' should apply to him.” Ostrowski v. Kelly, 639 F.Supp.3d 1084, 1087 (2022) (citing Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002)).
DISCUSSION
As noted, petitioner does not dispute that his petition was not timely filed. He argues, however, that his untimely filing should be excused for two reasons. First, he contends he was unable to access legal materials because he “was transported several times to different institutions,” “was in and out of segregation several times,” and was “confined in a ‘quarantine unit' for an excess amount of time.” Second, he contends that timely filing a habeas petition “was very difficult without the proper know-how of what to look for, ask and/or read.”
Courts have found that prison transfers and lack of access to law library materials can, under certain circumstances, be considered “extraordinary circumstances” sufficient to warrant equitable tolling. Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002); Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009). In the cases finding such, however, the petitioners provided proof of the transfers, such as prison logs showing the time period and the reason for transfer, or proof of lack of access to the library. See Lott, 304 F.3d at 921 (holding that petitioner's transfer from a prison to another could be “extraordinary circumstance” where petitioner provided a copy of the prison log showing two transfers, and an affidavit from an employee of the prison he was transferred into, supporting his claim he lacked access to his file for the transfer period); see also Ramirez, 571 F.3d at 998 (holding that petitioner's lack of access to any library materials during a period of segregation following an inmate attack could constitute “extraordinary circumstances” for the purpose of equitable tolling).
Here, petitioner's limitation period commenced on February 15, 2017, 90 days after judgment issued in his direct appeal. Petitioner filed his state PCR petition 390 days later, on March 12, 2018. The appellate judgment in the state PCR proceeding issued on February 3, 2022. Petitioner's federal habeas petition is dated November 14, 2022, 284 days after entry of the PCR appellate judgment.
Petitioner provides no details as to how his access to legal materials was limited during either the first, 390-day period of time or the second, 284-day period of time. To the contrary, respondent provides evidence that, for the first 390 days of the limitation period, petitioner resided in a single cell at SRCI. Respondent's Supplemental Exhibits, ECF No. 30 (“Resp. Supp. Exh.”), 141, p. 2. Although the cell was in the Intensive Management Unit, petitioner was “able to access the same legal materials to which other [Adults in Custody] have access but must submit a written request for legal materials, which thereafter [would be] delivered to [his] cell.” Resp. Supp. Exh. 141, p. 3. Petitioner provides no evidence he made any efforts to obtain legal materials or to file his habeas petition during this time period.
During the second, 284-day period of time, with the exception of approximately one month at the outset, petitioner was also housed at SRCI. Resp. Supp. Exh. 141, p. 2. He spent approximately the first six months in the general population, during which he could have accessed the law library in person, as well as utilize the assistance of an inmate Legal Assistant in person. Resp. Supp. Exh. 141, p. 3. He was then transferred to the Disciplinary Segregation Unit, where he was again able to access all of the same legal materials to which other inmates have access, albeit upon written request. Resp. Supp. Exh. 141, pp. 3-4. Indeed, during this time, petitioner requested and received the legal forms required to file a federal habeas petition, as well as the legal materials to assist him in preparing his petition. Resp. Exh. Supp. Exh. 141, p. 4.
In the absence of any evidence that petitioner was denied access to legal materials, and in light of the evidence that transfers and restriction to segregation did not hinder petitioner's access, petitioner has not satisfied his burden of showing an “extraordinary circumstance” sufficient to meet the very high threshold necessary to trigger equitable tolling. See Hendon v. Walker, 278 Fed.App'x 762 (9th Cir. 2008) (finding petitioner's argument insufficient to warrant equitable tolling where he asserted his use of the law library was restricted without more); Hunter v. Ryan, No. CIV 09047-TUC-CKJ, 2012 WL 896245, at *5 (D. Ariz. March 16, 2012) (where petitioner claimed “constant” prison transfers and lack of access to law libraries prevented him from timely filing, but provided no evidence or details supporting this argument, petitioner failed to establish “extraordinary circumstance” warranting equitable tolling).
Petitioner also asserts his lack of knowledge of the time limits or the proper know-how of what to “look for, ask for, or read” warrants a finding of equitable tolling. A petitioner's lack of familiarity with the law, however, does not constitute an extraordinary circumstances sufficient to toll the limitations period. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see also Ostrowski, 639 F.Supp.3d at 1087 (“Ignorance of the law . . . does not constitute an extraordinary circumstance that warrants equitable tolling); Ballesteros v. Schriro, CV00-06-675-PHX-EHC(MEA), 2007 WL 666927 (D. Ariz. Feb. 26, 2007) (noting that petitioner's pro se status, ignorance of the law, lack of representation during the applicable filing period, and temporary incapacity do not constitute extraordinary circumstances).
Finally, petitioner has not presented any evidence demonstrating he exercised the requisite diligence entitling him to equitable tolling. See Ostrowski, 639 F.Supp.3d at 1087 (“A petitioner who fails to file a timely petition due to his own lack of diligence is not entitled to equitable tolling”) (citation omitted). Accordingly, petitioner is not entitled to equitable tolling, and his Petition for Writ of Habeas Corpus is subject to dismissal because it is untimely. Id.
CONCLUSION
For these reasons, the Court should DENY the Petition for Writ of Habeas Corpus and enter a judgment of DISMISSAL. A certificate of appealability should be denied as petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have until fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute waiver of a party's right to appellate review of the findings of fact in an order judgment entered pursuant to this recommendation.