Opinion
Civil No. 02-1084-CO.
May 14, 2004
FINDINGS AND RECOMMENDATION
Petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his convictions in Deschutes County Circuit Court Case no. 96CR0140AB. (Respondent's Exhibit 101). The petition contains four grounds for relief. Respondent argues that petitioner did not file his habeas corpus petition within the time allowed by 28 U.S.C. § 2244. For the reasons set forth below, petitioner's petition should be denied and this proceeding should be dismissed.
BACKGROUND
Petitioner was convicted of five counts of Assault in the Second Degree and six counts of Assault in the Third Degree. (Respondent's Exhibit 101). Petitioner directly appealed his convictions to the Oregon Court of Appeals. The Oregon Court of Appeals affirmed his convictions without opinion in State v. Stucky, 150 Or. App. 370 (1997), and the Oregon Supreme Court denied review, 326 Or. 235 (1997). The appellate judgment was issued on April 6, 1998. (Respondent's Exhibit 103).On November 17, 1999, petitioner filed a petition for post-conviction relief in Umatilla County Circuit Court Case No. CV991470, but the post-conviction court denied relief. (Respondent's Exhibits 106-107). Petitioner appealed to the Oregon Court of Appeals, but the court affirmed without opinion in Stucky v. Hill, 182 Or. App. 676 (2002). Petitioner did not seek review with the Oregon Supreme Court. The appellate judgment is dated September 9, 2002. (Respondent's Exhibits 108-109).
DISCUSSION
This petition was filed on August 8, 2002. Therefore, the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) govern this case. The AEDPA imposes a one-year statute of limitations on the filing of federal habeas corpus petitions by state prisoners. 28 U.S.C. § 2244(d)(1). The one-year statute of limitations begins to run 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;
©) 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) (A-D).
The AEDPA provides that the statute of limitations is tolled during the time that a state prisoner is attempting to exhaust his claims in state court. Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000) (citing 28 U.S.C. § 2244(d)(2)). In addition, the "statute of limitations is tolled 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." Id. at 1006 (citation omitted). However, the "AEDPA's statute of limitations is not tolled from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed because there is no case `pending' during that interval." Id.
In this case, petitioner's direct appeal was final on April 6, 1998. (Respondent's Exhibit 103). Petitioner had 90 days in which to seek certiorari from the U.S. Supreme Court. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). The date of the final disposition of petitioner's direct appeal for AEDPA statute of limitation purposes was July 6, 1998. Therefore, the statute of limitations began to run on this date.
Petitioner had one year from July 6, 1998 to file his habeas corpus petition. Petitioner filed his petition for post-conviction relief on November 17, 1999. (Respondent's Exhibit 104-105). The AEDPA's statute of limitations is not tolled "from the time a final decision on direct state appeal and the time the first state collateral challenge is final because there is no case `pending' during that interval." Nino, 183 F.3d at 1006. The AEDPA's one year statute of limitations ran before petitioner filed his petition for postconviction relief.
Absent equitable tolling, petitioner's petition is untimely. To be entitled to equitable tolling, a petition must demonstrate extraordinary circumstances beyond the petitioner's control that made it impossible to file a timely petition. Allen v. Lewis, 255 F.3d 798, 799-800 (9th Cir. 2001), rehearing en banc granted, 278 F.3d 1357 (9th Cir. 2002).
Petitioner argues that he had insufficient notice of the applicable statute of limitations due to inadequate access to legal materials and advice while housed at the Eastern Oregon Correctional Institution (EOCI) in Pendleton, Oregon. Petitioner claims that while in Arizona he had no access to a law library or help of a legal assistant. Petitioner also argues that failure to equitably toll the federal statute of limitations will result in a suspension of the writ of habeas corpus. In the alternative, petitioner requests an evidentiary hearing.
The court finds that the issue of the availability of legal resources available to inmates at EOCI has been decided in Reid v. Lampert, 02-847-AS and the court found that there was no basis to show the prison library was inadequately stocked. This court agrees with that opinion.
The evidence shows that petitioner had access to the EOCI library and that he was informed of the procedures from obtaining assistance from the inmate assistants. Petitioner's appellate counsel informed him of the one-year statute of limitation. (Petitioner's Exhibit 12 ¶ 2). Respondent has submitted Exhibit # 110 — affidavit of Mark Schachtsick, Exhibit 111 — affidavit of Trent Axen, and Exhibit 153 — affidavit of Marilyn Wachal which demonstrates that information regarding the AEDPA's statute of limitations was available to inmates. Therefore, the State of Oregon did not prevent petitioner from filing his state post-conviction petition.
Petitioner has failed to demonstrate that equitable tolling in warranted in this case. See Patton v. Lampert, 00-1184-AA (D.Or.) Order dated May 14, 2002). The court finds that an evidentiary hearing is not warranted in this case because there is adequate information in the record.
In the alternative, petitioner argues that the court should toll the limitations period during the two-year period that Oregon allows for prisoners to file state post conviction petitions because failure to do so results in an indirect suspension of the writ of habeas corpus. The Ninth Circuit has rejected the argument that the AEDPA's one-year statute of limitations unconstitutionally suspended the writ of habeas corpus in light of the fact that it is not jurisdictional and is subject to equitable tolling. Ferguson v. Palmateer, 321 F.3d 820 (9th Cir.), cert. denied, 2003 WL 21928909; Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000).
RECOMMENDATION
Based on the foregoing, it is recommended that petitioner's petition (#2) be denied, and this case be dismissed.
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 ten 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 have ten days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.