Opinion
Civil No. 05cv2189-WQH (LSP).
March 20, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
This Report and Recommendation is submitted to United States District Judge William Q. Hayes, pursuant to 28 U.S.C. § 636(b) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.
I. FEDERAL PROCEEDINGS
Virgel Williams, (hereinafter "Petitioner"), is a state prisoner proceeding pro se and in forma pauperis with a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, challenging his conviction for possession of a deadly weapon in jail. (Doc. No. 1.) Petitioner contends that he received ineffective assistance of counsel because his trial counsel failed to investigate the background of jail personnel who testified against him, and was therefore unable to challenge the credibility of those witnesses. (Attachment to Pet. at 2-6.) Derral Adams, the Warden of the institution where Petitioner is confined, (hereinafter "Respondent"), has filed a Motion to Dismiss the Petition on the grounds it was not filed within the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). (Doc. Nos. 5-6.) Respondent has also lodged portions of the state court record ("Lodgment Nos. 1-11") with the Court. (Doc. Nos. 7-8.) Petitioner has filed an Opposition to the Motion. (Doc. Nos. 10-11.)
For the following reasons, the Court finds that Petitioner is entitled to statutory tolling of the statute of limitations throughout the entire time he was seeking one complete round of collateral review in the state courts, but that his Petition was nevertheless filed after the expiration of the one-year statute of limitations. The Court also finds that Petitioner is not entitled to equitable tolling. Accordingly, the Court recommends Respondent's Motion to Dismiss be GRANTED and the Petition DISMISSED with prejudice.
II. STATE PROCEEDINGS
Petitioner was convicted in the San Diego County Superior Court on July 20, 2001, following a jury trial, of possessing a deadly weapon in jail in violation of California Penal Code § 4574(a). (Pet. at 1.) In a bifurcated hearing the jury found that Petitioner had suffered two prior felony convictions which constituted "strikes" within the meaning of California Penal Code §§ 667(b)-(i) and 1170.12, and had served two prior terms of imprisonment within the meaning of California Penal Code §§ 667.5(b) and 668. (Lodgment No. 1, People v. Williams, No. D03843, slip op. at 1 (Cal.Ct.App. Nov. 14, 2002).) Petitioner was sentenced to a state prison term of 27 years-to-life. (Id. at 1-2.)
Petitioner's appointed appellate counsel filed an appeal of the conviction in the state appellate court which presented no arguable appellate issues, but which requested the court to review the record for errors pursuant to People v. Wende, 25 Cal.3d 436 (1979), and which identified possible but not arguable appellate issues pursuant to Anders v. California, 386 U.S. 738 (1967). (Lodgment No. 1, People v. Williams, No. D03843, slip op. at 2.) After obtaining leave of court, Petitioner filed an appellate brief on his own behalf. (Lodgment No. 11.) On November 14, 2002, the appellate court affirmed the conviction in an unpublished opinion which found that a review of the record had disclosed no reasonably arguable appellate issues. (Lodgment No. 1, People v. Williams, No. D03843, slip op. at 5.) The appellate court issued an order modifying that opinion on December 10, 2002, which made a minor modification in the language of the opinion but did not change the judgment. (Lodgment No. 2, People v. Williams, No. D038403 (Cal.Ct.App. Dec. 10, 2002) (order modifying opinion).)
On January 5, 2003, Petitioner filed a habeas petition in the state superior court. (Lodgment Nos. 3, 10.) The petition was denied in a written order filed April 4, 2003, on the basis that the claims presented had already been raised and rejected by the appellate court on direct appeal. (Lodgment No. 4, In re Williams, No. HCN0684/SCN121313, slip op. at 2 (S.D.Sup.Ct. Apr. 4, 2003).) On August 8, 2003, Petitioner filed a habeas petition in the state appellate court. (Lodgment No. 5.) The appellate court denied the petition in a written opinion filed on September 15, 2003, on the basis that the claims presented had already been raised and rejected on direct appeal. (Lodgment No. 6, In re Williams, No. D042724, slip op. at 1-2 (Cal.Ct.App. Sept. 15, 2003).)
Petitioner is entitled to the benefit of the "mailbox rule" in determining the filing date of each pro se petition, which is the date the petition was presented to the prison authorities for mailing to the court. Houston v. Lack, 487 U.S. 266, 276 (1988). That date is the date of filing used throughout this Order.
On November 11, 2003, Petitioner filed a habeas petition in the state supreme court. (Lodgment No. 7.) That petition was denied by an order filed September 22, 2004, which stated in full: "Petition for writ of habeas corpus is DENIED. George, C.J., was absent and did not participate." (Lodgment No. 8, In re Williams, No. S120645, slip op. at 1 (Cal. Sept. 22, 2004).) Petitioner filed the instant federal Petition over one year later, on November 17, 2005.
III. DISCUSSION
Respondent contends the Petition was filed after the expiration of the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). Specifically, Respondent contends that under Evans v. Chavis, 546 U.S. ___, 126 S.Ct. 846, 852 (2006), Pace v. DiGuglielmo, 544 U.S. ___, 125 S.Ct. 1807, 1812 (2005), andCarey v. Saffold, 536 U.S. 214 (2002), Petitioner is not entitled to statutory tolling of the statute of limitations for any time after the state superior court denied his first habeas petition, because the habeas petitions subsequently filed in the state appellate and supreme courts were untimely. (Respondent's Memorandum of Points and Authorities in Support of Motion to Dismiss ["MTD Mem."] at 5-7.) Respondent also argues that even assuming Petitioner is entitled to statutory tolling for the entire time he was pursuing state post-conviction collateral relief, his federal petition was still filed 66 days late. (Id. at 8.) Finally, Respondent contends that Petitioner is not entitled to equitable tolling. (Id. at 8-9.)
Petitioner argues that Respondent's calculation of the statute of limitations is incorrect and that the instant Petition was filed with 10 days remaining on the statute of limitations. (Petitioner's Memorandum of Points and Authorities in Support of Opposition to the Motion to Dismiss ["Opp. Mem."] at 1.) Petitioner contends that he had 15 months, not one-year, from the date Respondent contends his conviction became final, because Ninth Circuit law provides that the 90-day period in which to seek certiorari in the United States Supreme Court does not count in the application of the statute of limitations. (Id. at 2.) Petitioner contends he is entitled to statutory tolling throughout the entire round of his state habeas petitions, and that, although unnecessary to the resolution of the issue, he is also entitled to equitable tolling. (Id. at 4-8.)
A. The Statute of Limitations Began to Run on December 25, 2002
28 U.S.C. § 2244(d) sets forth the standard for determining when the statute of limitations begins to run:
(d)(1) A 1-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 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;
(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.A. § 2244(d) (West Supp. 2005).
Here, the parties agree that the statute of limitations began to run when the judgment became final at the conclusion of direct review as defined in § 2244(d)(1)(A). However, the parties disagree as to that date.
Respondent contends Petitioner's conviction became final on December 24, 2002, which Respondent calculates as 40 days after the state appellate court issued its order affirming the conviction, and that the statute of limitations began to run the next day, December 25, 2002. (MTD Mem. at 3.) Petitioner contends that Wixom v. Washington, 264 F.3d 894 (9th Cir. 2001) andBowen v. Roe, 188 F.3d 1157 (9th Cir. 1999), both provide that the period of direct review under section 2244(d) includes the 90-day period in which Petitioner may file a petition for a writ of certiorari in the United States Supreme Court. (Opp. Mem. at 1-2.)
Petitioner is correct that generally the conviction of a state prisoner who is denied direct review from the state court of last resort becomes final for purposes of section 2244(d)(1)(A) either upon the expiration of the 90-day period to seek a writ of certiorari from the United States Supreme Court (if the defendant does not file a certiorari petition), or when the Supreme Court denies the certiorari petition (if the defendant files such a petition). Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). However, Petitioner did not seek review in the state supreme court of the appellate court's opinion affirming his conviction. Petitioner contends that he is nevertheless entitled to the 90-day period because Rule 13.1 of the Rules of the Supreme Court of the United States provides that a petitioner has 90 days to submit a writ of certiorari for discretionary review of an intermediate state appellate court. (Opp. Mem. at 2.)
Petitioner's contention, in addition to involving an incorrect interpretation of Supreme Court Rule 13.1, is foreclosed bySmith v. Duncan, 297 F.3d 809 (9th Cir. 2002). The Court inSmith held that where no petition for review is filed in the California Supreme Court following direct review in the lower appellate court, the conviction becomes final, within the meaning of section 2244(d)(1)(A), on the last day the defendant could seek review of the appellate court opinion in the state supreme court, which is 40 days after the appellate court filed its opinion, unless that day is a holiday.Id. at 813. Here, the appellate court filed its opinion on November 14, 2002. (Lodgment No. 1.) December 24, 2002 is the 40th day after the appellate court filed its opinion and the last day Petitioner could have timely filed a petition for review in the state supreme court. Therefore, Petitioner's conviction became final on December 24, 2002, the day his direct review concluded. Smith, 297 F.3d at 813; 28 U.S.C. § 2244(d)(1)(A). The one-year statute of limitations began to run the next day, December 25, 2002. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (providing that the statute of limitations set forth in section 2244(d) shall be calculated according to FED. R. CIV. P. 6(a), which provides that the day of the event from which the designated period of time begins to run shall not be included).
Absent tolling of the statute of limitations, therefore, the last day Petitioner could have timely filed a federal habeas petition would have been December 25, 2003, except that was a legal holiday. Accordingly, the last day Petitioner could have timely filed a federal habeas petition, absent tolling, was on Friday, December 26, 2003. See FED. R. CIV. P. 6(a) ("The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday . . . in which event the period runs until the end of the next day which is not one of the aforementioned days."); Patterson, 251 F.3d at 1246 (holding that the statute of limitations shall be calculated according to FED. R. CIV. P. 6(a)). The instant Petition was filed on November 17, 2005, the date it was handed to prison officials for mailing to the Court. (See Pet. at 11.) Absent tolling, the petition was filed 663 days late.
B. Statutory Tolling
The statute of limitations is tolled while a "properly filed" state habeas corpus petition is "pending" in the state court. 28 U.S.C. § 2244(d)(2). Under the holding of Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), the "statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge," provided the petitions were properly filed and pending that entire time. The meaning of the terms "properly filed" and "pending" in Nino have since been clarified by the United States Supreme Court in the Carey, Pace and Chavis decisions. In Carey v. Saffold, 536 U.S. 214 (2002), the Court held that the time between the denial of a petition in a lower California court and the filing of a subsequent petition in the next higher state court does not toll the statute of limitations (i.e., an application for post-conviction relief is not "pending" during the interstitial periods while one is pursuing a full round of state collateral review), if the petition is ultimately found to be untimely.Id. at 223-26. In Pace v. DiGuglielmo, 544 U.S. ___, 125 S.Ct. 1807 (2005), the Court held that statutory tolling is not available for the period a petition is under consideration (i.e., an application for post-conviction relief is not "properly filed"), if it is ultimately dismissed as untimely. Id. at 1812. In Evans v. Chavis, 546 U.S. ___, 126 S.Ct. 846 (2006), the Court held that in the absence of a clear indication by the California Supreme Court that a petition is untimely, "the federal courts must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Id. at 852.
In the present case, Petitioner filed his first habeas petition in the state superior court on January 5, 2003, and the state supreme court denied his final habeas petition on September 22, 2004. Assuming Petitioner is entitled to tolling for this entire period, tolling would have begun on January 5, 2003, after 11 days had run on the one-year statute of limitations, and ended on September 22, 2004, the day the state supreme court order became final. See Cal. Rule of Court 29.4 (providing that a decision of California Supreme Court in denying a writ within their original jurisdiction issued after January 1, 2003 is final upon filing); see also White v. Klitzkie, 281 F.3d 920, 924 (9th Cir. 2002) (holding that the 90-day period in which to file a petition for certiorari in the United States Supreme Court does not extend tolling of the statute of limitations following denial of an application for post-conviction collateral review). The limitations period would begin to run again on September 23, 2004, and Petitioner would have had 354 days left in which to file his federal Petition. The last day he could have timely filed a federal petition under this scenario would be Monday, September 12, 2005. Thus, even assuming Petitioner is allowed tolling for the entire period he was pursuing one full round of state post-conviction relief, the instant federal Petition, filed on November 17, 2005, was filed 66 days late.
Thus, even if the date the judgment became final is calculated from December 10, 2002, the date the appellate court modified its November 14, 2002 opinion, in which case 11 days did not run on the statute of limitations before tolling began, the outcome would not be affected.
Because it may be relevant to the determination of whether equitable tolling provides a basis for a finding that the Petition was timely, the Court will determine whether theSaffold, Pace and Chavis opinions preclude statutory tolling for the entire period Petitioner was pursuing his one full round of state habeas relief. On January 5, 2003, Petitioner filed a habeas petition in the state superior court. (Lodgment Nos. 3, 10.) As set forth above, the statute of limitations began to run on December 25, 2002, and 11 days had elapsed before it began to be tolled on January 5, 2003. Respondent concedes that the statute of limitations was tolled beginning on January 5, 2003, and continued to be tolled up until the superior court denied the habeas petition on April 4, 2003, but argues that no further statutory tolling applies due to the delay in filing the subsequent habeas petitions. (MTD Mem. at 4-8.)
On August 8, 2003, 126 days after the superior court denied his habeas petition, Petitioner filed a habeas petition in the state appellate court. (Lodgment No. 5.) The appellate court denied the petition in a written opinion filed on September 15, 2003, on the basis that the claims presented had already been raised and rejected on direct appeal. (Lodgment No. 6, In re Williams, No. D042724, slip op. at 1-2 (Cal.Ct.App. Sept. 15, 2003).) Petitioner filed his habeas petition in the state supreme court on November 11, 2003, 57 days after the appellate court denied his habeas petition. (See (Lodgment No. 7, attachment to petition following p. 6.3 (proof of service attached to habeas petition filed in the state supreme court).) That petition was denied more than 10 months later, by an order filed September 22, 2004, which stated in full: "Petition for writ of habeas corpus is DENIED. George, C.J., was absent and did not participate." (Lodgment No. 8, In re Williams, No. S120645, slip op. at 1.)
With respect to the appellate court's denial of the habeas petition, Respondent contends that under Chavis this Court must make an independent determination whether the petition was timely filed. (MTD. Mem. at 6.) Respondent contends the proper approach is to assume, as the Chavis Court did, that every fact Petitioner has cited to justify his delay in filing the habeas petition in the appellate court is true, and then determine whether under California law the petition was untimely. (Id. at 6-7.) Respondent contends Petitioner made no effort to explain or justify the 126-day delay in filing the petition in the appellate court after the previous petition was denied by the superior court, and therefore Petitioner is not entitled to tolling either for that period or while the petition was pending in the appellate court. (Id. at 6.) However, Petitioner stated in the appellate court habeas petition that any delay in presenting the petition was caused by an inadequate prison law library, and he requested the opportunity to further develop the record in that regard if necessary by presenting evidence and expanding his declaration. (See Lodgment No. 5 at 6.1.)
Petitioner contends Chavis is distinguishable from his case because Chavis involved a delay of more than three years between the decision of the appellate court and the subsequent filing in the state supreme court. (Opp. Mem. at 3.) He argues that the Chavis Court questioned a six-month delay as unreasonable, which was considerably longer than his delays of 126 and 57 days. (Id. at 5.) Petitioner also contends that the Ninth Circuit, on remand from the Supreme Court in Saffold v. Carey, found that a delay of four and one-half months did not render a petition untimely, and the Court also identified cases finding delays of 7, 9, 15 and 18 months to be timely. (Id. at 4, citing Saffold v. Carey, 312 F.3d 1031 (9th Cir. 2002), impliedly overruled by Pace v. DiGuglielmo, 544 U.S. ___, 125 S.Ct. 1807 (2005), as recognized in Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005), amended by Bonner v. Carey, ___ F.3d. ___, 2006 WL 539159 (9th Cir. Mar. 7, 2006).) Finally, Petitioner contends that Respondent has failed to identify a single published opinion from a state or federal court suggesting that the gaps involved in this case, four months and two months, support a finding of untimeliness. (Id. at 6.)
Under the holding in Chavis, this Court must first determine whether there is a "clear indication that a particular request for appellate review was timely or untimely," and if not, then the Court "must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Chavis, 126 S.Ct. at 852. With respect to the state appellate court order, there is a clear indication that the appellate court did not deny the petition as untimely. Rather, the petition was denied on the same basis the state superior court denied it, that the claims had already been presented and denied on direct appeal. The appellate court noted that the only new evidence Petitioner submitted was his own declaration. (Lodgment No. 6, In re Williams, No. D042724, slip op. at 1.) The appellate court found that Petitioner was not entitled to present a habeas petition raising claims which had already been raised and rejected on direct appeal unless he could demonstrate a miscarriage of justice as that term is defined under state law. (Id.) The appellate court found no such miscarriage of justice, but did not mention or apply any type of timeliness analysis. Thus, there is no indication that the appellate court dismissed Petitioner's habeas petition because it was untimely. As discussed immediately below with respect to the delay in filing between the appellate and supreme courts, Respondent incorrectly relies on state law regarding the timeliness of the initial filing of a state habeas petition to argue the state petitions here were untimely, rather than state law addressing whether the delay between such filings was unreasonable, as required by Chavis. As a result, Petitioner is entitled to statutory tolling from the date the superior court denied his petition up through and including the date the appellate court denied the subsequent petition.
With respect to the habeas petition filed in the state supreme court, which was filed 57 days after the appellate court issued its opinion denying Petitioner's habeas petition, the state supreme court took over 10 months to consider the petition before denying it with an order which stated in full: "Petition for writ of habeas corpus is DENIED. George, C.J., was absent and did not participate." (Lodgment No. 8, In re Williams, No. S120645, slip op. at 1.) Respondent contends that although Chavis suggests that a filing within 60 days of a lower court denial would satisfy California's "reasonable time" standard, the circumstances of this case and California law indicate the petition was denied as untimely. (MTD Mem. at 6-7.) In particular, Respondent contends that In re Harris, 5 Cal.4th 813, 828 n. 7 (1993), provides that a habeas petition must be filed within a reasonable time after Petitioner knew or should have known the facts underlying his claims, and that In re Swain, 34 Cal.2d 300, 304 (1949), provides that Petitioner was required to justify any delay. (MTD Mem. at 7.) Because Petitioner knew of his claims at the time he filed his original appeal, and because he provided the state court with only a conclusory explanation for the delay (an inadequate prison law library), Respondent contends the petition was untimely. (Id.) Petitioner replies that his state habeas petition was filed in the state supreme court within the 60-day period which Chavis found to be presumptively valid. (Opp. Mem. at 4-5.)
The Court in Chavis did in fact suggest that a habeas petition filed in the California Supreme Court within 60 days of the denial by the lower appellate court is presumptively timely.Chavis, 126 S.Ct. at 846. The Court in Chavis dealt with a habeas petition filed in the state supreme court after the direct appeal was final, as here, and its holding involved the "timeliness," i.e., the "reasonableness" of the delay between rounds of habeas filings. Respondent incorrectly contends that the timeliness in presenting a habeas petition in a higher state court is to be measured not from when the lower court issued its order denying the claims. but from when the petitioner knew or should have known of the facts supporting the claims. Respondent cites Harris and Swain as setting forth the standards for determining the timeliness of the filing of a petitioner's first state petition for habeas corpus, but Respondent does not identify the standards for determining the reasonableness of any interstitial delays between courts during a full round of post-conviction relief. The Court in Chavis in fact stated that California has not defined reasonableness in regard to the type of delay at issue here, and analogized the California system with other states which provide 30 or 60-day time limits between filings. Chavis, 126 S.Ct. at 849-50. Even assuming California law regarding when a first habeas petition is timely filed is relevant to the determination whether a delay between rounds is reasonable, the Court in Chavis stated that an interstitial delay of less than 60 days provides that a petition is presumptively timely, and Respondent has failed to overcome that presumption.
The Court finds that Petitioner is entitled to statutory tolling for the entire round of habeas filings in the state court. However, as set forth above, his federal Petition was still filed 66 days past the expiration of the one-year statute of limitations. In order for the Petition to be timely, Petitioner must carry his burden of demonstrating that he is entitled to equitable tolling.
C. Equitable Tolling
Respondent contends Petitioner is not entitled to equitable tolling of the statute of limitations because nothing in the record indicates that circumstances beyond Petitioner's control made it impossible for him to timely file his Petition. (MTD Mem. at 8.) Petitioner contends he is entitled to equitable tolling of the statute of limitations because he can show extraordinary circumstances with respect to all time lapses. (Opp. Mem. at 6.) He contends the law library at the California State Prison at Lancaster, where he was housed when pursuing his state habeas petitions, was "inadequately stocked in violation of the Ninth Circuit's decision in Gilmore v. People of the State of California, 220 F.3d 987 (9th Cir. 2000)." (Id. at 6-7.) He contends the law library lacked "materials needed for the prisoner to understand such things as are addressed here," and that this disability continued even after his transfer to the California Substance Treatment Facility at Corcoran, California, where he is presently housed, because the law library there "is in terrible shape." (Id. at 7.) Petitioner contends that under Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc), the lack of materials in the prison law libraries entitles him to equitable tolling. (Id. at 8.) Petitioner has attached to his Opposition the unsigned declaration of a prisoner confined at Corcoran, which was apparently filed in an unrelated case in the state supreme court on December 30, 2005, which lists legal materials missing from the Corcoran law library. (Attachment to Opp. Mem. at 1-3.)
AEDPA's one-year statute of limitations is subject to equitable tolling. Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998). However, the Ninth Circuit in Beeler noted that "[e]quitable tolling will not be available in most cases, as extensions of time will only be granted if 'extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Id. (quoting Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996); Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002). The burden is on Petitioner to show that the "extraordinary circumstances" he has identified were the proximate cause of his untimeliness, rather than merely a lack of diligence on his part. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003); Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003). Equitable tolling "is unavailable in most cases." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). "[T]he threshold necessary to trigger equitable tolling (under AEDPA) is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002).
As set forth above, the statute of limitations was statutorily tolled until September 23, 2004. Because this was the date when Petitioner's claims were first addressed by the state supreme court, and was therefore the first time the federal exhaustion requirement was satisfied as to any of his claims, it is the date which Petitioner could have first presented his claims in a federal habeas petition. At that time Petitioner had 354 days left on the statute of limitations. Therefore, the relevant time to determine whether Petitioner was unable to file his federal petition due to circumstances beyond his control is from September 23, 2004, until he filed his Petition on November 17, 2005, a period of 420 days.
Petitioner submits an unsigned declaration of Troy Anthony Rhodes dated November 30, 2005, which appears to be a document filed in a habeas action brought by Mr. Rhodes in the California Supreme Court. (Attachment to Opp. Mem.) The declaration states that the law library at Corcoran State Prison "is suffering from extreme neglect due to prison staff failing to adhere to the mandate of the Ninth Circuit in Gilmore v. People of the State of California, 220 F.3d 987 (9th Cir. 2000)." (Id. at 1.) The declaration goes on to state that the declarant has served as a volunteer law library clerk off and on for the previous year, and sets forth a list of legal materials that in the declarant's opinion should be, and are needed to be, a part of the law library, but which are missing. (Id. at 2.) Petitioner contends he is entitled to equitable tolling under the holding ofWhalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc). (Opp. Mem. at 7-8.)
In Whalem/Hunt, a petitioner who was not entitled to statutory tolling because he had allowed over one year to elapse after his conviction became final before he filed his first state petition for post-conviction relief, argued that he had no knowledge of the existence of the one-year statute of limitations set forth in the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, which had become effective on the same day the California Supreme Court denied his petition for review on direct appeal, and that the prison law library had no materials describing AEDPA, in particular the provision of the law regarding the one-year statute of limitations set forth in 28 U.S.C. § 2244(d).Whalem/Hunt, 233 F.3d at 1147-48. The Court construed the petitioner's argument as contending that the lack of materials describing AEDPA in the prison law library caused him to be unaware of the existence of the statute of limitations and he was therefore entitled to equitable tolling, or that the lack of materials describing AEDPA in the law library was an "impediment to filing an application created by State action in violation of the Constitution or laws of the United States" within the meaning of section 2244(d)(1)(B). Id. The Court found that such an inquiry is highly fact dependent and remanded the case to the district court for development of the facts. Id.
Here, unlike Whalem/Hunt, there is no need for further development of the record or expansion of the declaration submitted by Petitioner. Petitioner does not state that he was unaware of the statute of limitations or other provisions of AEDPA, or that such a lack of knowledge was the proximate cause of his failure to timely file his federal petition. Rather, he contends merely that the law library is constitutionally deficient under Gilmore v. People of the State of California, 220 F.3d 987 (9th Cir. 2000). (See Opp. Mem. at 7-8; Attachment to Opp. Mem. at 2.) The Court in Gilmore first reviewed the history of litigation regarding the adequacy of law libraries in the California prison system. The Court found that the system had presumably been operating in compliance with a court order issued in 1972, which provided that prison officials were allowed to select their own means of ensuring inmates' access to the courts, when, in 1997, prison officials announced a decision to scale back on the types of legal materials available to prisoners in light of the Supreme Court's decision in Lewis v. Casey, 518 U.S. 343 (1996), and thereafter successfully moved in the district court to terminate the 1972 order. See Gilmore, 220 F.3d at 992-94. The Ninth Circuit upheld the constitutionality of the provisions in the Prison Litigation Reform Act which the district court had relied on to terminate the 1972 order, but found that the district court had improperly allocated the burden of proof regarding application of those termination provisions, and remanded for a determination as to whether the proposed changes in the prison law libraries would have a concrete effect on the inmates' access to the courts under Casey. Id. at 1000-09.
Petitioner's contention that the prison law libraries are not in compliance with Gilmore, even if true, is insufficient to support equitable tolling. The declaration attached to Petitioner's Opposition indicates that the law library at Corcoran contained several hundred volumes of the Federal Reporter 3d series and the Federal Supplement 2nd series, containing numerous cases describing and interpreting AEDPA, including advance sheets up to March and April of 2005. (See Attachment to Opp. Mem. at 2.) In fact, in his federal Petition, Petitioner cites to Wixom v. Washington, 264 F.3d 894 (9th Cir. 2001) and to 28 U.S.C. § 2244(d)(1)(A), and argues that his claims are timely. (Attachment to Pet. at 2.) The Wixom case identified and discussed AEDPA's statute of limitations as set forth in 2244(d), Wixom, 264 F.3d at 895-98, and is included the volumes, according to the declaration, contained in the prison law library. (Attachment to Opp. Mem. at 2.) Thus, unlike the petitioner in Whalem/Hunt, Petitioner here does not contend he was unaware of the statute of limitations, and the record does not need to be expanded in order to determine whether a lack of materials in the law library caused Petitioner to be unaware of the statute of limitations. Unlike Whalem/Hunt, which dealt with a petitioner whose conviction became final three months after AEDPA was enacted, and where the statute of limitations had expired before the petitioner began seeking state post-conviction review due to his ignorance of the existence of the newly-enacted statute of limitations, AEDPA had been the law for over six years at the time the statute of limitations began to run on Petitioner's federal claims, and Petitioner had 354 days left on the statute of limitations after the conclusion of his state post-conviction collateral review.
Petitioner has not supported his contention that the inadequacy of the prison law library was either an "extraordinary circumstance" which prevented him from filing his federal habeas petition in a timely manner, or was a proximate cause of his untimeliness. Rather, it appears clear that the cause of Petitioner's untimeliness was exactly the opposite, that it was caused by his lack of diligence in waiting over one year after the conclusion of the state post-conviction collateral review process before filing his federal Petition, and that this delay was due to an incorrect calculation of the statute of limitations, which was in turn apparently caused by an incorrect interpretation of Wixom and of Rule 13.1 of the Rules of the Supreme Court of the United States as providing that the statute of limitations did not begin to run until expiration of the 90 days to submit a writ of certiorari to the United States Supreme Court for review of the intermediate state appellate court opinion. As such, Petitioner has not carried his burden of demonstrating that he is entitled to equitable tolling of the statute of limitations, and there is no need to expand the record in this regard. Spitsyn, 345 F.3d at 799; Stillman, 319 F.3d at 1203; Miranda, 292 F.3d at 1066; Miles, 187 F.3d at 1107. This conclusion is further supported by the fact that Petitioner had no difficulty in timely filing his habeas petitions in the state appellate and supreme courts, wherein he presented the identical claim relying on the identical provisions of state and federal law as he has presented in the instant federal Petition. (Compare Attachment to Pet. at 2-3 with Lodgment No. 7,Williams v. Yarborough, No S120645, Memorandum of Points and Authorities attached to Petition at 4-5 (Cal. filed Nov. 14, 2003) and Lodgment No. 5, Williams v. Yarborough, No. D042724, Memorandum of Points and Authorities attached to Petition at 4-5 (Cal.Ct.App. filed Aug. 14, 2003).) For these same reasons, to the extent Petitioner contends an inadequate law library amounted to a state-created impediment to his filing within the meaning of 28 U.S.C. § 2244(d)(1)(B), he has failed to establish that an allegedly inadequate law library was an impediment to filing his federal Petition, particularly in light of fact that he was able to file his other state habeas petitions in a timely manner.
IV. CONCLUSION AND RECOMMENDATION
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) granting Respondent's Motion to Dismiss; and, (3) entering judgment dismissing the Petition for Writ of Habeas Corpus with prejudice for failure to file within the one-year statute of limitations.
IT IS ORDERED that no later than April 17, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than May 1, 2006. The parties are advised that failure to file objections with the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Y1st, 951 F.2d 1153, 1156 (9th Cir. 1991).