Opinion
6:19-cv-00898-YY
03-24-2021
VANCE WALLACE WORDEN, Petitioner, v. BRANDON KELLY, Respondent.
Anthony D. Bornstein Assistant Federal Public Defender, Attorney for Petitioner. Ellen F. Rosenblum, Attorney General Kristen E. Boyd, Assistant Attorney General Department of Justice, Attorneys for Respondent.
Anthony D. Bornstein Assistant Federal Public Defender, Attorney for Petitioner.
Ellen F. Rosenblum, Attorney General Kristen E. Boyd, Assistant Attorney General Department of Justice, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Youlee Yim You, United States Magistrate Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his Clackamas County Sexual Abuse convictions from 2013. Because Petitioner failed to timely file this action, the Petition for Writ of Habeas Corpus (#2) should be dismissed.
BACKGROUND
In 2013, Petitioner pleaded guilty to three counts of Sexual Abuse in the First Degree for crimes he committed against his granddaughter. Respondent's Exhibit 103. As a result, the Clackamas County Circuit Court sentenced him to 180 months in prison, and entered its Judgment on April 10, 2013. Respondent's Exhibit 101. When Petitioner did not directly appeal the Judgment within 30 days as allowed by ORS 19.255(1), the Antiterrorism and Effective Death Penalty Act's (“AEDPA's”)one-year statute of limitations for filing this habeas corpus case began to run. See 28 U.S.C. 2244(d)(1)(A) (statute of limitations generally begins to run after the conclusion of a litigant's direct appeal proceedings).
The AEDPA's statute of limitations ran for 256 days until January 21, 2014, when Petitioner filed for post-conviction relief (“PCR”) in Marion County thereby tolling the AEDPA's statute of limitations. See 28 U.S.C. § 2244(d)(2) (properly filed PCR actions toll the AEDPA's statute of limitations). The PCR court proceeded to deny relief on Petitioner's claims, the Oregon Court of Appeals affirmed that decision in a written opinion, and the Oregon Supreme Court denied review. Worden v. Premo, 290 Or.App. 710, 416 P.3d 332, rev. denied, 363 Or. 817, 431 P.3d 423 (2018). The PCR Appellate Judgment issued on January 3, 2019, at which point the AEDPA's one-year statute of limitations once again continued to run. At that point, Petitioner had 109 days in which to file for federal habeas corpus relief.
On June 6, 2019, 154 days after the PCR Appellate Judgment issued, Petitioner signed and mailed his Petition for Writ of Habeas Corpus. Respondent asks the Court to dismiss the Petition because Petitioner allowed 410 untolled days to accrue before filing it, placing it outside the applicable one-year statute of limitations by 45 days. Petitioner does not disagree with this calculation, but argues that external impediments beyond his control warrant equitable tolling.
Error! Main Document Only. Under the "prison mailbox rule," a prisoner's documents are deemed filed at the moment the prisoner delivers them to prison authorities for forwarding to the clerk of the court. Saffold v. Newland, 224 F.3d 1087, 1091 (9th Cir. 2000) (applying prison mailbox rule to state court petitions as well as federal petitions).
DISCUSSION
Equitable tolling is potentially available to toll the AEDPA's one-year statute of limitations. Holland v. Florida, 560 U.S. 631, 645 (2010). A litigant seeking to invoke equitable tolling must establish: (1) that 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). 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). Petitioner bears the burden of showing that this "extraordinary exclusion" should apply to him. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
Petitioner first asserts that he is entitled to equitable tolling because he faced limited access to the law library at his prison. He recounts that the prison library required him to schedule his visits in advance, limited his time to two hours per visit, and required him to share the available computers with other prisoners. He also claims that he needed to learn to utilize the Lexis legal research program, which was difficult as he is a high school graduate with limited experience with computers, all while he continued to keep a job within the institution as the State of Oregon requires of all prisoners.
The conditions Petitioner describes are all ordinary restrictions upon the liberty of incarcerated individuals that did not prevent him from timely filing his Petition for Writ of Habeas Corpus. Although he claims that his educational and work histories did not set him up well to conduct legal research, a general lack of legal sophistication is not a sufficient basis upon which to invoke equitable tolling. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).
Petitioner also argues that equitable tolling is appropriate because his data storage device failed, depriving him of his legal research when he felt “nearly ready to file [his] petition for post-conviction relief.” Petitioner's Exhibit D, p. 4. According to Petitioner, when he retrieved his storage device from the law library coordinator and attempted to access it, the device lacked 14 pages of notes and information he had previously prepared for purposes of filing his PCR petition. While a prison's purposeful deprivation of a prisoner's legal materials might justify equitable tolling, the accidental data loss described here is not an extraordinary event giving rise to equitable tolling. Compare Valverde v. Stinson, 224 F.3d 129 (2d Cir. 2000) (prison officials confiscated legal materials and never returned them, justifying equitable tolling), with Akins v. United States, 204 F.3d 1086 (11th Cir. 2000) (periods when a prison misplaces a prisoner's legal materials do not justify equitable tolling).
Petitioner also claims that his daughter impeded his efforts to timely file this case because she filed a civil lawsuit against him on behalf of her daughter, requiring Petitioner to expend time defending that action. The existence of the civil suit was neither an extraordinary event, nor did it render him unable to timely file this case. Indeed, the civil suit concluded approximately five years prior to the completion of Petitioner's PCR action. Petitioner's Exhibit C. Given that Petitioner still had 109 days after the issuance of the PCR Appellate Judgment in which to file this habeas corpus challenge, it is difficult to conclude that the long-terminated civil suit materially impacted his ability to comply with the AEDPA's statute of limitations.
Petitioner next asks the Court to excuse his untimely filing because the State has not demonstrated how his 45-day delay in filing actually resulted in any prejudice. However, the State need not demonstrate prejudice in the face of a statute of limitations violation. See, e.g., U.S. v. Locke, 471 U.S. 84, 101 (1995) (filing deadlines are to be strictly enforced); Earle v. Sherman, No. 2:19-cv-2629-KJM DB P, 2021 WL 147129, at *4 (E.D. Cal. Jan. 15, 2021) (“Under the statute of limitations set out in 28 U.S.C. § 2244(d)(1), respondent need not show prejudice in support of a motion to dismiss for untimeliness.”).
Finally, Petitioner asks the Court to conduct an evidentiary hearing to more fully explore the impediments that prevented him from timely filing this case. However, nothing he has alleged, if true, would justify equitable tolling. Accordingly, an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474-75 (2007) (where the record in the case precludes habeas relief, a district court is not required to hold an evidentiary hearing).
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#2) should be dismissed as untimely, and a judgment should be entered dismissing this case with prejudice. The Court should also decline to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 17 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.