1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ALAN E. BERTRAN, Case No. CV 19-10850-JAK (PD)
12 Petitioner, ORDER ACCEPTING 13 v. FINDINGS, CONCLUSIONS, 14 UNITED STATES DISTRICT AND RECOMMENDATION OF COURT, UNITED STATES 15 MAGISTRATE JUDGE Respondent. 16
17 18 On March 12, 2021, the United States Magistrate Judge issued a Report 19 and Recommendation (“Report”), which recommended that the Petition for 20 Writ of Habeas Corpus be denied and that this action be dismissed with 21 prejudice. [Dkt. No. 26.] On April 5, 2021, Petitioner filed Objections to the 22 Report. [Dkt. No. 28.] 23 Most of the arguments that Petitioner advances in his Objections are 24 sufficiently addressed in the Report. However, others warrant further 25 discussion. Each of those arguments is addressed in this Order. 26 A. Petitioner’s Lack of Legal Sophistication 27 Petitioner challenges the conclusions of the Magistrate Judge about 28 1 Petitioner’s lack of diligence in learning of the denial of his state court 2 petition for review. He argues that this determination overlooks that 3 Petitioner is a layman who had no reason not to rely on his appointed counsel 4 to provide him with timely notice that the petition for review had been denied. 5 [See Dkt. No. 28 at 6-8]. 1 However, Petitioner did not have to have legal 6 training to know that he could ask his appointed counsel about the status of 7 the petition for review during the nearly two-year period after which it had 8 been denied. Further, the Ninth Circuit has held that “a pro se petitioner’s 9 lack of legal sophistication is not, by itself, an extraordinary circumstance 10 warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th 11 Cir. 2006); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 12 2009) (“[W]e have held that a pro se petitioner’s confusion or ignorance of the 13 law is not, itself, a circumstance warranting equitable tolling[.]”) (citation 14 omitted). 15 Also unpersuasive is Petitioner’s reliance on Brandon v. United States, 89 F. Supp. 2d 731 (E.D. Va. 2000), to support the claim that equitable tolling 16 is warranted based on his ignorance of the denial of his petition for review. 17 Brandon held that a petitioner who was represented by counsel at all relevant 18 times was entitled to equitable tolling during the 16-month period that he, 19 through no fault of his own, was unaware that his petition for writ of 20 certiorari had been denied. 89 F. Supp. at 734. However, in that case, neither 21 petitioner nor his counsel had any knowledge that the petition had been 22 denied. Therefore, the petitioner could not have obtained that information 23 from his counsel had he asked. See id. Here, Petitioner’s counsel knew that 24 the petition for review had been denied, and that counsel sent Petitioner a 25
26 1 Petitioner asserted this argument for the first time in his Objections. The Court exercises its discretion to consider the argument. See Brown v. Roe, 279 F.3d 742, 27 744-45 (9th Cir. 2002) (district court has discretion, but is not required, to consider 28 claims presented in party’s objections to magistrate judge’s report and 1 letter providing notice of the denial within a week after it occurred. Although 2 Petitioner contends that he never received that letter, he could have learned 3 the outcome of his petition for review during the following, two-year period 4 simply by contacting his counsel and inquiring about the status of the 5 petition. He did not do so. 6 Further, as explained in the Report, Petitioner had good reason to 7 inquire as to the status of his petition for review because California provides a 8 firm, 90-day deadline for the California Supreme Court to rule on a petition 9 for review. [Dkt. No. 26 at 6-8.] Petitioner, did not seek any information 10 about the status of his petition for review for more than 18 months after that 11 deadline. Under these circumstances, the Magistrate Judge correctly 12 concluded that Petitioner’s lack of knowledge regarding the denial of his 13 petition for review does not warrant equitable tolling. 14 B. Prison Attacks on Petitioner 15 Petitioner also contends that the limitations period should be equitably tolled because of the “tumultuous living conditions” during his incarceration. 16 [Dkt. No. 28 at 19-20.] Specifically, he contends that, between November 17 2015 and May 2018, he sustained serious injuries due to attacks by other 18 inmates and, as a result, spent periods of time in protective administrative 19 segregation. [Id. at 19-20].2 20 These allegations do not warrant equitable tolling for several reasons. 21 First, three of the attacks on Petitioner occurred either well before the 22 limitations period had commenced or long after it had expired. Although 23 Petitioner was placed in protective administrative segregation in November 24 2015 and in April 2016 [see Dkt. No. 28 at 39-40], the latter of those events 25 preceded the commencement of the limitations period by approximately eight 26
27 2 Petitioner asserted this argument for the first time in his Objections. The Court 28 exercises its discretion to consider the argument. See Brown, 279 F.3d at 744-45. 1 months. [See Dkt. No. 26 at 4 (limitations period commenced on December 13, 2 2016).] Petitioner also contends that, in connection with this incident, he was 3 released from administrative segregation by May of 2016. That was 4 approximately seven months before the limitations period had commenced. 5 [Id. at 19.] In May 2018, he states he was again attacked by a fellow inmate 6 and placed in protective administrative segregation [see id. at 42], but that 7 attack occurred approximately six months after the limitations period had 8 expired. Thus, none of these attacks or Petitioner’s resulting time in 9 protective administrative segregation warrants equitable tolling. 10 Second, that Petitioner was attacked and placed into protective 11 administrative segregation in February 2017,3 which is while the limitations 12 period was running, does not warrant equitable tolling. Putting aside that 13 Petitioner does not state how long he was in administrative segregation due to 14 this incident, he alleges no facts to show that he was unable to obtain legal 15 materials during that time or, more importantly, that he ever requested any such materials. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) 16 (petitioner not entitled to equitable tolling simply because he remained in 17 administrative segregation and had limited access to law library and copy 18 machine). Equitable tolling is available for time spent in administrative 19 segregation only when the time period is substantial and, during that time, 20 the prisoner is denied access to materials he needs to file a petition, despite 21 diligent efforts to obtain those materials. See Espinoza-Matthews v. 22 California, 432 F.3d 1021, 1028 (9th Cir. 2005) (equitable tolling warranted 23 where prisoner was repeatedly denied access to requested legal materials 24 while confined in protective administrative segregation for eleven months). 25 There is also no reason to conclude that Petitioner would have 26 requested any such materials during the unspecified time he spent in 27 28 1 protective administrative segregation in 2017.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ALAN E. BERTRAN, Case No. CV 19-10850-JAK (PD)
12 Petitioner, ORDER ACCEPTING 13 v. FINDINGS, CONCLUSIONS, 14 UNITED STATES DISTRICT AND RECOMMENDATION OF COURT, UNITED STATES 15 MAGISTRATE JUDGE Respondent. 16
17 18 On March 12, 2021, the United States Magistrate Judge issued a Report 19 and Recommendation (“Report”), which recommended that the Petition for 20 Writ of Habeas Corpus be denied and that this action be dismissed with 21 prejudice. [Dkt. No. 26.] On April 5, 2021, Petitioner filed Objections to the 22 Report. [Dkt. No. 28.] 23 Most of the arguments that Petitioner advances in his Objections are 24 sufficiently addressed in the Report. However, others warrant further 25 discussion. Each of those arguments is addressed in this Order. 26 A. Petitioner’s Lack of Legal Sophistication 27 Petitioner challenges the conclusions of the Magistrate Judge about 28 1 Petitioner’s lack of diligence in learning of the denial of his state court 2 petition for review. He argues that this determination overlooks that 3 Petitioner is a layman who had no reason not to rely on his appointed counsel 4 to provide him with timely notice that the petition for review had been denied. 5 [See Dkt. No. 28 at 6-8]. 1 However, Petitioner did not have to have legal 6 training to know that he could ask his appointed counsel about the status of 7 the petition for review during the nearly two-year period after which it had 8 been denied. Further, the Ninth Circuit has held that “a pro se petitioner’s 9 lack of legal sophistication is not, by itself, an extraordinary circumstance 10 warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th 11 Cir. 2006); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 12 2009) (“[W]e have held that a pro se petitioner’s confusion or ignorance of the 13 law is not, itself, a circumstance warranting equitable tolling[.]”) (citation 14 omitted). 15 Also unpersuasive is Petitioner’s reliance on Brandon v. United States, 89 F. Supp. 2d 731 (E.D. Va. 2000), to support the claim that equitable tolling 16 is warranted based on his ignorance of the denial of his petition for review. 17 Brandon held that a petitioner who was represented by counsel at all relevant 18 times was entitled to equitable tolling during the 16-month period that he, 19 through no fault of his own, was unaware that his petition for writ of 20 certiorari had been denied. 89 F. Supp. at 734. However, in that case, neither 21 petitioner nor his counsel had any knowledge that the petition had been 22 denied. Therefore, the petitioner could not have obtained that information 23 from his counsel had he asked. See id. Here, Petitioner’s counsel knew that 24 the petition for review had been denied, and that counsel sent Petitioner a 25
26 1 Petitioner asserted this argument for the first time in his Objections. The Court exercises its discretion to consider the argument. See Brown v. Roe, 279 F.3d 742, 27 744-45 (9th Cir. 2002) (district court has discretion, but is not required, to consider 28 claims presented in party’s objections to magistrate judge’s report and 1 letter providing notice of the denial within a week after it occurred. Although 2 Petitioner contends that he never received that letter, he could have learned 3 the outcome of his petition for review during the following, two-year period 4 simply by contacting his counsel and inquiring about the status of the 5 petition. He did not do so. 6 Further, as explained in the Report, Petitioner had good reason to 7 inquire as to the status of his petition for review because California provides a 8 firm, 90-day deadline for the California Supreme Court to rule on a petition 9 for review. [Dkt. No. 26 at 6-8.] Petitioner, did not seek any information 10 about the status of his petition for review for more than 18 months after that 11 deadline. Under these circumstances, the Magistrate Judge correctly 12 concluded that Petitioner’s lack of knowledge regarding the denial of his 13 petition for review does not warrant equitable tolling. 14 B. Prison Attacks on Petitioner 15 Petitioner also contends that the limitations period should be equitably tolled because of the “tumultuous living conditions” during his incarceration. 16 [Dkt. No. 28 at 19-20.] Specifically, he contends that, between November 17 2015 and May 2018, he sustained serious injuries due to attacks by other 18 inmates and, as a result, spent periods of time in protective administrative 19 segregation. [Id. at 19-20].2 20 These allegations do not warrant equitable tolling for several reasons. 21 First, three of the attacks on Petitioner occurred either well before the 22 limitations period had commenced or long after it had expired. Although 23 Petitioner was placed in protective administrative segregation in November 24 2015 and in April 2016 [see Dkt. No. 28 at 39-40], the latter of those events 25 preceded the commencement of the limitations period by approximately eight 26
27 2 Petitioner asserted this argument for the first time in his Objections. The Court 28 exercises its discretion to consider the argument. See Brown, 279 F.3d at 744-45. 1 months. [See Dkt. No. 26 at 4 (limitations period commenced on December 13, 2 2016).] Petitioner also contends that, in connection with this incident, he was 3 released from administrative segregation by May of 2016. That was 4 approximately seven months before the limitations period had commenced. 5 [Id. at 19.] In May 2018, he states he was again attacked by a fellow inmate 6 and placed in protective administrative segregation [see id. at 42], but that 7 attack occurred approximately six months after the limitations period had 8 expired. Thus, none of these attacks or Petitioner’s resulting time in 9 protective administrative segregation warrants equitable tolling. 10 Second, that Petitioner was attacked and placed into protective 11 administrative segregation in February 2017,3 which is while the limitations 12 period was running, does not warrant equitable tolling. Putting aside that 13 Petitioner does not state how long he was in administrative segregation due to 14 this incident, he alleges no facts to show that he was unable to obtain legal 15 materials during that time or, more importantly, that he ever requested any such materials. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) 16 (petitioner not entitled to equitable tolling simply because he remained in 17 administrative segregation and had limited access to law library and copy 18 machine). Equitable tolling is available for time spent in administrative 19 segregation only when the time period is substantial and, during that time, 20 the prisoner is denied access to materials he needs to file a petition, despite 21 diligent efforts to obtain those materials. See Espinoza-Matthews v. 22 California, 432 F.3d 1021, 1028 (9th Cir. 2005) (equitable tolling warranted 23 where prisoner was repeatedly denied access to requested legal materials 24 while confined in protective administrative segregation for eleven months). 25 There is also no reason to conclude that Petitioner would have 26 requested any such materials during the unspecified time he spent in 27 28 1 protective administrative segregation in 2017. On the contrary, his 2 overarching argument for equitable tolling is that he took no action in filing a 3 federal habeas petition until August 2018, when he learned that his state 4 court petition for review had been denied almost two years earlier. Thus, the 5 time that Petitioner spent in protective administrative segregation in 2017 6 does not warrant equitable tolling because, as Petitioner concedes, he would 7 not have taken any action towards filing a federal habeas petition until 8 August 2018.4 9 C. Petitioner’s Efforts to Obtain the Trial Court Record 10 Petitioner maintains that the Magistrate Judge erred in concluding that 11 Petitioner failed to exercise reasonable diligence in attempting to obtain a 12 preliminary hearing transcript from the criminal case against him that was 13 dismissed due to unwarranted delay. [See Dkt. No. 28 at 16-18.] Although 14 this issue was addressed in the Report [see Dkt. No. 26 at 11-16], the 15 attachments to Petitioner’s Objections actually buttress the reasonableness of the conclusion in the Report that Petitioner failed to exercise reasonable 16 diligence. As noted in the Report, there is no evidence to support Petitioner’s 17 assertion that he ever requested the preliminary hearing transcript in 2015. 18 [See id. at 13-14.] Petitioner concedes that he has no verifiable proof that 19 such a request was ever made. [See Dkt. No. 28 at 17]. Moreover, a January 20 2020 letter from Petitioner’s counsel confirms Petitioner’s lack of diligence. In 21 the letter, counsel states that Petitioner requested his trial transcript from 22 her in 2015 but did not contact her again until sometime in 2020. [See id. at 23 62.] It is also significant that the letter from trial counsel shows that, in fact, 24 she sent Petitioner a copy of his “entire file” in 2015 [see id.], although 25 26 4 Although the Report addressed the issue, this fact also applies to Petitioner’s 27 arguments regarding the prison’s infrastructure, the damage to the prison law 28 library, and his alleged lack of access to the law library during the period in which 1 | Petitioner maintains that -- as with appellate counsel’s letter regarding the 2 || denial of the petition for review -- he never received the file. Even assuming 3 || that Petitioner did not receive the file, he has not shown that he was diligent 4 || in his efforts to obtain any missing portion of it, as he waited “five long years” 5 || after his initial request to contact his trial counsel again regarding the file. 6 || [d.].5 7 ACCORDINGLY, IT IS ORDERED: 8 1. The Report and Recommendation is accepted. 9 2. Respondent’s Motion to Dismiss the Petition for Writ of Habeas 10 Corpus is granted. 11 3. Judgment shall be entered consistent with this Order. 12 4. The clerk shall serve this Order and the Judgment on counsel or 13 || parties of record. 14 15 || DATED: May 4, 2021 C) Wn VW 16 7 JOHN A. KRONSTADT UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 | 5 During the criminal case that was ultimately dismissed due to unwarranted delay, 25 || Petitioner was represented by appointed counsel. [See Dkt. No. 28 at 60.] After he was later charged under a different case number, Petitioner retained counsel, who 26 || represented Petitioner throughout his trial. [Id. at 60-63.] Based on a letter 7 attached to his Objections, Petitioner apparently never contacted appointed counsel to obtain the missing preliminary hearing transcript until January 2020. [/d. at 60.] 28 || This fact further shows that Petitioner was not diligent in attempting to obtain the transcript. L£