Daniel Wayne Grogan v. California Department of Corrections

• Court: District Court, C.D. California
• Decided: March 25, 2022
• Docket: 2:21-cv-08233
• Status: Unknown

Opinion

Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 1 of 12 Page ID #:412

8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 DANIEL WAYNE GROGAN, Case No. 2:21-cv-08233-JAK (GJS) 12 Petitioner,

13 v. FINAL REPORT AND RECOMMENDATION OF 14 CALIFORNIA DEPARTMENT OF UNITED STATES MAGISTRATE CORRECTIONS, JUDGE 15 Respondent. 16

17 This Final Report and Recommendation is submitted to the United States 18 District Judge John A. Kronstadt, pursuant to 28 U.S.C. § 636 and General Order 19 No. 05-07 of the United States District Court for the Central District of California. 20 21 INTRODUCTION 22 On October 14, 2021, the Clerk’s Office received and filed a 28 U.S.C. § 2254 23 habeas petition submitted by Petitioner, a state prisoner [Dkt. 1“Petition”]. The 24 Petition stems from his July 23, 2018 conviction in Los Angeles County Superior 25 Court Case No. MA070720 and related sentence (the “State Conviction”). [Petition 26 at 2.]1 27

28 1 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has reviewed the dockets available electronically for the Los Angeles County Superior Court, the California Court of Appeal, and the California Supreme Court. Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 2 of 12 Page ID #:413

1 On December 9, 2021, Respondent filed a motion to dismiss the Petition on 2 the grounds that the Petition failed to name a proper Respondent, is untimely, and 3 does not sufficiently set forth the grounds for relief. [Dkt. 7, “Motion.”] With the 4 Motion, Respondent lodged the relevant portions of the state docket. [Dkt. 8, 5 “Lodg.”] On the same day, the Court issued an Order directing briefing on the 6 Motion and advising Petitioner that, if he contends he is entitled to equitable tolling, 7 he must include with his Opposition a sworn declaration setting forth a detailed 8 description of the nature of any alleged extraordinary circumstances and their effect 9 on his ability to seek timely federal habeas relief. [Dkt. 9, the “December 9 Order”.] 10 Petitioner’s Opposition to the Motion was due by January 13, 2022. As of 11 that date, the Court had not received any such Opposition from Petitioner, nor had it 12 received any request by him for an extension of time. 13 The Motion, thus, was unopposed. On February 7, 2022, the Court issued a 14 Report and Recommendation, in which it concluded that the Petition is untimely and 15 recommended that the Motion be granted and this case be dismissed. [Dkt. 11, 16 “Report.”] On March 4, 2022, Petitioner filed an Objection to the Report. [Dkt. 12, 17 “Objection.”] In his two-page Objection, Petitioner argues that his failure to timely 18 seek federal habeas relief should be excused under the equitable tolling doctrine and 19 he attaches numerous exhibits that he believes support his argument. 20 In his Objection, Petitioner does not explain why he failed to file an 21 Opposition to the Motion and, instead, waited to respond to the Motion until after 22 the Court had concluded its analysis and issued the Report. A district court has 23 discretion, but is not required, to consider evidence or arguments presented for the 24 first time in objections to a report and recommendation. See Brown v. Roe, 279 F.3d 25 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 26 2000). While it is inappropriate for Petitioner to raise his opposition arguments for 27 the first time in an objection to a report and recommendation, the Court nonetheless 28 will exercise its discretion in favor of considering the Objection. 2 Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 3 of 12 Page ID #:414

1 The Court now issues this Final Report and Recommendation to address 2 Petitioner’s Objection assertions. The Court again finds that the record clearly 3 shows that the Petition is untimely and that dismissal is warranted on that basis.2 4 The Court, therefore, again recommends that the Motion be granted. 5 6 PRIOR PROCEEDINGS 7 On July 23, 2018, in the State Conviction action Petitioner pleaded no contest 8 to a charge of armed robbery and admitted the truth of firearm use, prior conviction, 9 and prior prison term allegations. The trial court sentenced Petitioner to a total 10 prison term of 25 years to life. [Lodg. No. 1 at ECF #183-#184.] 11 A review of the electronic dockets available for the California Court of 12 Appeal and the California Supreme Court confirms that Petitioner did not appeal his 13 State Conviction and sentence. Instead, four months after his conviction and 14 sentencing, Petitioner mailed a habeas petition to the trial court on November 24, 15 2018.3 [Lodg. No. 2.] After appointing counsel for Petitioner, ordering briefing, and 16 conducting an evidentiary hearing, the trial court denied the petition on July 29, 17 2019. [Lodg. No. 1 at ECF #189-#196.] 18 On September 24, 2019, Petitioner filed a habeas petition in the California 19 Court of Appeal. [Lodg. No. 3.] On October 24, 2019, the California Court of 20 Appeal denied the petition summarily. [Lodg. No. 4.] 21

22 2 The Court declines to address Respondent’s alternative asserted grounds for dismissal. While the Petition does fail to name a proper respondent and does not adequately plead the habeas 23 claims for which relief is sought, both of these failures could be rectified with amendment. Given 24 that this action plainly is untimely, these alternative grounds for dismissal need not be addressed and resolved. 25 3 “Under the ‘mailbox rule,’ a pro se prisoner’s filing of a state habeas petition is deemed 26 filed at the moment the prisoner delivers it to prison authorities for forwarding to the clerk of the 27 court.” Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003); see also Rule 3(d) of the Rules Governing Section 2254 Cases in the United States District Courts. Therefore, giving 28 Petitioner the benefit of the doubt, when the apparent date on which Petitioner mailed any post- conviction petition is available, the Court has used that presumptive date as the “filing” date. 3 Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 4 of 12 Page ID #:415

1 Almost five months passed. On April 15, 2020, the Clerk’s Office formally 2 filed a 28 U.S.C. § 2254 habeas petition it had received from Petitioner in Case No. 3 2:20-cv-03483-JAK (GJS). On May 8, 2020, District Judge Kronstadt dismissed the 4 action without prejudice, for lack of exhaustion, after Petitioner failed to exercise 5 any of the available options that had been provided to him. [Lodg. Nos. 7-8.] 6 Two months later, on July 8, 2020, Petitioner filed a habeas petition in the 7 California Supreme Court. [Lodg. No. 5.] On October 14, 2020, the California 8 Supreme Court denied the petition summarily. [Lodg. No. 6.] 9 Almost one year later, Petitioner filed the instant Petition. While the proof of 10 service page attached to the Petition and the Petition’s signature page are dated 11 September 26, 2021, Petitioner’s cover letter (in which he states that the Petition was 12 mailed on October 7, 2021) and other documents included with the Petition’s 13 mailing are dated October 7, 2021, and the envelope in which all of those documents 14 were transmitted bears an October 12, 2021 postmark. The Court, therefore, will 15 deem the Petition to have been “filed” pursuant to the mailbox rule on October 7, 16 2021. 17 DISCUSSION 18 Prisoners seeking habeas relief under Section 2254 are subject to a one-year 19 time limit on the filing of petitions, which was adopted to “advance the finality of 20 criminal convictions.” Mayle v. Felix, 545 U.S. 644, 662 (2005). The one-year 21 limitations period is set forth in 28 U.S.C. § 2244(d)(1). This limitations period is 22 subject to a statutory tolling provision, which suspends it for the time during which a 23 “properly-filed” application for post-conviction or other collateral review is 24 “pending” in state court. 28 U.S.C. § 2244(d)(2). Additionally, in certain 25 “extraordinary circumstances” beyond a prisoner’s control, equitable tolling may be 26 available to toll the limitations period. See, e.g., Jorss v. Gomez, 311 F.3d 1189, 27 1192 (9th Cir. 2002) (“A petition can also be timely, even if filed after the one-year 28 period has expired, when statutory or equitable tolling applies.”). 4 Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 5 of 12 Page ID #:416

1 A. The Accrual, And Running, Of Petitioner’s Limitations Period. 2 Through its subparts (A) through (D), Section 2244(d)(1) contemplates four 3 possible triggering dates for the accrual and commencement of a state prisoner’s 4 one-year limitations period. The Supreme Court has described these as follows: 5 § 2244(d)(1) provides that a “1-year period of limitation shall apply to an application for a writ of habeas corpus.” 6 (Emphasis added.) The subsection then provides one means of calculating the limitation with regard to the 7 “application” as a whole, § 2244(d)(1)(A) (date of final 8 judgment), but three others that require claim-by-claim consideration, § 2244(d)(1)(B) (governmental 9 interference); § 2244(d)(1)(C) (new right made retroactive); § 2244(d)(1)(D) (new factual predicate). 10 Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6 (2005). 11 Usually, a state prisoner’s limitations period will be governed by Section 12 2244(d)(1)(A), and that is the only provision that can govern here based on the facts 13 of record.4 Petitioner’s judgment became “final,” for purposes of Section 14 2244(d)(1)(A), on the date on which his State Conviction became final. Because 15 Petitioner did not appeal following his July 23, 2018 State Conviction and 16 sentencing, his criminal judgment was final on the date his time for seeking review 17 of his conviction expired, which was 60 days later, i.e., on September 21, 2018. See 18 Roberts v. Marshall, 627 F.3d 768, 771 (9th Cir. 2010); Rule 8.308(a) of the 19 California Rules of Court. Thus, Petitioner’s limitations period commenced running 20 on September 22, 2018, and expired on September 21, 2019, absent tolling. 21 22 23 24 4 As discussed infra, in his Objection, Petitioner raises a circumstance that he claim entitles him to equitable tolling, namely, his March, 2021, through August 2021 incarceration in his 25 institution’s Administrative Segregation Unit. In passing, Petitioner characterizes this circumstance as “governmental interference” and referenced Section 2244(d)(1)(B) without 26 explanation. While this circumstance properly may be considered in an equitable tolling analysis, 27 it cannot serve as a basis for affording Petitioner with a delayed accrual start for his limitations period, given that it occurred approximately 18 months after Petitioner’s limitation period would 28 have expired absent statutory tolling.

5 Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 6 of 12 Page ID #:417

1 B. Statutory Tolling 2 28 U.S.C. § 2244(d)(2) suspends the limitations period not only for the time 3 during which a “properly-filed” application for post-conviction relief is “pending” in 4 state court but also, in appropriate circumstances, “during the intervals between the 5 denial of a petition by one court and the filing of a new petition at the next level, if 6 there is not undue delay.” Biggs v. Terhune, 339 F.3d 1045, 1046 (9th Cir. 2003). 7 Continuous tolling under Section 2244(d)(2) – commonly referred to as interval or 8 gap tolling – is available only if a prisoner acted promptly in seeking relief at the 9 next state court level. See Pace, 544 U.S. at 413-14. 10 As noted earlier, Petitioner filed two state court habeas petitions, then filed a 11 federal habeas petition which was dismissed, and then finally sought habeas relief in 12 the state high court. That process commenced on November 24, 2018, when 13 Petitioner filed his trial court habeas petition, and concluded on October 14, 2020, 14 when the California Supreme Court denied habeas relief. The Court has some 15 question about whether Petitioner properly may receive gap tolling throughout this 16 entire period of time, but notes that Respondent has assumed so in the Motion. For 17 the sake of argument, the Court will make that assumption, as doing so or not 18 ultimately makes no difference to the timeliness decision. 19 As of November 24, 2018, Petitioner’s limitations period has been running for 20 63 days, i.e., from September 22, 2018, through November 23, 2018, the day before 21 Petitioner first sought state habeas relief. If he is deemed to be able to receive 22 Section 2244(d)(2) tolling throughout the entirety of November 24, 2018, through 23 October 14, 2020, then when tolling lifted and Petitioner’s limitations period re- 24 commenced running on October 15, 2020, he had 302 days remaining, or until 25 August 12, 2021, in which to timely seek federal habeas relief. As the Petition was 26 “filed” no earlier than October 7, 2021, it was 56 days too late.5 The Petition, thus, 27

28 5 Even if Petitioner’s September 26, 2021 signature date on the Petition is used, the Petition nonetheless was untimely by 45 days. As set forth above, however, given that his transmittal latter 6 Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 7 of 12 Page ID #:418

1 is untimely absent equitable tolling. 2 3 C. Equitable Tolling Is Not Available. 4 The limitations period for Section 2254 petitions is subject to equitable tolling 5 in appropriate circumstances. Holland v. Florida, 560 U.S. 631, 645-49 (2010). 6 However, application of the equitable tolling doctrine is the exception rather than the 7 norm. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) 8 (characterizing the Ninth Circuit’s “application of the doctrine” as “sparing” and a 9 “rarity”); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (“equitable tolling is 10 unavailable in most cases”). A habeas petitioner may receive equitable tolling only 11 if he “shows ‘(1) that he has been pursuing his rights diligently, and (2) that some 12 extraordinary circumstance stood in his way’ and prevented timely filing.” Holland, 13 560 U.S. at 649 (citation omitted); see also Pace, 544 U.S. at 418 & n.8. Both 14 elements must be met. Id. at 418 (finding that the petitioner was not entitled to 15 equitable tolling, because he had not established the requisite diligence). A 16 petitioner seeking application of the doctrine bears the burden of showing that it 17 should apply to him. Id.; see also Lawrence v. Florida, 549 U.S. 327, 336 (2007) (to 18 receive equitable tolling, the petitioner must prove the above two requirements). 19 In order to demonstrate the first requirement for equitable tolling, diligence, 20 the petitioner must show that “he has been reasonably diligent in pursuing his rights 21 not only while an impediment to filing caused by an extraordinary circumstance 22 existed, but before and after as well, up to the time of filing his claim in federal 23 court.” Smith v. Davis, 953 F.3d 582, 598-99 (9th Cir. 2020) (en banc). 24 The second equitable tolling requirement is a causation requirement. Davis, 25 953 F.3d at 597, 600. A petitioner must establish not only the existence of an 26 extraordinary circumstance but also that it was, in fact, the cause of the untimely 27

28 and other documents sent with the Petition are dated October 7, 2021, that date is a more appropriate “filed” date under the mailbox rule. 7 Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 8 of 12 Page ID #:419

1 filing of the federal habeas petition. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th 2 Cir. 2003); see also Bryant v. Arizona Att. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007) 3 (a petitioner must show that the claimed extraordinary circumstances were the cause 4 of his untimeliness); Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (the 5 extraordinary circumstance claimed must be the cause of the petition’s 6 untimeliness). “[I]t is only when an extraordinary circumstance prevented a 7 petitioner acting with reasonable diligence from making a timely filing that equitable 8 tolling may be the proper remedy.” Davis, 953 F.3d at 600. “A petitioner must 9 show that his untimeliness was caused by an external impediment and not by his 10 own lack of diligence.” Bryant, 499 F.3d at 1061. 11 Despite the December 9 Order advising Petitioner of the equitable tolling 12 doctrine and what he must do to invoke it, Petitioner did not oppose the Motion. 13 Instead, Petitioner waited until after the Court issued its Report and 14 Recommendation to first raise the following equitable tolling argument, without 15 offering any explanation for his failure to oppose the Motion. In his Objection, 16 Petitioner contends that he is entitled to receive equitable tolling, because he was “in 17 the hole” from March 1, 2021, through August 25, 2021. He asserts that, during that 18 approximately six months long period of time, he lacked access to any of his legal 19 paperwork, had no ability to obtain the Court’s address, and had nothing more than a 20 bible with him. He contend that, as a result, it was “impracticable” and “impossible” 21 for him to file a timely federal habeas petition. 22 Petitioner’s assertions are not made under penalty of perjury, and thus, lack 23 evidentiary value except to the extent they are corroborated by the documents he has 24 attached to the Objection. These documents show that Petitioner was not “in the 25 hole,” as he asserts but, rather, was placed in his institution’s Administrative 26 Segregation Unit (“ASU”) on March 1, 2021, and was returned to general population 27 on August 25, 2021. Petitioner was placed in the ASU due to a pending charge that 28 he committed an act of misconduct, namely, battery with a weapon capable of 8 Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 9 of 12 Page ID #:420

1 causing serious injury, which had been referred to the local District Attorney’s 2 Office for possible criminal prosecution. [Objection at 3, 6, 8-9, 12.] On the date 3 Petitioner was placed in the ASU, his personal property he was “authorized to 4 retain” was inventoried, and the inventory listed various personal items and a “bag 5 of misc. paperwork.” [Id. at 13.] The remainder of the documents attached to the 6 Objection consist of an incident report package for the battery charge and a copy of 7 the Court’s Report and Recommendation in this case. 8 Contrary to Petitioner’s assertion, the documents he has appended to his 9 unsworn Objection do not establish that he lacked access to legal paperwork or court 10 addresses during the six months he spent in the ASU. Under 15 CCR § 3343(a), 11 prisoners in the ASU are to be afforded confinement conditions that “approximate 12 those of the general population” consistent with security and safety issues. Under 13 Section 3343(i), ASU inmates are permitted to obtain and possess the same reading 14 materials as general population inmates, although the quantity may be limited for 15 safety and security reasons. Under Section 3343(k), ASU inmates “shall be 16 permitted to participate in and have access to” institutional programs, including 17 “library services,” again as is consistent with security and safety issues.6 “California 18 prisons allow prisoners to check out library materials and, if in segregated housing, 19 to use a legal paging system to request materials for in-cell study if they cannot 20 attend the library.” Lara v. Yates, No. C 06-3138 MHP, 2010 WL 760486, at *6 21 (N.D. Cal. Mar. 4, 2010); Dossman v. Newland, No. C 00-384 SI, 2009 WL 22 1357455, at *5 (N.D. Cal. May 13, 2009) (same). Under 15 CCR § 3123(c), when 23 an inmate is unable to physically access the law library, he may request that library 24 staff deliver legal materials to him through “law library paging.” Law library paging 25

26 6 See also 15 CCR § 3164(c) (“Inmates who are housed in any restricted unit and who are 27 not serving a period of disciplinary detention may possess and have access to any legal resource material available to the general population and may assist each other in their legal work to the 28 extent compatible with institution security.”; and 15 CCR § 3164(d) (“An inmate in a restricted housing unit may have access to an inmate law library subject to the provisions of section 3123.”). 9 Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 10 of 12 Page ID #:421

1 is available to inmates who have been suspended from physical law library access 2 pending investigation of a serious rule violation and library staff must deliver paged 3 materials within 16 calendar days. 15 CCR § 3123(c)(3) & (e). Thus, had Petitioner 4 needed to obtain this Court’s address or conduct any legal research, he could have 5 done so through the legal paging system available to him. There is no evidence that 6 he made any such effort during his time confined in the ASU. 7 In addition, there is no evidence that Petitioner was precluded from having 8 legal materials in his cell in the ASU. Even if an inmate’s property is inventoried 9 and placed in storage (such as in Receiving and Release) when he is transferred into 10 an ASU, he is permitted to have up to one cubic foot of legal materials in his cell at 11 any given time and can submit a legal property request to the storage department to 12 obtain his legal materials. See Asberry v. Cate, No. 2:11-cv-2462-KJM KJN, 2013 13 WL 3490724, at *2 (E.D. Cal. July 10, 2013); see also 15 CCR § 3191 (in addition 14 to their allotted cubic space for personal property, inmates are allowed an extra cubic 15 foot for legal materials). Even if Petitioner’s legal materials were placed in storage 16 on March 1, 2021, when he first was placed in the ASU, there is no evidence that 17 Petitioner ever asked to have any of them retrieved to be kept and used in his cell. 18 Indeed, Petitioner does not contend that he ever asked to receive his legal 19 materials and was denied, or that he attempted to use the law library paging system 20 available to him but did not receive requested materials or information. Petitioner 21 fails entirely to provide any details of any specific action he took during his time in 22 the ASU. Petitioner’s sole unsworn and unsupported statement that, for six months, 23 he had nothing more than his bible available to him is not sufficient to meet his 24 burden of proving that he was subjected to an extraordinary circumstance during this 25 period of time that rendered it impossible for him to seek federal habeas relief.7 Nor 26 27 7 The Court has not addressed the question, raised in some cases, of whether placement in the ASU due to the commission of a disciplinary offense can satisfy the requirement that an 28 extraordinary circumstance be beyond the petitioner’s control. See, e.g., Davis v. C.C.I. Tehachapi Warden, No. CV 17-00131-DSF (KES), 2017 WL 901884, at *7 (C.D. Cal. Mar. 6, 2017) 10 Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 11 of 12 Page ID #:422

1 is this bare assertion – bereft of an indication that Petitioner made any effort to 2 exercise the rights actually available to him, even if more limited than those in 3 general population – sufficient to establish equitable tolling’s diligence requirement. 4 As the Ninth Circuit made abundantly clear in Smith v. Davis, supra, equitable 5 tolling is not available unless a petitioner was reasonably diligent in pursuing his 6 rights not only during the pendency of the alleged extraordinary circumstance “but 7 before and after as well.” 953 F.3d at 598-99; see also id. at 599 n.9 (describing the 8 foregoing “rule” as one that “requires an evaluation of a petitioner’s diligence across 9 the whole time involved”). Apart from Petitioner’s failure to make any effort during 10 his ASU stint to take even the minimal steps needed to seek federal habeas relief, he 11 has not proffered any explanation for having done nothing during the preceding four 12 and a half months, i.e., once the California Supreme Court denied habeas relief on 13 October 14, 2020, and Petitioner had over four months before being placed in the 14 ASU. Petitioner already had filed a federal habeas petition in April 2020, in Case 15 No. 2:20-cv-03483-JAK (GJS) (as discussed above), and there is no apparent reason 16 why, after the California Supreme Court denied relief, he could not have simply re- 17 filed his prior federal petition or a version of his state high court petition in this 18 Court. Critically, in its April 16, 2020 Order in the prior federal case advising 19 Petitioner of the unexhausted nature of his federal petition and advising him that he 20 could seek a Rhines stay, the Court expressly cautioned Petitioner that if the case 21 were to be dismissed, any subsequent federal habeas petition he filed could be 22 untimely under Section 2244(d)(1). Nonetheless, Petitioner ignored the stay option 23

24 (observing that, in light of this requirement, “[s]ome district courts have . . . concluded that 25 equitable tolling is not available if a petitioner was placed in the ASU or SHU because of his own misconduct,” and discussing contrasting views). Here, the Objection makes it clear that Petitioner 26 vigorously disputes his guilt in connection with the battery charge that led to his ASU placement 27 and there is no evidence of record that he ever suffered a disciplinary conviction for that charge. In any event, the Court need not resolve the foregoing question in this case, because regardless of 28 whether or not an “at fault” ASU placement qualifies as an extraordinary circumstance as an abstract matter, under the facts here, there is no basis for finding that it did. 11 Case 2#:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 12o0f12 Page ID #:423

1 || offered to him and caused the case to be dismissed, despite knowing that he could 2 || face a timeliness problem in the future. Under those circumstances, it was 3 || incumbent upon Petitioner to exercise reasonable diligence going forward, yet he did 4 || not do so. Thus, even if Petitioner’s ASU stint could be an “extraordinary 5 || circumstance,” his lack of diligence dooms his equitable tolling argument. 6 Under these circumstances, the Court cannot conclude that both requirements 7 || for application of the equitable tolling doctrine are met. As a result, equitable tolling 8 || is not available in this case and the Petition remains untimely. Accordingly, the 9 || Motion should be granted, and this action should be dismissed with prejudice. 10 1] RECOMMENDATION 12 For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue 13 |} an Order: (1) accepting this Final Report and Recommendation; (2) granting the 14 || Motion; (3) dismissing the Petition as untimely; and (4) directing that Judgment be 15 || entered dismissing this action with prejudice. 16 || DATED: March 25, 2022 17 by 18 GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 19 20 1 NOTICE 22 Reports and Recommendations are not appealable to the Court of Appeals, but 23 || may be subject to the right of any party to file objections as provided in the Local 24 || Rules and review by the District Judge whose initials appear in the docket number. 25 || No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be 26 || filed until entry of the judgment of the District Court. 27 28 12