1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEPHEN JOSEPH DRAGASITS, Case No.: 3:21-cv-1459-CAB-MDD
12 Petitioner, ORDER: (1) GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS (ECF No. 6) AND 14 PATRIC COVELLO, Warden,
15 Respondent. (2) DENYING PETITIONER’S MOTION FOR STAY AND 16 ABEYANCE AS MOOT (ECF No. 2) 17 18
19 I. INTRODUCTION 20 On August 17, 2021, Petitioner Stephen Joseph Dragasits (“Petitioner” or 21 “Dragasits”), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus 22 pursuant to 28 U.S.C. § 2254, challenging his conviction on two counts of shooting at an 23 occupied vehicle and two counts of assault with a deadly weapon. Pet, ECF No. 1 at 2. On 24 the same day, Petitioner also filed a Motion for Stay and Abeyance. Mot., ECF No. 2. The 25 Court issued a scheduling order on the Motion for Stay on August 18, 2021. ECF No. 4. 26 On September 22, 2021, Respondent filed an Opposition to the Motion for Stay and in it, 27 also moved for the Petition to be dismissed. ECF No. 6. Petitioner filed a Reply to 28 Respondent’s Opposition to the Motion for Stay on October 26, 2021. See ECF No. 8. On 1 November 18, 2021, the Court issued an Order Requiring Supplemental Briefing from 2 Petitioner on Respondent’s Motion to Dismiss. ECF No. 9. The Court gave Dragasits until 3 December 21, 2021 to respond to Respondent’s Motion to Dismiss by filing an Opposition 4 “containing specific evidence and facts germane to the statute of limitations, including any 5 specific facts relevant to statutory and equitable tolling.” Id. at 4. Petitioner failed to file 6 an Opposition. 7 The Court has reviewed the Petition, Petitioner’s Motion for Stay and Abeyance, 8 Respondent’s Motion to Dismiss and Opposition to Petitioner’s Motion for Stay, 9 Petitioner’s Reply, the relevant documents filed in this case, and the legal arguments 10 presented by both parties. For the reasons discussed below, the Court GRANTS 11 Respondent’s Motion to Dismiss and DENIES Petitioner’s Motion for Stay and Abeyance 12 as MOOT. 13 II. PROCEDURAL BACKGROUND 14 On May 23, 2013, after a jury trial, Dragasits was convicted of two counts of 15 shooting at an occupied vehicle (Cal. Pen. Code § 246) and two counts of assault with a 16 deadly weapon (Cal. Penal Code § 245(a)(2)). As to count one, the jury found Petitioner 17 personally inflicted great bodily injury (Cal. Penal Code § 12022.7(a)) and discharged a 18 firearm causing great bodily injury (Cal. Penal Code § 12022.53(d)). The jury found true 19 an allegation that Dragasits inflicted great bodily injury (Cal. Penal Code § 12022.7(a)) 20 and personally used a firearm (Cal Penal Code § 12022.5(a)). The jury also found true the 21 allegations that Petitioner used a firearm within the meaning of California Penal Code 22 section 1192.7(c)(8). The court sentenced Dragasits to an indeterminate term of 25 years- 23 to-life plus a determinate term of 11 years 4 months in prison. ECF No. 7-1 at 2, fn. 2. 24 Dragasits appealed to the California Court of Appeal and his conviction was 25 affirmed on February 6, 2015. Id. He then filed a petition for review with the California 26 Supreme Court. See generally ECF No. 7-2. On April 29, 2015, the California Supreme 27 Court granted the petition and “deferred” action “pending consideration and disposition of 28 a related issue in People v. Lowe, S215727 and People v. Buza, S223698.” Id. 1 The appeal remained “deferred” until July 18, 2018, when the California Supreme 2 Court transferred the case back to the Court of Appeal to “consider the effect, if any, of 3 recent legislative amendments to the firearm enhancement statutes on Dragasits’ sentence.” 4 ECF No. 7-3. On October 2, 2018, the appellate court vacated Dragasits’ sentence and 5 remanded the case back to the trial court for resentencing. ECF No. 7-4. After Dragasits 6 was resentenced, he appealed again to the California Court of Appeal, which affirmed the 7 judgment on March 19, 2020. ECF No. 7-5. Dragasits did not file a petition for review in 8 the California Supreme Court. He did, however, file a state petition for writ of habeas 9 corpus with the San Diego Superior Court on May 14, 2021, which was denied on June 21, 10 2021. ECF No. 7-7. 11 Dragasits filed his federal petition for writ of habeas corpus under 28 U.S.C. § 2254 12 along with a Motion for Stay and Abeyance in this Court on August 12, 2021. ECF Nos. 13 1 & 2. 14 III. DISCUSSION 15 As discussed above, currently before the Court are Petitioner’s Motion for Stay and 16 Abeyance and Respondent’s Motion to Dismiss. Petitioner seeks a stay of the proceedings 17 so that he may exhaust his ineffective assistance of counsel claims in state court.1 ECF No. 18 2 at 1. Respondent opposes a stay and has also moved to have the Court dismiss the Petition 19 in its entirety, arguing it is untimely under the statute of limitations. ECF No. 6. 20
21 1 The exhaustion of available state remedies is a prerequisite to a federal court’s consideration of 22 claims sought to be presented in habeas corpus proceedings. See Rose v. Lundy, 455 U.S. 509, 23 522 (1982); 28 U.S.C. § 2254(b). A district court must dismiss a habeas petition that contains both exhausted and unexhausted claims. Rose, 455 U.S. at 522. However, a district court may stay a 24 mixed petition containing both exhausted and unexhausted claims so that the petitioner may exhaust his claims in state court without running afoul of the one-year statute of limitations 25 imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Rhines v. 26 Weber, 544 U.S. 269, 273–75 (2005). A district court must stay a mixed petition if: (1) the petitioner has good cause for his failure to exhaust his claims, (2) the unexhausted claims are 27 potentially meritorious, and (3) there is no indication that the petitioner engaged in intentionally 28 dilatory litigation tactics. Id. at 278. 1 In addition to the exhaustion requirement, The Antiterrorism and Effective Death 2 Penalty Act of 1996 (“AEDPA”) imposes a statute of limitations on petitions for a writ of 3 habeas corpus filed by state prisoners. Generally, petitions filed by prisoners challenging 4 noncapital state convictions or sentences must be filed within one year of the judgment 5 becoming final. 28 U.S.C. § 2244(d)(1)(A). Therefore, regardless of whether claims are 6 exhausted or whether a stay would otherwise be appropriate, the Petition may not be 7 considered if it is barred by the statute of limitations. See e.g., Salcido v. Small, No. 09-cv- 8 2883-FMC-JWJ, 2009 WL 2486176, at *4 (C.D. Cal. Aug. 10, 2009) (“[S]ince the statute 9 of limitations for petitioner’s federal petition has already expired, Petitioner’s Request [for 10 Stay] is denied.”) As such, the Court will discuss the statute of limitations first. 11 A. Statute of Limitations 12 Petitions filed by prisoners challenging non-capital state convictions or sentences 13 must be filed within one year of the date on which: (A) the judgment became final after the 14 conclusion of direct review or the time passed for seeking direct review; (B) an impediment 15 to filing an application created by unconstitutional state action was removed, if such action 16 prevented petitioner from filing; (C) the constitutional right asserted was recognized by the 17 Supreme Court, if the right was newly recognized by the Supreme Court and made 18 retroactive to cases on collateral review; or (D) the factual predicate of the claim could 19 have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)(A– 20 (D). Once a petitioner is notified that his petition is subject to dismissal based on the 21 AEDPA’s statute of limitations and the record indicates that the petition falls outside the 22 one-year time period, he bears the burden of demonstrating that the limitations period was 23 sufficiently tolled under statutory and/or equitable principles. See Smith v. Duncan, 297 24 F.3d 809, 814 (9th Cir. 2002) overruled on other grounds by Pace v. DiGuglielmo, 544 25 U.S. 408, 418 (2005). 26 1. Commencement of Limitation Period 27 The one-year period may commence at “the expiration of the time for seeking 28 [direct] review.” 28 U.S.C. § 2244(d)(1)(A). “Direct review” includes the period within 1 which a petitioner can file a petition for a writ of certiorari from the United States Supreme 2 Court, whether or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 3 1157, 1159 (9th Cir. 1999). If a petitioner could have sought review by the state court of 4 appeals or the state supreme court, but did not, the limitation period will begin running 5 against him the day after the date on which the time to seek such review expired. See Cal. 6 Rule of Court 8.308(a) (providing that appeal from criminal judgment must be filed within 7 sixty days after rendition of judgment or making of order being appealed) (formerly Cal. 8 Rule of Court 31). 9 Here, Dragasits’ direct appeal took a circuitous route through the California courts 10 and as such, determining when Dragasits’ conviction became final is not straightforward. 11 His first direct appeal to the California Court of Appeal was decided on February 6, 2015, 12 when the appellate court affirmed his conviction. ECF No. 7-1. Dragasits then filed a 13 petition for review in the California Supreme Court, raising the same claims he had raised 14 in his initial appeal to the appellate court: (1) the trial court erred in denying his motion to 15 suppress DNA evidence based on the Fourth Amendment, (2) his due process rights under 16 Trombetta/Youngblood were violated when the prosecutor failed to preserve DNA 17 evidence/the DNA sample was consumed, (3) the trial court erred in refusing to instruct 18 the jury on DNA/blood sample lost and (4) Senate Bill No. 602. See id. On April 29, 2015, 19 the California Supreme Court granted the petition for review and “deferred” action 20 “pending consideration and disposition of a related issued in People v. Lowe, S215727 and 21 People v. Buza, S223698.” ECF No. 7-2. 22 The California Supreme Court decided Buza on April 2, 2018, concluding: 23 The sole question before us is whether it was reasonable, under either the Fourth Amendment or article I, section 13 of the California Constitution, 24 to require the defendant in this case to swab his cheek as part of a routine jail 25 booking procedure following a valid arrest for felony arson. Because we conclude the requirement was reasonable as applied to defendant, we hold he 26 is subject to the statutory penalties prescribed in Penal Code section 298.1. 27 28 People v. Buza, 4 Cal. 5th 658, 691 (2018). As for People v. Lowe, the state high court 1 dismissed the petition for review and remanded to the case to the California Court of 2 Appeal on June 27, 2018 “in light of the decision in People v. Buza (2018) 4 Cal. 5th 658, 3 230 Cal. Rptr. 3d 681, 413 P.3d 1132. (Cal. Rules of Court, rule 8.528(b)(1).)” See People 4 v. Lowe, 420 P.3d 213, 234 Cal. Rptr. 3d 710 (Cal. 2018). 5 On July 18, 2018, the California Supreme Court transferred Dragasits’ appeal, which 6 by then had been stayed for over three years, to the Court of Appeal “with directions to 7 vacate its decision and to reconsider the cause in light of Senate Bill No. 620 (Stats. 2017, 8 ch. 682) and In re Estrada (1965) 63 Cal.2d 740. (Cal. Rules of Court, rule 8.528(d).)” 2 9 ECF No. 7-3. On October 2, 2018, the Court of Appeal issued its decision on remand. ECF 10 No. 7-4. It again affirmed Dragasits’ conviction but vacated his sentence and remanded the 11 case to the trial court for resentencing and to “exercise its discretion under sections 12 12022.5(c) and 12022.53(h), by deciding whether to strike or dismiss Dragasits’s firearm 13 enhancements.” Id. at 34. The appellate court also directed the trial court to correct a 14 miscalculation of presentence custody credits. Id. Upon remand, the trial court found the 15 original sentence to be appropriate and imposed the same sentence of 25 years to life, plus 16 11 years. See ECF No. 7-5 at 3. Dragasits appealed the trial court’s decision and on March 17 19, 2020, the Court of Appeal affirmed his sentence. Id. Dragasits’ did not file a petition 18 for review of the appellate court’s decision. 19 Because Dragasits did not file a petition for review to the California Supreme Court, 20 the denial of his third appeal on March 19, 2020 is the relevant date by which to determine 21
22 2 Senate Bill No. 620 gave trial courts previously unavailable discretion to strike or dismiss 23 firearm enhancements otherwise required to be imposed by Penal Code sections 12022.5 and 12022.53.1 (§ 12022.5(c), as amended by Stats. 2017, ch. 682, § 1; § 12022.53(h), as amended by 24 Stats. 2017, ch. 682, § 2.) There is no dispute that these statutory amendments apply retroactively to cases in which the judgment was not yet final when Senate Bill No. 620 went into effect. See, 25 e.g., People v. Almanza, 24 Cal. App. 5th 1104, 1105–06, 1109 (2018); People v. Arredondo, 21 26 Cal. App. 5th 493, 506–07 (2018); People v. Woods, 19 Cal. App. 5th 1080, 1090–91 (2018); People v. Robbins, 19 Cal. App. 5th 660, 678–79 (2018). As such, Senate Bill No. 620 applied to 27 Dragasits’ case because his appeal was pending, and therefore his conviction not final, when 28 Senate Bill No. 620 took effect on January 1, 2018. 1 when his conviction became final. The Supreme Court has concluded that “when a 2 petitioner does not appeal to the State’s highest court, the judgment became final when his 3 time for seeking review with the State’s highest court expired.” Gonzalez v. Thaler, 565 4 U.S. 134, 148–49 (2012). In California, a conviction becomes final when the time for filing 5 a petition for review has expired. Specifically, a court of appeal decision in criminal cases 6 typically becomes “final” 30 days after it is issued (see Cal. Rules of Ct. 8.366(b)(1)), and 7 any petition for review must be filed in the California Supreme Court 10 days after a court 8 of appeal’s decision becomes final. Cal. Rules of Ct. 8.500(e)(1). 9 Therefore, after Dragasits’ appeal was decided on March 19, 2020, he had until April 10 28, 2020 – 40 days after the judgment was affirmed by the appellate court – to file a petition 11 for review. See Cal. Rules Ct. 8.366(b)(1) & 8.500(e)(1). That time was extended another 12 30 days based on an emergency order issued by the California Supreme Court on April 4, 13 2020, extending the time to file petitions for review because of the public health emergency 14 presented by the COVID-19 pandemic and granting a thirty-day extension for all deadlines 15 in that court, including dates of finality. See Rowan v. Kirkpatrick, 54 Cal. App. 5th 280, 16 292–93 (Cal. App. 2020) (citing emergency orders issued by the Judicial Council pursuant 17 to Rule 8.66,3 extending filing deadlines falling between March 17, 2020 and May 18, 2020 18 by 30 days). 19
20 3 California Rule of Court 8.66 allows for “tolling or extending time because of public 21 emergency,” stating in relevant part:
22 (a) If made necessary by the occurrence or change of earthquake, fire, public 23 health crisis or other public emergency or by the destruction of or danger to a building housing a review court, the Chair of the Judicial Council, notwithstanding 24 any other rule in this title, may:
25 (1) Toll for up to 30 days or extend by no more than 30 days any time 26 periods specified by these rules; or
27 (2) Authorize specified courts to toll for up to 30 days or extend by no more 28 than 20 days any time periods specified by these rules. 1 Taking into consideration the emergency order from the California Supreme Court, 2 Dragasits’ judgment became final on May 28, 2020, the last day he could have timely filed 3 a petition for review in the California Supreme Court. Thus, absent any tolling, the one- 4 year statute of limitation expired on May 28, 2021. Dragasits constructively filed his 5 federal petition on August 12, 2021,4 76 days after the statute of limitation had expired. 6 Accordingly, unless Dragasits is entitled to statutory or equitable tolling of the limitation 7 period, his Petition is untimely. 8 2. Statutory Tolling 9 AEDPA’s one-year limitations period is tolled under § 2244(d)(2) for the “‘time 10 during which a properly filed application for State post-conviction or other collateral 11 review [with respect to the pertinent judgment or claim] is pending.’” Dictado v. 12 Ducharme, 244 F.3d 724, 726 (9th Cir. 2001) (quoting 28 U.S.C. § 2244(d)(2)), abrogated 13 on other grounds by Pace v. DiGuglielmo, 544 U.S. 408 (2005). 14 Dragasits filed a petition for writ of habeas corpus in the San Diego Superior Court. 15 A state habeas petition filed before the limitations period begins to run tolls the limitation 16 period. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). While Dragasits’ petition was 17 docketed with the superior court on May 20, 2021, it is deemed constructively filed on May 18 14, 2021 (see ECF No. 7-6 at 22), when it was placed in the United States mail. See Stillman 19 v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003); see also Hernandez v. Spearman, 764 20 F.3d 1071, 1074 (9th Cir. 2014) (“The [mailbox] rule applies equally to a pro se prisoner’s 21 filing of a California state habeas petition.”). At that point, Dragasits had 14 days left on 22 his statute of limitations. 23 / / / 24 25 26 4 The Court applies the “prison mailbox rule” to pro se prisoner petitions, deeming the petition filed on the date the prisoner delivers it to prison authorities for forwarding to the clerk of court. 27 Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). Here, Petitioner delivered the 28 petition to correctional officials for mailing on August 12, 2021. ECF No. 1 at 50. 1 The superior court denied the petition on June 21, 2021 (ECF No. 7-7), at which 2 time the limitation clock restarted. Absent additional tolling, Dragasits then had 14 days 3 from the denial of his state petition, or until July 5, 2021, to timely file his federal petition. 4 Thus, even with statutory tolling, Dragasits’ federal petition was filed 38 days late.5 The 5 Petition is therefore untimely unless Dragasits can show he is eligible for a sufficient period 6 of equitable tolling. 7 3. Equitable Tolling 8 A Petitioner is entitled to equitable tolling if he shows “(1) that he has been pursuing 9 his rights diligently, and (2) that some extraordinary circumstance stood in his way and 10 prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace, 544 11 U.S. at 418); Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (quoting Pace); 12 Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (“When external forces, rather than a 13 petitioner’s lack of diligence, account for the failure to file a timely claim, equitable tolling 14 of the statute of limitations may be appropriate.”) The petitioner bears the burden of 15 showing that this “extraordinary exclusion” should apply to him. Miranda v. Castro, 292 16 F.3d 1063, 1065 (9th Cir. 2002). The diligence required for purposes of equitable tolling 17 is “reasonable diligence,” rather than “maximum feasible diligence.” Holland, 560 U.S. at 18 653 (citation and internal quotation marks omitted). The petitioner also must show that “the 19 extraordinary circumstances were the cause of his untimeliness, and that the extraordinary 20 circumstances made it impossible to file a petition on time.” Ramirez v. Yates, 571 F.3d 21
22 23 5 According to the appellate court’s docket, it appears Dragasits filed a petition for writ of habeas corpus in the California Court of Appeal on October 25, 2021 in case number D079620. See 24 https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?doc_id=2365170&requ est_token=NiIwLSEmPkw%2BWyBBSSFNSE1IQEQ6UkxbJCBOXzhTMCAgCg%3D%3D&s 25 tart=1&doc_no=D079620&dist=41&search=party&auth=yes (visited Jan. 13, 2022). That 26 petition was denied on November 4, 2021. Id. This petition does not toll the statute of limitations because an application for state post-conviction or other collateral review filed after the limitations 27 period has ended cannot toll the limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (Section 2244(d) does not permit the reinitiation of the limitations period that has 28 1 993, 997 (9th Cir. 2009) (internal quotation marks and citations omitted). “This is a very 2 high bar, and is reserved for rare cases.” Yow Ming Yeh v. Martel, 751 F.3d 1075, 1077 3 (9th Cir. 2014) 4 Equitable tolling determinations are highly fact-specific, and therefore require a 5 flexible, case-by-case approach. Bills v. Clark, 628 F.3d 1092, 1097–98 (9th Cir. 2010). If 6 more than one “extraordinary circumstance” is alleged, a petitioner can show that the 7 circumstances together made a timely filing impossible, rather than proving that each factor 8 independently made a timely filing impossible. Ramirez, 571 F.3d at 1000. 9 In his Reply, Dragasits argues that he is entitled to equitable tolling because his 10 appellate counsel erroneously advised him that his federal habeas petition would be due on 11 August 16, 2021. ECF No. 8 at 4–5. He attaches a letter he received from counsel after his 12 appeal was denied. Id. at 9. In the letter, dated March 25, 2020, appellate counsel informed 13 Petitioner that the California Court of Appeal had affirmed his conviction and that there 14 was “no legal basis to petition for review from the decision.” Id. at 9. Counsel then 15 informed Dragasits that he could seek relief in federal court. She stated: “The deadline for 16 filing a federal habeas petition is one year and 90 days from the date the judgment in this 17 current appeal is final. The judgment in this current appeal will be final on May 18, 2020; 18 therefore, the deadline for filing a federal habeas petition would be August 16, 2021.” Id. 19 Appellate counsel’s calculation of the filing deadline for a federal habeas petition, 20 however, was unfortunately erroneous. It included reference to “one year and 90 days from 21 the date of judgment” but those 90 days only apply when a Petitioner is entitled to seek 22 review in the United States Supreme Court. See Bowen v. Roe, 188 F.3d 1157, 1158–59 23 (9th Cir. 1999) (emphasis added). Because Dragasits did not seek review in the California 24 Supreme Court after his third appeal was denied, he was not entitled to petition the United 25 States Supreme Court for a writ of certiorari. The Supreme Court may only hear cases from 26 a state court of last resort, that is, “the highest court of a State in which a decision could be 27 had.” 28 U.S.C. § 1257(a); see also Sup. Ct. R. 13.1 (“Unless otherwise provided by law, 28 a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered 1 by a state court of last resort or a United States court of appeals (including the United States 2 Court of Appeals for the Armed Forces) is timely when it is filed with the Clerk of this 3 Court within 90 days after entry of the judgment.”); Costarelli v. Massachusetts, 421 U.S. 4 193, 195 (1975) (per curiam). Thus, Dragasits’ failure to seek review in the California 5 Supreme Court barred him from seeking a writ of certiorari. As no petition for writ of 6 certiorari could be filed, no additional 90-day grace period for the filing of such a petition 7 is applicable. See Alarcon v. Marshall, 188 F. App’x 608, 609–10 (9th Cir. 2006). 8 In Miranda v. Castro, 292 F.3d 1063 (9th Cir. 2002), the Ninth Circuit addressed 9 whether a habeas petitioner’s reliance on the erroneous advice of appointed counsel was 10 sufficient to warrant equitable tolling of the one-year statute of limitations on filing a 11 federal habeas corpus petition. In Miranda, the petitioner received a letter from his 12 appointed appellate counsel which stated that “[a]t this point my appointment to represent 13 you is concluded,” and also included information and forms for the prisoner to file a federal 14 habeas corpus petition. Id. at 1066. Unfortunately, rather than informing the petitioner in 15 the letter that his one-year statute of limitations under AEDPA expired on April 23, 2000, 16 counsel informed the petitioner in a likely “typo” that it expired on April 23, 2001. See id. 17 Thereafter, the petitioner did not file his federal habeas petition until December 5, 2000, 18 which at that point was fifty-three days late. See id. at 1064–65. In arguing for equitable 19 tolling, the petitioner contended that “he relied upon the appointed attorney’s advice— 20 which turned out to be erroneous—and that ‘but for that reliance [his] petition would have 21 been filed’ in a timely manner.” Id. at 1066. 22 The Ninth Circuit denied Miranda’s request for equitable tolling, noting that the 23 petitioner “had a right to appointed appellate counsel during the course of his direct 24 review—and thus, as he contends, to the ‘effective assistance’ of that counsel,” but the 25 attorney’s representation of the petitioner in connection with his direct review had already 26 ended when she wrote the letter. Id. at 1067. Thus, although “the attorney generously 27 offered some final thoughts—which apparently included a miscalculated due date, or at 28 least a typo—in a letter after the close of her representation,” those thoughts “pertained not 1 to the direct review for which she was appointed, but to habeas relief, for which she was 2 not;” and the petitioner “had no right to that advice.” Id. at 1067–68. In response to 3 petitioner’s argument that “‘it may be true that appointed counsel has no duty to advise a 4 client regarding the availability of state or federal habeas relief,’ but if a counsel undertakes 5 to offer such advice, ‘it must be accurate,’ the Ninth Circuit stated that its “precedents 6 foreclose this contention.” Id. at 1068. The court concluded that “because [the petitioner] 7 had no right to the assistance of his appointed appellate counsel regarding post-conviction 8 relief, it follows that he did not have the right to that attorney’s ‘effective’ assistance, 9 either.” Id. (citing Miller v. Keeney, 882 F.2d 1428, 1431–32 (9th Cir. 1989)). 10 Based on the record before the Court, there is no evidence to suggest that Petitioner 11 retained appellate counsel as counsel past her appointment through Appellate Defenders, 12 Inc. Because Dragasits did not have the right to the assistance of appellate counsel 13 regarding post-conviction relief, he was not entitled to her “effective assistance.” See 14 Miranda, 292 F.3d at 1068. Therefore, he is not entitled to equitable tolling of the statute 15 of limitations based on counsel’s erroneous advice. Lawrence v. Florida, 549 U.S. 327, 16 336–37 (2007) (stating “attorney miscalculation is simply not sufficient to warrant 17 equitable tolling, particularly in the postconviction context where prisoners have no 18 constitutional right to counsel”). 19 Dragasits also argues he is entitled to equitable tolling of the statute of limitations 20 due to the COVID-19 pandemic. He states that “since March 2020, until a couple months 21 ago, the law library has been closed because of COVID-19.” ECF No. 8 at 5. He alleges 22 that even written requests for forms and cases received no reply from prison library staff 23 during that time period. Id. at 5. Dragasits states that that because of the COVID-19 24 pandemic, he needed the assistance of his family “to hire some help with his claims” from 25 someone outside of the prison because the impact of the COVID-19 pandemic inside the 26 prison caused lengthy quarantines and lockdowns. Id. He also alleges that he “signed a 27 contract with a paralegal/Legal Document Assistant [LDA] on approximately July 3, 2020” 28 but “due to the COVID-19 prison pandemic, letters and phone calls to the LDA and [his] 1 sister who was funding th[e] petition” were extremely rare. Id. Finally, he states that he 2 wrote a letter to his former trial counsel on December 15, 2020, seeking assistance with 3 preparing his ineffective assistance of counsel claims6 but received no response. Id. 4 While there are not many cases discussing the issue, most that have addressed it have 5 found that general claims of prison lockdowns and lack of access to the prison law library 6 as a result of the COVID-19 pandemic alone are insufficient amount to the “extraordinary 7 circumstances” required to entitle an inmate to equitable tolling. See Shephard, v. 8 Asuncion, No. 21-cv-4147-JWH-E, 2021 WL 6496744, at *10 (C.D. Cal. Nov. 3, 2021) 9 (finding petitioner was not entitled to equitable tolling during alleged “total lockdown” due 10 to COVID-19 between March 2020 and August 2020); Sholes v. Cates, No. 1:21-cv-1006- 11 DAD-HBK, 2021 WL 5567381, at *4 (E.D. Cal. Nov. 29, 2021) (concluding prisoner not 12 entitled to equitable tolling during COVID outbreak which caused the law library to be 13 closed “for months” and thereafter open with only limited access); see also Russi v. Smith, 14 20-cv-4580, 2022 WL 118110, at *2 (E.D. Pa. Jan 12, 2022) (“The COVID-19 pandemic 15 does not automatically warrant equitable tolling. . .. The Petitioner must establish that he 16 was pursuing his rights diligently and that the COVID-19 pandemic specifically prevented 17 him from filing his motion.”) (citing United States v. Henry, No. 17-cr-00180, 2020 WL 18 7332657, at *4 (W.D. Pa Dec. 14, 2020)); see also Rush v. Sec’y, Fla. Dep’t of Corr., No. 19 21-10218-C, 2021 WL 3134763, at *1 (11th Cir. June 22, 2021) (unpublished) (explaining 20 COVID-19 not an extraordinary circumstance because all prisoners attempting to access 21 legal resources subject to COVID-19 protocols). 22 Some district courts have recognized that the COVID-19 pandemic could lead to an 23 extraordinary circumstance warranting tolling under certain circumstances. See e.g., 24 25 26 6 Dragasits’ letter to trial counsel included questions relevant to making his claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 688 (1984). For instance, he 27 inquired about her tactical or strategic reasons for failing to challenge certain testimony from prosecution witness and failure to challenge expert testimony regarding DNA found on shell 28 1 United States v. Marshall, 2021 WL 3854469 at * 2 (E.D. Ky. August 5, 2021), report and 2 recommendation adopted, 2021 WL 3844749 (E.D. Ky. August 27, 2021) (collecting 3 cases); see also Hager v. Warden, Ross Correctional Inst., 2021 WL 2291319 at * 3 (S.D. 4 Ohio June 4, 2021), report and recommendation adopted, 2021 WL 2670622 (S.D. Ohio 5 June 29, 2021); United States v. Smith, 2020 WL 4016242 at *2 (D. Md. July 16, 2020). 6 However, even in cases recognizing that circumstances created by the COVID-19 7 pandemic could amount to “extraordinary circumstances” in some instances, those courts 8 have found that a petitioner seeking tolling on such a basis must still demonstrate fact- 9 specific circumstances related to the pandemic that hindered his ability to timely file a 10 habeas petition. See Chapman-Sexton v. United States, 2021 WL 292027 at *3 (S.D. Ohio 11 Jan. 28, 2021), report and recommendation adopted, 2021 WL 982718 (S.D. Ohio Mar. 16, 12 2021) (observing the court’s prior recognition that COVID-19 presented an “extraordinary 13 circumstance” generally but concluding that it did not in that particular case because the 14 petitioner failed to adequately explain why COVID-19 prevented him from timely filing 15 his petition); Pryor v. Erdos, No. 5:20-CV-2863, 2021 WL 4245038, at *9 (N.D. Ohio 16 Sept. 17, 2021) (concluding general complaints that COVID-19 prevented access to 17 unidentified legal materials while in prison was insufficient to carry a petitioner’s burden 18 of demonstrating that an “extraordinary circumstance” prevented timely filing because 19 petitioner failed to sufficiently explain what additional materials he needed or why lack of 20 access to those materials actually prevented him from timely filing his petition). 21 Dragasits has failed to provide a sufficiently specific explanation as to how COVID- 22 19 hindered his ability to timely file his federal petition. While he describes general 23 difficulties in accessing the prison library during COVID-19 lockdowns, Petitioner fails to 24 provide facts to show that lack of access to the library “actually prevented” him from filing 25 his federal petition. See Chapman-Sexton, 2021 WL 292027 at *3. To the extent Dragasits 26 provides specific facts regarding hindrances to preparing his petition, those difficulties 27 occurred in between July and December 2020. He has not, however, submitted any specific 28 factual or evidentiary support for the claim that prison lockdowns due to COVID-19 1 prevented him from timely filing his federal habeas petition before it was due on July 5, 2 2021. See Miranda, 292 F.3d at 1065 (stating habeas petitioner has “burden of showing 3 that [the] extraordinary exclusion [of equitable tolling] should apply to him”); see also 4 Robinson v. Marshall, 405 Fed. App’x 241, 242 (9th Cir. 2010) (finding equitable tolling 5 unwarranted where petitioner “did not demonstrate how limited access to the library [due 6 to extended prison lockdowns] was the cause of his failure to timely file his petition”). This 7 Court provided Dragasits an opportunity to provide more specific information regarding 8 tolling of the statute of limitations by ordering supplemental briefing “containing specific 9 evidence and facts germane to the statute of limitations, including any specific facts 10 relevant to statutory and equitable tolling” (see ECF No. 9 at 4), but Dragasits failed to file 11 a supplemental brief. Accordingly, Petitioner is not entitled to equitable tolling based on 12 alleged COVID-19 lockdowns and/or lack of library access. 13 In sum, based on the record, the Court finds Petitioner has failed to meet his burden 14 to show he was sufficiently diligent “extraordinary circumstances” made it impossible to 15 file a petition on time. See Martel, 751 F.3d at 1077 (“This is a very high bar, and is 16 reserved for rare cases.”). Therefore, he is not entitled to equitable tolling. 17 4. Conclusion 18 For the reasons discussed above, the Court finds that the Petition was filed after the 19 expiration of the statute of limitations and because Dragasits has failed to establish he is 20 entitled to sufficient statutory and equitable tolling to render the Petition timely, the 21 Petition is barred from review. Respondent’s Motion to Dismiss is therefore GRANTED. 22 B. Motion for Stay and Abeyance 23 Petitioner requests that this Court stay his federal Petition and hold it in abeyance 24 while he exhausts his ineffective assistance of counsel claims in state court. ECF No. 2. 25 However, since the statute of limitations for Dragasits’ federal petition has already expired 26 for the reasons discussed above, the Motion is DENIED as moot. 27 / / / 28 / / / 1 ||IV. CONCLUSION AND ORDER 2 For the reasons discussed above, the Court GRANTS Respondent’s Motion to 3 || Dismiss (ECF No. 6) and DENIES Petitioner’s Motion for Stay and Abeyance (ECF No. 4 ||2) as moot. 5 Furthermore, the Rules Following 28 U.S.C. § 2254 require the District Court to 6 || ““issue or deny a certificate of appealability when it enters a final order adverse to the 7 applicant.” Rule 11,28 U.S.C. foll. § 2254 (West 2019). A certificate of appealability will 8 ||issue when the petitioner makes a “substantial showing of the denial of a constitutional 9 || right.” 28 U.S.C. § 2253 (West 2019); Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005). 10 “substantial showing” requires a demonstration that “‘reasonable jurists would find the 11 |/district court’s assessment of the constitutional claims debatable or wrong.’” Beaty v. 12 || Stewart, 303 F.3d 975, 984 (9th Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 13 ||(2000)). Here, the Court concludes Dragasits has not made the “substantial showing” 14 || required to establish that he is entitled to sufficient tolling to render the Petition timely, and 15 therefore a certificate of appealability is DENIED. 16 || IT ISSO ORDERED. 17 || Dated: January 24, 2022 (GR 8 Hon. Cathy Ann Bencivengo 19 United States District Judge 20 21 22 23 24 25 26 27 28