1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ELLERY DENNIS THOMAS, ) Case No. 5:19-cv-00850-JAK-JC 11 ) ) 12 Petitioner, ) ) ORDER ACCEPTING FINDINGS, 13 v. ) CONCLUSIONS, AND ) RECOMMENDATIONS OF 14 MADDEN, Warden, et al., ) UNITED STATES MAGISTRATE ) JUDGE 15 ) Respondents. ) 16 ________________________________ 17 I. SUMMARY 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of 19 Habeas Corpus (“Petition”) and accompanying documents, the Motion to Dismiss 20 the Petition and supporting documents, the October 28, 2019 original Report and 21 Recommendation of United States Magistrate Judge (“Original R&R”), petitioner’s 22 late-filed Response to the Motion to Dismiss which the Court received after its 23 issuance of the Original R&R and which contains requests for discovery and 24 related tolling, a stay, and the appointment of counsel (Docket No. 21), the 25 December 4, 2019 Superseding Report and Recommendation of United States 26 Magistrate Judge (“Superseding R&R”), petitioner’s Motion to Reconsider 27 (Docket No. 22), which the Court received after its issuance of the Superseding 28 R&R and which appears to seek reconsideration of/to object to the Original R&R, 1 and all of the records herein. Although petitioner has not filed objections to the 2 Superseding R&R, the Court construes the Motion to Reconsider to constitute 3 objections thereto. 4 The Court has made a de novo determination of those portions of the 5 Superseding Report and Recommendation to which objection is made. The Court 6 concurs with and accepts the findings, conclusions, and recommendations of the 7 United States Magistrate Judge, denies the Motion to Reconsider/overrules 8 petitioner’s objections, and denies the requests contained within petitioner’s 9 Response to the Motion to Dismiss. Although the Court has considered and 10 overruled all of petitioner’s objections and requests, the Court further addresses 11 certain of petitioner’s objections and requests below. 12 II. DISCUSSION 13 A. Petitioner Has Not Shown He Is Entitled to a Delayed Accrual 14 Date for the Statute of Limitations or to Equitable Tolling 15 Petitioner asserts that there are “many particulars [he] did not know at trial,” 16 e.g., defense counsel did not interview petitioner’s family which “may have 17 changed the outcome and verdict of trial,” and defense counsel told petitioner that 18 California was a “one party” state when it is a “two party” state. (Motion to 19 Reconsider at 4-5, 10). To the extent petitioner is arguing for a later accrual date 20 for the statute of limitations under 28 U.S.C. § 2244(d)(1)(D), he has not shown 21 entitlement to a later date. The claims petitioner has raised in the Petition were 22 raised with the state courts on direct appeal and predicated upon events that 23 occurred at trial. 24 Petitioner also asserts that the Petition should not be considered time-barred 25 because of his confinement in prison and the special restrictions that incarceration 26 imposes. (Motion to Reconsider at 3). Petitioner generally cites to lockdowns on a 27 Level III yard, his transfer at some unknown time from one prison to another for 28 two weeks, and his lack of an attorney or legal assistance as reasons for his failure 2 1 to timely file the Petition. (Motion to Reconsider at 3, 10-11). These alleged 2 impediments do not entitle petitioner to tolling of the statute of limitations. 3 The asserted prison lock-downs and prison transfer do not warrant equitable 4 tolling because they do not constitute “extraordinary circumstances” that stood in 5 petitioner’s way. Holland v. Florida, 560 U.S. 631, 649 (2010). Despite the 6 alleged lockdowns and prison transfer, petitioner was able to file pro se one state 7 habeas petition with the San Bernardino County Superior Court within the statute 8 of limitations period. (Lodged Doc. 4). There is no suggestion that any lockdowns 9 or the prison transfer prevented petitioner from filing timely the instant Petition – 10 which simply repeats the claims raised by petitioner’s counsel on direct review. 11 A petitioner who is denied access to his legal files while in administrative 12 segregation or during a prison transfer may be entitled to equitable tolling so long 13 as he is diligently pursuing his claims. See Espinoza-Matthews v. California, 432 14 F.3d 1021, 1027-28 (9th Cir. 2005) (petitioner denied access to legal materials 15 while in administrative segregation entitled to equitable tolling); Lott v. Mueller, 16 304 F.3d 918, 924-25 (9th Cir. 2002) (petitioner denied access to legal files during 17 transfer per prison policy entitled petitioner to equitable tolling). Here, petitioner 18 has not alleged if or when he may have been without his legal materials, or 19 demonstrated that he was reasonably diligent in pursuing his claims during the 20 running of the statute of limitations. See Rhodes v. Kramer, 451 Fed. Appx. 697, 21 698 (9th Cir. 2011) (limited library access and lockdowns did not merit equitable 22 tolling); Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (per curiam) (pro 23 se status, deficient prison library, and reliance on helpers who were transferred or 24 too busy to assist him did not warrant equitable tolling; inmate failed to 25 demonstrate diligence in accessing prison law library when inmate failed to make 26 any specific allegation as to what he did to pursue his claims and complain about 27 situation) (citation omitted); Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) 28 (ordinary prison limitations on a petitioner’s access to the law library do not 3 1 constitute extraordinary circumstances); Miller v. Marr, 141 F.3d 976, 978 (10th 2 Cir.) (denying equitable tolling when petitioner “provided no specificity regarding 3 the alleged lack of access and the steps he took to diligently pursue his federal 4 claims.”), cert. denied, 525 U.S. 891 (1998); Giraldes v. Ramirez-Palmer, 1998 5 WL 775085, *2 (N.D. Cal. Nov. 3, 1998) (lockdown expected, albeit 6 unpredictable, part of prison life and not “extraordinary circumstance” that would 7 justify equitable tolling where petitioner made no showing that it actually impeded 8 his efforts to prepare petition, and had been able to file three state petitions during 9 period he allegedly was hindered in his effort to file the federal petition). 10 Petitioner’s lay status/ignorance of the law is not itself a basis for equitable 11 tolling. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir.) 12 (“[A] pro se petitioner’s confusion or ignorance of the law is not, itself, a 13 circumstance warranting equitable tolling.”), cert. denied, 558 U.S. 897 (2009); 14 Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (pro se petitioner’s lack of 15 legal sophistication not by itself extraordinary circumstance warranting equitable 16 tolling). 17 Petitioner also cites to the alleged lack of notes from his trial attorney and 18 others as a basis for tolling. (Motion to Reconsider at 4, 10). While the denial of 19 access to legal materials may in some circumstances entitle a habeas petitioner to 20 equitable tolling (see Lott v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ELLERY DENNIS THOMAS, ) Case No. 5:19-cv-00850-JAK-JC 11 ) ) 12 Petitioner, ) ) ORDER ACCEPTING FINDINGS, 13 v. ) CONCLUSIONS, AND ) RECOMMENDATIONS OF 14 MADDEN, Warden, et al., ) UNITED STATES MAGISTRATE ) JUDGE 15 ) Respondents. ) 16 ________________________________ 17 I. SUMMARY 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of 19 Habeas Corpus (“Petition”) and accompanying documents, the Motion to Dismiss 20 the Petition and supporting documents, the October 28, 2019 original Report and 21 Recommendation of United States Magistrate Judge (“Original R&R”), petitioner’s 22 late-filed Response to the Motion to Dismiss which the Court received after its 23 issuance of the Original R&R and which contains requests for discovery and 24 related tolling, a stay, and the appointment of counsel (Docket No. 21), the 25 December 4, 2019 Superseding Report and Recommendation of United States 26 Magistrate Judge (“Superseding R&R”), petitioner’s Motion to Reconsider 27 (Docket No. 22), which the Court received after its issuance of the Superseding 28 R&R and which appears to seek reconsideration of/to object to the Original R&R, 1 and all of the records herein. Although petitioner has not filed objections to the 2 Superseding R&R, the Court construes the Motion to Reconsider to constitute 3 objections thereto. 4 The Court has made a de novo determination of those portions of the 5 Superseding Report and Recommendation to which objection is made. The Court 6 concurs with and accepts the findings, conclusions, and recommendations of the 7 United States Magistrate Judge, denies the Motion to Reconsider/overrules 8 petitioner’s objections, and denies the requests contained within petitioner’s 9 Response to the Motion to Dismiss. Although the Court has considered and 10 overruled all of petitioner’s objections and requests, the Court further addresses 11 certain of petitioner’s objections and requests below. 12 II. DISCUSSION 13 A. Petitioner Has Not Shown He Is Entitled to a Delayed Accrual 14 Date for the Statute of Limitations or to Equitable Tolling 15 Petitioner asserts that there are “many particulars [he] did not know at trial,” 16 e.g., defense counsel did not interview petitioner’s family which “may have 17 changed the outcome and verdict of trial,” and defense counsel told petitioner that 18 California was a “one party” state when it is a “two party” state. (Motion to 19 Reconsider at 4-5, 10). To the extent petitioner is arguing for a later accrual date 20 for the statute of limitations under 28 U.S.C. § 2244(d)(1)(D), he has not shown 21 entitlement to a later date. The claims petitioner has raised in the Petition were 22 raised with the state courts on direct appeal and predicated upon events that 23 occurred at trial. 24 Petitioner also asserts that the Petition should not be considered time-barred 25 because of his confinement in prison and the special restrictions that incarceration 26 imposes. (Motion to Reconsider at 3). Petitioner generally cites to lockdowns on a 27 Level III yard, his transfer at some unknown time from one prison to another for 28 two weeks, and his lack of an attorney or legal assistance as reasons for his failure 2 1 to timely file the Petition. (Motion to Reconsider at 3, 10-11). These alleged 2 impediments do not entitle petitioner to tolling of the statute of limitations. 3 The asserted prison lock-downs and prison transfer do not warrant equitable 4 tolling because they do not constitute “extraordinary circumstances” that stood in 5 petitioner’s way. Holland v. Florida, 560 U.S. 631, 649 (2010). Despite the 6 alleged lockdowns and prison transfer, petitioner was able to file pro se one state 7 habeas petition with the San Bernardino County Superior Court within the statute 8 of limitations period. (Lodged Doc. 4). There is no suggestion that any lockdowns 9 or the prison transfer prevented petitioner from filing timely the instant Petition – 10 which simply repeats the claims raised by petitioner’s counsel on direct review. 11 A petitioner who is denied access to his legal files while in administrative 12 segregation or during a prison transfer may be entitled to equitable tolling so long 13 as he is diligently pursuing his claims. See Espinoza-Matthews v. California, 432 14 F.3d 1021, 1027-28 (9th Cir. 2005) (petitioner denied access to legal materials 15 while in administrative segregation entitled to equitable tolling); Lott v. Mueller, 16 304 F.3d 918, 924-25 (9th Cir. 2002) (petitioner denied access to legal files during 17 transfer per prison policy entitled petitioner to equitable tolling). Here, petitioner 18 has not alleged if or when he may have been without his legal materials, or 19 demonstrated that he was reasonably diligent in pursuing his claims during the 20 running of the statute of limitations. See Rhodes v. Kramer, 451 Fed. Appx. 697, 21 698 (9th Cir. 2011) (limited library access and lockdowns did not merit equitable 22 tolling); Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (per curiam) (pro 23 se status, deficient prison library, and reliance on helpers who were transferred or 24 too busy to assist him did not warrant equitable tolling; inmate failed to 25 demonstrate diligence in accessing prison law library when inmate failed to make 26 any specific allegation as to what he did to pursue his claims and complain about 27 situation) (citation omitted); Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) 28 (ordinary prison limitations on a petitioner’s access to the law library do not 3 1 constitute extraordinary circumstances); Miller v. Marr, 141 F.3d 976, 978 (10th 2 Cir.) (denying equitable tolling when petitioner “provided no specificity regarding 3 the alleged lack of access and the steps he took to diligently pursue his federal 4 claims.”), cert. denied, 525 U.S. 891 (1998); Giraldes v. Ramirez-Palmer, 1998 5 WL 775085, *2 (N.D. Cal. Nov. 3, 1998) (lockdown expected, albeit 6 unpredictable, part of prison life and not “extraordinary circumstance” that would 7 justify equitable tolling where petitioner made no showing that it actually impeded 8 his efforts to prepare petition, and had been able to file three state petitions during 9 period he allegedly was hindered in his effort to file the federal petition). 10 Petitioner’s lay status/ignorance of the law is not itself a basis for equitable 11 tolling. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir.) 12 (“[A] pro se petitioner’s confusion or ignorance of the law is not, itself, a 13 circumstance warranting equitable tolling.”), cert. denied, 558 U.S. 897 (2009); 14 Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (pro se petitioner’s lack of 15 legal sophistication not by itself extraordinary circumstance warranting equitable 16 tolling). 17 Petitioner also cites to the alleged lack of notes from his trial attorney and 18 others as a basis for tolling. (Motion to Reconsider at 4, 10). While the denial of 19 access to legal materials may in some circumstances entitle a habeas petitioner to 20 equitable tolling (see Lott v. Mueller, 304 F.3d at 924), petitioner fails to 21 demonstrate that his asserted lack of access to notes from his trial attorney and 22 others caused him to file a late Petition or that it otherwise entitles him to equitable 23 tolling. Again, the Petition merely presents the claims petitioner’s counsel raised 24 on direct review, which petitioner could have raised and did raise without the notes 25 he alleges he is missing. See Waldron-Ramsey, 556 F.3d at 1014 (no equitable 26 tolling where petitioner did not have state court records; diligent petitioner could 27 have prepared basic form habeas petition and filed it to satisfy AEDPA deadline or 28 at least filed it sooner); Ford v. Pliler, 590 F.3d 782, 790 (9th Cir. 2009) (lack of 4 1 legal files does not entitle a petitioner to equitable tolling when the petitioner 2 knows the factual bases of his claims), cert. denied, 562 U.S. 843 (2010). 3 Finally, petitioner also cites to a purported 14-day delay from the California 4 Court of Appeal’s order on direct appeal directing the Superior Court to prepare a 5 new sentencing order as a basis for tolling. (Motion to Reconsider at 3 6 (referencing Lodged Doc. 1 at 32-33)). The Court of Appeal’s order and any 7 related 14-day delay predate the time petitioner’s conviction became final and 8 accordingly do not entitle petitioner to any tolling of the statute of limitations. 9 B. Petitioner Has Not Made a Credible Claim of Actual Innocence 10 Petitioner makes various allegations which could be construed as arguments 11 that he is actually innocent of the crimes of which he was convicted. (Motion to 12 Reconsider at 5-11). Once again, the Court does not find that any of petitioner’s 13 bald, self-serving allegations credibly suggest that he is actually innocent of his 14 crimes, and do not provide the kind of new reliable evidence not introduced at trial 15 that is required for this Court to hear his untimely claims. Schlup v. Delo, 513 16 U.S. 298, 329 (1995). 17 C. Petitioner Is Not Entitled to a Stay of These Proceedings to 18 Exhaust Any Unexhausted Claims 19 To the extent petitioner is again asking for a stay of these proceedings so 20 that he may exhaust new claims in state courts (see Motion for Reconsideration at 21 5-12 (including new claims/arguments not raised in the Petition)), petitioner has 22 not shown good cause for failing to exhaust his unexhausted claims, or that his 23 claims are not plainly meritless, or that such claims are not themselves time-barred 24 so as to warrant a stay. See Superseding Report and Recommendation at 11-13 25 (discussing petitioner’s burden in showing entitlement to a stay to exhaust 26 unexhausted claims). 27 III. ORDERS 28 IT IS HEREBY ORDERED that petitioner’s requests for discovery and 5 1 || related tolling, a stay, and the appointment of counsel are denied, the Motion to 2 || Dismiss the Petition is granted, the Motion to Reconsider is denied, and the 3 || Petition and this action are dismissed with prejudice because petitioner’s claims are 4 || time-barred. 5 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and 6 || the Judgment herein on petitioner and counsel for respondents. 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: February 13, 2020 10 11 C} hr 12 13 John A.Kronstadt SSCS 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28