George Bravo v. M.D. Biter, Warden

Opinion

11 GEORGE BRAVO, Case No. 2:16-cv-04150-JLS-KES

12 Petitioner, FINAL REPORT AND 13 v. RECOMMENDATION OF UNITED

14 M.D. BITER, Warden, STATES MAGISTRATE JUDGE

15 Respondent.

17 This Final Report and Recommendation is submitted to the Honorable 18 Josephine L. Staton, United States District Judge, pursuant to the provisions of 28 19 U.S.C. § 636 and General Order 05-07 of the United States District Courts for the 20 Central District of California. 21 I. 22 PROCEEDINGS 23 On January 1, 2017, Respondent moved to dismiss Petitioner’s First 24 Amended Petition for Writ of Habeas Corpus by a Person in State Custody pursuant 25 to 28 U.S.C. § 2254 (Dkt. 8 or “FAP”) as time-barred and, alternatively, 26 unexhausted. (Dkt. 25.) 27 Petitioner opposed the motion (Dkt. 37) and Respondent filed a reply (Dkt. 28 1 43). 2 In November 2017, the undersigned issued a Report and Recommendation 3 recommending that the FAP be dismissed as untimely. (Dkt. 45.) In January 2018, 4 Petitioner filed objections to the Report and Recommendation. (Dkt. 48 or 5 “Objections”.) The Court now issues this Final Report and Recommendation to 6 address Petitioner’s Objections. (See notes 2, 3, and 5 below.) 7 For the reasons discussed below, the Court recommends GRANTING 8 Respondent’s motion and DISMISSING the FAP as untimely. 9 II. 11 A. Conviction and Appeal. 12 In 2013, Petition was convicted of two counts of gang-related conspiracy to 13 commit murder. (Dkt. 8 at 2.) Per the evidence presented at trial summarized by 14 the California Court of Appeal, the Los Angeles County Sheriff’s Department 15 obtained a series of wiretaps to investigate suspected members of the Mexican 16 Mafia. (Lodged Document [“LD”] 7, Dkt. 26-17 at 2); People v. Bravo, 2014 Cal. 17 App. Unpub. LEXIS 7203 (Oct. 8, 2014). Detectives listened to approximately 18 12,000 telephone calls, including calls in which Petitioner communicated with 19 others about plans to murder two rival gang members in retaliation for a 20 kidnapping. Id. 21 On direct appeal, Petitioner argued that the evidence was insufficient to 22 support his convictions because the content of the recorded calls was ambiguous, 23 and that the sealing of facts supporting the wiretaps violated his constitutional 24 rights. Id. The Court of Appeal affirmed his convictions. Id. 25 On December 17, 2014, the California Supreme Court denied his petition for 26 review. (LD 9, Dkt. 26-19); People v. Bravo, 2014 Cal. LEXIS 11338, at *1 (Dec. 27 17, 2014). Petitioner’s appellate attorney sent Petitioner a letter dated December 28 24, 2014, informing him that Petitioner could file a federal petition for writ of 1 habeas corpus within one year and 90 days of the California Supreme Court’s 2 denial. (See FAP at 35.) 3 B. State Habeas Proceedings. 4 About ten months later on October 22, 2015, Petitioner filed a petition for 5 writ of habeas corpus in the California Court of Appeal, which he signed on 6 October 15, 2015, and submitted to the prison mailroom on October 19, 2015. (LD 7 10, Dkt. 26-20 at 1, 6; LD 14 [Hancock Decl. explaining that mail log entries are 8 made “at or near the time the inmate submits the legal mail for delivery”], Dkt. 26- 9 24 at 1, 3 [mail log1].) The California Court of Appeal summarily denied the 10 petition on October 28, 2015. (LD 11, Dkt. 26-21.) 11 About nine months later on July 18, 2016, Petitioner filed a habeas corpus 12 petition in the California Supreme Court, which he signed on July 11, 2016 and 13 submitted to the prison mailroom on July 13, 2016. (LD 12, Dkt. 26-22 at 11 14 [signature date]; LD 13, Dkt. 26-23 [filing date]; LD 14, Dkt. 26-24 at 3 [mail log].) 15 On September 14, 2016, the California Supreme Court denied the petition, 16 citing People v. Duvall, 9 Cal. 4th 464, 474 (1995), and In re Swain, 34 Cal. 2d 17 300, 304 (1949). (LD 13, Dkt. 26-23 at 1.) 18 C. Federal Habeas Proceedings. 19 On May 9, 2016, Petitioner mailed a one-page letter to the Court explaining 20 that he had “recently exhausted [his] state appeal and [was] working on [his] 21 federal.” (Case no. 2:16-cv-03315-JLS-KES, Dkt. 1 [postmark date].) He 22 explained that he had “recently found out about the time restraints” and wondered 23 “if there is any way that [he] may be granted an extension of time ….” (Id.) 24 Because Petitioner had not yet filed a federal habeas petition, the Court dismissed 25 1 The mail log also shows that Petitioner mailed something to the California 26 Court of Appeal on October 5, 2015, and received a response on October 15, 2015. 27 Whatever this was, the Court of Appeal’s online records do not list it under Petitioner’s name. 28 1 the matter for lack of any case or controversy. (Id., Dkt. 3.) The Court explained 2 that federal habeas petitions are generally subject to a one-year filing deadline, but 3 that deadline may be extended by statutory or equitable tolling. (Id.) 4 Petitioner next filed a habeas corpus petition under § 2241 in this Court on 5 June 10, 2016. (Dkt. 1 at 1.) He did not provide a signature date, but the petition 6 was submitted to the prison mailroom and postmarked on June 7, 2016. (Dkt. 1-3 7 at 31; LD 14, Dkt. 26-24 at 3.) The Court dismissed the petition with leave to 8 amend because it should have been filed under § 2254 and it suffered from other 9 deficiencies. (Dkt. 4.) Petitioner filed his FAP on July 18, 2016. (Dkt. 8 at 1.) It 10 was signed on July 11, 2016, and delivered to the prison mail room on July 13, 11 2016. (Id. at 8; LD 14, Dkt. 26-24 at 3.) 12 Upon receiving the FAP, the Court issued an order to show cause (“OSC”) 13 why it should not be dismissed as unexhausted. (Dkt. 10.) The Court noted that 14 Petitioner appeared to have an exhaustion petition pending with the California 15 Supreme Court, but it was unclear if the claims in the FAP were included in that 16 petition. (Id. at 3.) The Court instructed Petitioner to respond to the OSC by either 17 explaining why his claims were exhausted or moving for a stay. (Id. at 3-4.) 18 On August 18, 2016, Petitioner moved for a stay under Rhines v. Weber, 544 19 U.S. 269 (2005). (Dkt. 11.) Because his cursory briefing did not address the “good 20 cause” standard, the Court invited him to submit supplemental briefing. (Dkt. 12.) 21 Petitioner filed supplemental briefing on September 19, 2016. (Dkt. 15.) Petitioner 22 asserted that he had “recently obtained evidence” to support his unexhausted 23 ineffective assistance of counsel (“IAC”) claim, i.e., a one-page declaration that his 24 trial counsel, Omar Bakari, filed in the Los Angeles Superior Court on September 25 28, 2012. (Id. at 5.) Mr. Bakari declared that he sought to introduce “numerous 26 recorded telephone calls” at trial, but his preparation to introduce the calls was 27 inadequate. (Id.) Petitioner did not explain when he received the declaration, but 28 stated that he had discovered it “recently” when “the California Appellate Project 1 sent some legal paperwork.” 2 (Id. at 2.) He did not present any “good cause” 2 arguments for failing to exhaust any other claims earlier. 3 After receiving this motion and prior to receiving any opposition, the Court 4 learned from online records that the California Supreme Court denied Petitioner’s 5 petition on September 14, 2016. (LD 13.) On September 21, 2016, the Court 6 denied Petitioner’s motion for a Rhines stay without prejudice to its reconsideration 7 or renewal if needed to establish the timeliness of any claims. (Dkt. 17.) The Court 8 directed Respondent to respond to the FAP. (Dkt. 16.) 9 Respondent filed the instant motion to dismiss. (Dkt. 25.) Respondent 10 argues that (1) the FAP is time-barred under the one-year limitations period set 11 forth in 28 U.S.C. § 2244(d), and (2) alternatively, all of Petitioner’s claims remain 12 unexhausted, because a denial citing Swain and Duval does not constitute 13 exhaustion. (Id. at 2.)

14 2 Mr. Bakari’s declaration was part of the clerk’s transcript (“CT”) from 15 Petitioner’s trial. (See Dkt. 26-5 at 92; 5 CT 1088.) Petitioner moved pro per for a new trial before he was sentenced. (Id. at 116, 131; 5 CT 1112, 1127.) In his 16 motion, he claimed IAC because “counsel was assigned this case over four years 17 ago yet he was typing up transcripts of telephonic conversations while the government was presenting their case and the day before he was intending to 18 present this evidence to the jury.” (Id. at 119; 5 CT 1115.) The transcripts 19 contained inaccuracies and bold type. (Id.) Thus, Petitioner’s motion for a new trial references the same lack of adequate preparation described in Mr. Bakari’s 20 declaration. In February 2013, Petitioner wrote a complaint to the state bar 21 expressly referencing Mr. Bakari’s “self-declared ineffective assistance.” (Dkt. 1-1 at 10; Dkt. 1-3 at 3.) Petitioner, therefore, cannot show that he only recently 22 discovered Mr. Bakari’s declaration. 23 In his Objections, Petitioner claims for the first time that shortly before trial, 24 Mr. Bakari told Petitioner that he could not find the telephone transcripts he was 25 “supposed to” use and “changed his defense at the last minute.” Petitioner claims that the omitted transcripts could prove his innocence. (Objections at 2.) Petitioner 26 attaches various pages of apparent telephone transcripts, none of which suggest his 27 innocence. (See id. at 13-29.) Based on his own allegations, Petitioner knew of these alleged transcripts at the time of trial. 28 3 A. The AEDPA Statute of Limitations. 4 The Petition was filed after the enactment of the Antiterrorism and Effective 5 Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241, et seq. The AEDPA 6 imposes a one-year limitations period for state prisoners to file a federal petition for 7 writ of habeas corpus. 28 U.S.C. § 2244(d)(1). That section provides in pertinent 8 part: 9 A 1-year period of limitation shall apply to an application for a writ of 10 habeas corpus by a person in custody pursuant to the judgment of a 11 State court. The limitation period shall run from the latest of: 12 (A) the date on which the judgment became final by the 13 conclusion of direct review or the expiration of the time for seeking 14 such review[.] 15 28 U.S.C. § 2244(d)(1)(A). 16 Here, the California Supreme Court denied Petitioner’s petition for review on 17 December 17, 2014, and there is no indication that Petitioner filed a petition for 18 writ of certiorari in the United States Supreme Court. (LD 8.) Consequently, his 19 conviction became final ninety days later, on March 14, 2015. See Bowen v. Roe, 20 188 F.3d 1157, 1158-59 (9th Cir. 1999). Therefore, the last date for Petitioner to 21 file his federal petition was March 14, 2016, absent sufficient statutory or equitable 22 tolling.3

23 3 There is also an equitable exception to the ADEPA’s statute of limitations 24 for prisoners who present new, reliable evidence of actual innocence. Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (citing Schlup v. Delo, 513 U.S. 298 25 (1995)). Specifically, a petitioner must show “that it is more likely than not that no 26 reasonable juror would have convicted him in light of the new evidence.” Lee, 653 F.3d at 938 (quoting Schlup, 513 U.S. at 327). Petitioner does not set forth any 27 new evidence or legal arguments attempting to satisfy this exception, either in the 28 FAP or in his Objections. 1 1. Statutory Tolling. 2 The AEDPA’s statute of limitations is “statutorily tolled” while a “properly 3 filed application for State post-conviction or other collateral review with respect to 4 the pertinent judgment or claim is pending….” 28 U.S.C. § 2244(d)(2). Because 5 Petitioner’s habeas petition in the California Court of Appeal was filed before 6 March 14, 2016, and it was denied without citation to any authority indicating it 7 was not properly filed, Petitioner is entitled to statutory tolling for the days when it 8 was pending. 9 Petitioner argues that he should receive tolling for this petition starting on 10 October 15, 2015, i.e., the date when he signed it, not October 19, 2015, i.e., the 11 date when it was mailed per his prison mail log. (Dkt. 37 at 8.) Under the prison 12 mailbox rule, a prisoner’s pro se habeas petition is “deemed filed when he hands it 13 over to prison authorities for mailing to the relevant court.” Campbell v. Henry, 14 614 F.3d 1056, 1058-1059 (9th Cir. 2010) (citation omitted). The prisoner is 15 presumed to have handed his petition to prison authorities on the day it is signed. 16 Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (“When a prisoner gives 17 prison authorities a habeas petition or other pleading to mail to court, the court 18 deems the petition constructively ‘filed’ on the date it is signed.”). Legal 19 presumptions, however, can be rebutted by contrary evidence. Lewis v. Mitchell, 20 173 F. Supp. 2d 1057, 1059 n. 1 (C.D. Cal. 2001) (stating that delivery for purposes 21 of constructive filing under prison mailbox rule is presumed to be on date of 22 signing petition “absent evidence to the contrary”). For example, a later-dated 23 proof of service declaration would be contrary evidence. Bosley v. Valasco, 2016 24 U.S. Dist. LEXIS 56842 at *11 (E.D. Cal. Apr. 27, 2016) (“[A] document is 25 deemed served or filed on the date a prisoner signs the document (or signs the proof 26 of service, if later) and gives it to prison officials for mailing.”). A later-dated note 27 to the clerk in the same envelope would also be evidence that the petitioner still had 28 the materials in his possession as of the date of the note. See Knox v. Soto, 2016 1 U.S. Dist. LEXIS 88983, at *6 (C.D. Cal. May 6, 2016). 2 Respondent urges the Court to consider the date the petition was logged on 3 the prison’s mail log as its constructive filing date. Cases discussing the prison 4 mailbox rule acknowledge that mail logs generally reliably establish when materials 5 were given to staff for mailing. Houston v. Lack, 487 U.S. 266, 275 (1988) 6 (“Because reference to prison mail logs will generally be a straightforward inquiry, 7 making filing turn on the date the pro se prisoner delivers the notice to prison 8 authorities for mailing is a bright-line rule, not an uncertain one.”). 9 Here, Respondent provided a declaration that staff members log prisoner 10 mail “at or near the time the inmate submits the legal mail for delivery.” (LD 14, 11 Dkt. 26-24 at 1.) It is unclear whether “near the time” means within an hour or two 12 or within a day or two. Ultimately, whether Petitioner receives 10 or 14 days of 13 statutory tolling for his October 2015 state petition does not change the statute of 14 limitations analysis, so the Court will give Petitioner the benefit of the four 15 additional days. With that, Petitioner’s state habeas filings are summarized in the 16 chart below: 17 Constructive Filing Date Denial Date Pending Days Gap Days 18 Appellate 10/15/15 10/28/15 14 n/a 19 Supreme 07/13/16 09/14/16 64 258 20 Applications for state post-conviction relief filed in an upward progression 21 may be deemed “pending” under § 2244(d)(2) “even during the intervals between 22 the denial of a petition by one court and the filing of a new petition at the next level, 23 if there is not undue delay.” Biggs v. Duncan, 339 F.3d 1045, 1046 (9th Cir. 2003). 24 Such tolling between state habeas petitions is commonly referred to as “interval” or 25 “gap” tolling. While “undue delay” has not been precisely defined, federal courts 26 within the Ninth Circuit frequently deny § 2244(d)(2) gap tolling when there are 27 unexplained and/or inadequately explained intervals between state post-conviction 28 1 filings that exceed 60 days. See, e.g., Velasquez v. Kirkland, 639 F.3d 964, 968 2 (9th Cir. 2011) (inadequately justified 80-day and 91-day delays between state 3 habeas filings were held to be unreasonable and untimely under California law and 4 to preclude interval tolling for those time gaps). As a result, Petitioner is not 5 entitled to statutory tolling for the 258-day gap between his two state filings. 6 Petitioner is also not entitled to statutory tolling for the pendency of his 7 California Supreme Court habeas petition. It was filed after his AEDPA statute of 8 limitations expired on March 28, 2016 (i.e., March 14, 2016, plus 14 days). 9 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003), cert. denied, 540 U.S. 10 924 (2003) (holding that statutory tolling “does not permit the reinitiation of 11 [AEDPA’s] limitations period that has ended before the state petition was filed”). 12 Thus, the last day for Petitioner to file his federal petition was March 28, 13 2016. Whether compared to the June 2016 filing date of the original petition or the 14 July 2016 filing date of the FAP, Petitioner’s federal filing was untimely absent 15 equitable tolling.4 16 2. Equitable Tolling. 17 The AEDPA statute of limitations is subject to equitable tolling in 18 appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). To qualify, a 19 petitioner must demonstrate: (1) that he has been pursuing his rights diligently, and 20 (2) that some “extraordinary circumstance” stood in his way that prevented him 21 from timely filing. Id. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 22 (2005)). The “extraordinary circumstance” requirement “suggests that an external 23 force must cause the untimeliness, rather than … merely oversight, miscalculation 24 or negligence on [the petitioner’s] part, all of which would preclude the application 25 4 The Court need not address whether the FAP relates back to the original 26 Petition if the original Petition was untimely. Similarly, the Court need not 27 determine whether Petitioner qualifies for a Rhines stay if the original Petition was untimely. 28 1 of equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2 2009) (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008)). The 3 petitioner must additionally show that the extraordinary circumstances were the 4 cause of his untimeliness, and that the extraordinary circumstances made it 5 impossible to file a petition on time. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 6 2009). A litigant bears a heavy burden to establish that equitable tolling applies, 7 because “the threshold necessary to trigger equitable tolling [under AEDPA] is very 8 high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 9 1066 (9th Cir. 2002) (citation omitted). 10 Petitioner argues that he is entitled to equitable tolling from March 14, 2015 11 to October 15, 2015, and from October 28, 2015 to June 10, 2016, for a variety of 12 reasons, each of which is addressed below. (Dkt. 37 at 9, 12.) 13 a. Inadequate Law Library Access. 14 Petitioner argues that due to his gang-related convictions, when he entered 15 prison in 2013, his prison security classification subjected him to lockdowns for “a 16 large percentage” of his time. (Dkt. 37 at 1-2.) He was “lucky to get 4 hours every 17 two weeks” at the law library. (Id. at 2.) 18 From March 14, 2015 through the present, he has been housed at Kern 19 Valley State Prison. (Id. at 18, ¶ 1.) He had no access to the law library at Kern 20 for the first year, i.e., until March 15, 2016, because the library is small and 21 “priority is given to …inmates with verified deadlines.” (Id. at 2 and 24 [law 22 librarian confirmation that Petitioner first used law library in March 2016].) When 23 the Court of Appeal denied his habeas petition in October 2015, Petitioner did not 24 seek priority by telling staff that he needed to file an exhaustion petition promptly 25 with the California Supreme Court, because “Petitioner was not aware that he must 26 file a writ of habeas corpus in the California Supreme Court until another inmate 27 told him.” (Id. at 6.) 28 Petitioner contends that when he changed from a GLU [general legal user] to 1 a PLU [priority legal user] inmate, he received one law library session on March 2 15, 2016. (Id. at 3.) Petitioner does not explain why he changed from a GLU to a 3 PLU at that time or what legal matter(s) he worked on in March 2016. The March 4 session was followed by three law library sessions in the first half of July 2016. 5 (Id.) “Thereafter, due to court-ordered deadlines he was able to attend regularly.” 6 (Id.) 7 Petitioner lacked access to the law library between October 2015 and March 8 2016 because he did not know to request priority to complete his California 9 Supreme Court exhaustion petition. (Id. at 6.) This is not an extraordinary 10 circumstance beyond Petitioner’s control. See Ramirez, 571 F.3d at 998 (holding 11 “ordinary prison limitations” on access to law library and copier are not 12 extraordinary and did not make it impossible for petitioner to file timely petition); 13 Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (recognizing that lack of 14 access to library materials does not automatically entitle petitioner to equitable 15 tolling); United States v. Van Poyck, 980 F. Supp. 1108, 1111 (C.D. Cal. 1997) 16 (holding that several security lockdowns and lack of access to prison’s purportedly 17 small law library for unspecified number of days are not extraordinary 18 circumstances). 19 While Petitioner broadly states that he “repeatedly requested access to the 20 law library but was denied each time” (Dkt. 37 at 19, ¶ 10), he has failed to provide 21 the specific dates that he applied, reasons for the alleged denials, or copies of his 22 written requests to demonstrate that he made a diligent effort to obtain library 23 access. Again, based on Petitioner’s admissions that he did not know he needed to 24 file an exhaustion petition in the California Supreme Court without unreasonable 25 delay (id. at 6) and his claim that he did not know his AEDPA filing deadline (case 26 no. 2:16-cv-03315-JLS-KES), it is clear that his failure to advise prison staff of his 27 filing deadline(s) caused him not to receive law library priority. 28 Moreover, Petitioner admits that he received law library access on March 15, 1 2016. This was prior to the expiration of his AEDPA deadline on March 28, 2016. 2 Petitioner should have been aware of his AEDPA deadline, or at least that time was 3 of the essence, given his appellate attorney’s December 2014 letter. Thus, on 4 March 15, 2016, he could and should have prepared and timely filed his federal 5 petition along with a stay motion. Thus, the cause of Petitioner’s tardiness was his 6 lack of diligence, not his lack of access to the law library. 7 b. Lack of Education. 8 Petitioner contends that he is “semi-illiterate” because he dropped out of 9 school in middle school. (Dkt. 37 at 3.) He is also “computer illiterate,” and the 10 law library’s research materials are computerized. (Id. at 4.) At the same time, 11 however, Petitioner took classes towards his General Educational Development 12 (“GED”) in 2015 and 2016. (Id. at 3.) “Petitioner taught himself to read and write 13 better and after years of study and work, Petitioner received his GED in February 14 2017.” (Id.) 15 It is well settled that a lack of legal training or education does not present a 16 rare and exceptional circumstance justifying equitable tolling. See Ford v. Pliler, 17 590 F.3d 782, 789 (9th Cir. 2009) (observing that equitable tolling “standard has 18 never been satisfied by a petitioner’s confusion or ignorance of the law alone”); 19 Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner’s lack 20 of legal sophistication is not, by itself, an extraordinary circumstance warranting 21 equitable tolling”); Payne v. Valenzuela, 2016 WL 304294, at *1 (C.D. Cal. Jan. 22 25, 2016) (“petitioner’s lack of legal sophistication and limited ability to read and 23 write” are not extraordinary circumstances for equitable tolling). 24 c. Mental Impairments. 25 In Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), the Ninth Circuit held that 26 proof of a severe mental impairment can qualify for equitable tolling where the 27 petitioner meets the following two-part test: 28 (1) First, a petitioner must show his [or her] mental impairment was 1 an “extraordinary circumstance” beyond his [or her] control, by 2 demonstrating the impairment was so severe that either 3 (a) petitioner was unable rationally or factually to personally 4 understand the need to timely file, or 5 (b) petitioner’s mental state rendered him [or her] unable 6 personally to prepare a habeas petition and effectuate its filing. 7 (2) Second, the petitioner must show diligence in pursuing the claims 8 to the extent he [or she] could understand them, but that the mental 9 impairment made it impossible to meet the filing deadline under the 10 totality of the circumstances, including reasonably available access to 11 assistance. 12 Id. at 1099-1100 (citations omitted); see also Stancle v. Clay, 692 F.3d 948, 952 13 (9th Cir. 2012) (illiterate prisoner did not satisfy Bills test where assistance from 14 another inmate was available). 15 Here, Petitioner claims two sources of mental impairment: a learning 16 disability and side effects from medication. Regarding his learning disability, 17 Petitioner explains that he has “suffered from a severe learning disability his whole 18 life.” (Dkt. 37 at 3.) This disability makes it “extremely difficult to read, 19 comprehend and understand information.” (Id.) 20 Regarding medication side effects, Petitioner suffers from “severe 21 hypertension” and is on “several medications” to try to control his blood pressure. 22 (Id. at 5.) “However, many of these medications have severe side effects.” (Id.) 23 Petitioner states, “during the relevant time periods in question, Petitioner was on 24 medication that caused him extreme fatigue, fogginess in thought and unable to 25 concentrate and to fall asleep within 1 hour of taking it.” (Id.) He would sleep for 26 several hours then need to take his next prescribed dose soon after waking. (Id.) 27 Petitioner complained to his doctor, but “it took months to get switched to other 28 medications many with similar side effects.” (Id.) Petitioner contends that this 1 “severely interfered with Petitioner’s ability to prepare his writ petition(s).” (Id.) 2 Petitioner says that he requested his medical records, but he did not receive them in 3 time to attach to his opposition. (Id.) Petitioner did not identify the names of any 4 of his medications, when he took them, or when they changed.5 5 Neither Petitioner’s learning disability nor the side effects of his blood 6 pressure medications prevented Petitioner from filing his federal petition on time. 7 After Petitioner’s trial but before sentencing, in May 2012, Petitioner executed a 8 Faretta waiver and began to represent himself.6 (Dkt. 26-5 at 70; 5 CT 1066.) In 9 executing the waiver form, Petitioner represented that he could read and write, that 10 he had read and understood the three-page form, and that the highest level of 11 education he had reached was eleventh grade, not middle school. (Id.) Thereafter, 12 Petitioner filed a motion for a new trial and a motion for transcripts. (Dkt. 26-5 at 13 76, 97; 5 CT 1072, 1093.) In January 2013, he filed lengthy written objections to 14 various trial proceedings. (Id. at 173; 5 CT 1169.) In February 2013, he filed an 15 “information brief” explaining the post-trial investigations he undertook to support 16 his motion for a new trial. (Id. at 185; 5 CT 1181.) In April 2013, he filed a notice 17 of appeal. (Id. at 199; 5 CT 1210.) 18 Petitioner was represented by an attorney on direct appeal. (LD 5, 8.) When 19 his appeal concluded, he understood that he could pursue habeas relief, and in

20 5 In his Objections, Petitioner attaches medical records from 2015. 21 (Objections at 33-64.) None of the records mention any side effects from Petitioner’s medication; in fact, a record from May 4, 2015, states, “[Petitioner] 22 doing well, no problem . . . He denied any dizziness or syncope or palpitation.” (Id. 23 at 64.) Petitioner also claims that he was admitted “3 times to an outside hospital with hepatoma” which made his legs swell and caused him pain while walking, and 24 attaches related records. (Id. at 3.) Despite these ailments and hospital visits, 25 Petitioner was able to pursue a number of activities described herein that indicate that he should have understood the need and been able to file a timely federal 26 petition before March 28, 2016. 27 6 Faretta v. California, 422 U.S. 806 (1975). 28 1 March 2015, he attempted to retain a lawyer to do that. (Dkt. 37 at 4.) Without 2 assistance from counsel, albeit sometimes with assistance from other inmates, he 3 later filed (1) state habeas petitions in October 2015 and July 2016, (2) a request to 4 extend his AEDPA deadline in May 2016 (case no. 2:16-cv-03315-JLS-KES), 5 (3) his initial Petition in June 2016, and (4) various other documents in this case in 6 2016 and 2017 (e.g., Dkts. 5, 6, 8, 11, 29, 31, 33, 35, 37). He was also able to 7 obtain his GED, correspond with the California Appellate Project, and request 8 information from the law librarian to support his claims. (Dkt. 15 at 2; Dkt. 37 at 3, 9 24.) Thus, whatever ill effects Petitioner’s life-long learning disability or blood 10 pressure medications may have caused him, they did not prevent him from 11 understanding the need to file a timely federal petition or the ability to do so prior 12 to March 28, 2016. 13 d. Attorney Abandonment. 14 After March 15, 2015, Petitioner contacted Anthony Esquivel “seeking 15 representation for [his] state and federal petitions.” (Dkt. 37 at 19, ¶ 4.) In May 16 2015, Mr. Esquivel “responded that he would represent [Petitioner] or have 17 someone in his law office” undertake the representation. (Id. at 4, 19, ¶ 4.) “Mr. 18 Esquivel then abandoned Petitioner, never did any legal work for Petitioner, file 19 any documents in court for Petitioner, and refused to communicate with him.” (Id. 20 at 5.) Petitioner declares that both he and his family members attempted to contact 21 Mr. Esquivel several times, but he never responded. (Id.) 22 Petitioner has not provided copies of any correspondence between himself 23 and Mr. Esquivel, a business card, the name of the law firm, or any explanation of 24 how he received contact information for Mr. Esquivel. The California Bar’s 25 website does not list any attorney currently licensed to practice law in California 26 named Anthony Esquivel (or Esquival). 27 Even assuming that Petitioner retained Mr. Esquivel to file his state and 28 federal habeas petitions in May 2015, Petitioner knew that Mr. Esquivel was not 1 performing work on his behalf before October 15, 2015, the date when Petitioner 2 filed a pro se petition with the California Court of Appeal. (LD 10.) Petitioner 3 failed to file a subsequent pro se exhaustion petition with the California Supreme 4 Court because he did not realize that he needed to do so, not because he expected 5 his attorney to do so. (Dkt. 37 at 6.) Attorney abandonment, therefore, did not 6 cause Petitioner to miss his AEDPA filing deadline. 7 e. Lack of Access to Legal Files. 8 Petitioner contends that in May 2015, he sent his entire legal file to Mr. 9 Esquivel “minus some few duplicates.” (Dkt. 37 at 19, ¶ 4.) He never saw his file 10 again. (Id., ¶ 5.) 11 Nevertheless, Petitioner managed to file a state habeas petition in October 12 2015 without his full legal file. That petition included relevant pages from the 13 clerk’s transcript (Dkt. 26-20 at 7-8) and the reporter’s transcript (id. at 9). 14 Moreover, when asked in the form to explain any filing delay, Petitioner said, 15 “Have no access to the discovery and trial counsel claimed to have lost this 16 evidence.” (Dkt. 26-20 at 6.) Petitioner said nothing about Mr. Esquivel or his 17 purported lack of access to his legal files because he had sent them to Mr. Esquivel. 18 For these reasons, the Court finds that lack of access to his legal files did not 19 cause Petitioner to miss his AEDPA filing deadline. 20 IV. 22 Having failed to show entitlement to any equitable tolling, Petitioner’s 23 original federal Petition filed in June 2016 was filed after his AEDPA deadline 24 expired in March 2016. Having found Petitioner’s claims time-barred, the Court 25 declines to consider Respondent’s alternative argument that they are also 26 unexhausted. 27 // 28 // 1 IT IS THEREFORE RECOMMENDED that the District Court issue an 2 | Order: (1) approving and accepting this Final Report and Recommendation; 3 || (2) dismissing the FAP with prejudice as untimely. 4 5 | DATED: February 6, 2018 af & KAREN E. SCOTT 7 UNITED STATES MAGISTRATE JUDGE 8 10 Reports and Recommendations are not appealable to the Court of Appeals, 11 but are subject to the right of any party to timely file Objections as provided in the 2 Federal Rules of Civil Procedure and the instructions attached to this Report. This 3 Report and any Objections will be reviewed by the District Judge whose initials 14 | appear in the case docket number. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17