1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KATHRYN ANN ELLIS, Case No. 1:19-cv-200-NONE-HBK (HC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS PETITION AS UNTIMELY1
14 WARDEN OF CENTRAL CALIFORNIA WOMEN’S FACILITY, FOURTEEN-DAY OBJECTION PERIOD 15 Defendant. (Doc. No. 30) 16 17 18 Petitioner Kathryn Ann Ellis (“Petitioner” or “Ellis”), through counsel, initiated this action 19 by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 12, 2019. 20 (Doc. No. 1). In response, Respondent filed a renewed motion to dismiss the petition as untimely 21 and an answer to the petition2 incorporating a renewed motion to dismiss the petition as 22 untimely.3 (Doc. Nos. 30, 37). Petitioner addresses the petition’s timeliness in both her 23 opposition to the Respondent’s motion to dismiss and in her reply to Respondent’s answer. (Doc. 24 Nos. 31, 40). For the reasons stated below, the undersigned recommends the District Court grant 25 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 26 (E.D. Cal. 2019). 2 The Court ordered Respondent to file an answer to include briefing on the calculation of the statutory of 27 limitations under Robinson v. Lewis, No. S228136 (Cal. July 20, 2020). 3 As set forth infra, Respondent initially moved for dismissal of the petition as time barred and 28 incorporates a renewed motion to dismiss in its answer. 1 Respondent’s motion to dismiss and dismiss the petition with prejudice as time barred. 2 I. BACKGROUND 3 Significant is the fact that Ellis was represented by counsel throughout her direct and 4 collateral state appeal processes and remains represented by counsel on her federal habeas 5 petition. Ellis is serving a life sentence without the possibility of parole for her 2013 conviction, 6 after a jury trial, of first-degree murder of her husband. See Fresno County Superior Court in 7 Case No. F12907460. (Doc. No. 12-1). Petitioner filed a direct appeal but then voluntarily 8 moved to dismiss the appeal. (Doc. No. 12-2). The Court of Appeals entered a dismissal of the 9 appeal on September 4, 2015. Ellis sought no further direct review. (Id.). The instant petition 10 raises five grounds of constitutionally ineffective assistance of trial counsel. (See generally Doc. 11 No. 1). 12 The procedural history of this case is extensive. As stated previously, Ellis filed her 13 petition on February 12, 2019. (Doc. No. 1). On July 19, 2019, Respondent moved to dismiss 14 the petition as untimely. (Doc. No. 11). Ellis filed an opposition on August 7, 2019 (Doc. No. 15 13) and Respondent filed a reply on September 4, 2019 (Doc. No. 17). Also, on September 4, 16 2019, Ellis submitted a construed motion to file a surreply to Respondent’s reply. (Doc. No. 18). 17 The Court partially granted Ellis’ motion on February 4, 2020 (Doc. No. 20) and Ellis filed a 18 surreply on February 10, 2020 (Doc. No. 23). On March 13, 2020, the then-assigned magistrate 19 judge issued findings and recommendations, recommending that Respondent’s motion to dismiss 20 be denied without prejudice, finding that dismissal under Rule 4 of the Rules Governing Section 21 2254 cases was not appropriate at that time because the briefing at that point left essential issues 22 unaddressed. (Doc. No. 24 at 11-12). Respondent filed objections to the findings and 23 recommendations (Doc. No. 25) and Ellis filed a response to Respondent’s objections (Doc. No. 24 27). On June 2, 2020, the findings and recommendations were adopted. (Doc. No. 28). In the 25 findings and recommendations, Respondent was given leave to file a renewed motion to dismiss 26 on the issue of timeliness and Ellis was given leave to respond to any renewed motion to dismiss. 27 (Id.). On July 7, 2020, Respondent filed a renewed motion to dismiss the petition as untimely. 28 (Doc. No. 30). Ellis filed an opposition (Doc. No. 31) and Respondents filed a reply (Doc. No. 1 32). On August 10, 2020, Respondent sought to withdraw its motion to dismiss and refile a third 2 motion to dismiss considering a new California Supreme Court case (Robinson v. Lewis, No. 3 S228134 (Cal. July 20, 2020)). (Doc. No. 34). Respondent’s motion was denied, and the then- 4 assigned magistrate judge ordered Respondent to respond to the merits of the petition, giving 5 leave to the Respondent to brief Robinson in its answer. (Doc. No. 36). Respondent filed its 6 answer and incorporated a renewed motion to dismiss the petition as untimely. (Doc. No. 37). 7 On November 18, 2020, Ellis filed a reply to Respondent’s answer. (Doc. No. 40). 8 Accordingly, the undersigned will consider both parties’ briefing from Respondent’s 9 motion to dismiss (Doc. Nos. 30, 31, 32) and the relevant briefing related to untimeliness 10 incorporated into the answer (Doc. No. 37 at 22-33, Doc. No. 40 at 33-43). 11 Respondent reasserts that the petition is time barred and is subject to summary dismissal 12 because it was filed 22 days after the federal statute of limitations expired and Petitioner cannot 13 demonstrate an entitlement to equitable tolling. (Doc. Nos. 30, 32, 37). In response, Petitioner 14 claims that both statutory tolling and equitable tolling render her petition timely. (Doc. Nos. 31, 15 40). The undersigned agrees with Respondent that the petition is untimely, and thus declines to 16 address the merits of Petitioner’s claims in these Findings and Recommendation. 17 II. APPLICABLE LAW AND ANALYSIS 18 A. Standard of Review 19 Under Rule 4, if a petition is not dismissed at screening, the judge “must order the 20 respondent to file an answer, motion, or other response” to the petition. R. Governing 2254 Cases 21 4. The Advisory Committee Notes to Rule 4 state that “the judge may want to authorize the 22 respondent to make a motion to dismiss based upon information furnished by respondent.” In 23 White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989), the Ninth Circuit held that a motion to 24 dismiss based on procedural default is proper in habeas proceedings. Since that time, the Ninth 25 Circuit has affirmed cases where habeas petitions were dismissed on a respondent’s motion to 26 dismiss for untimeliness. Orthel v. Yates, 795 F.3d 935, 938 (9th Cir. 2015) (affirming district 27 court’s grant of respondent’s motion to dismiss petition as untimely because petitioner “did not 28 establish an exceptional circumstance that would warrant equitable tolling”); Stancle v. Clay, 692 1 F.3d 948, 951 (9th Cir. 2012) (same); Velasquez v. Kirkland, 639 F.3d 964, 966 (9th Cir. 2011). 2 In doing so, the Ninth Circuit has explicitly relied on information supplied outside the pleadings 3 and its attachments. Orthel, 795 F.3d at 940. Because the statute of limitations is a procedural 4 bar, the Court may consider the documents submitted by Petitioner and Respondent for purposes 5 of determining the issues of timeliness and whether Petitioner is entitled to equitable tolling. Id. 6 B. AEDPA’s Statute of Limitations 7 Title 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act 8 of 1996, sets a one-year period of limitations to the filing of a habeas petition by a person in state 9 custody. This limitation period runs from the latest of: 10 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 11 (B) the date on which the impediment to filing an application created 12 by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such 13 State action; 14 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly 15 recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 16 (D) the date on which the factual predicate of the claim or claims 17 presented could have been discovered through the exercise of due diligence. 18 28 U.S.C. § 2244(d)(1). Here, Ellis does not allege, nor does it appear from the pleadings or the 19 record, that the statutory triggers in subsections (B)-(D) apply. Thus, the limitations period began 20 to run on the date Ellis’ conviction became final. 28 U.S.C. § 2244(d)(1)(A); Jimenez v. 21 Quarterman, 555 U.S. 113, 120 (2009). 22 1. No Tolling for First State Habeas Petition 23 Ellis was sentenced on September 25, 2013. (Doc. No. 12-1 at 2). Ellis filed a direct 24 appeal but voluntarily dismissed the appeal, which the court of appeal granted on September 4, 25 2015. (Doc. No. 12-2). Due to her voluntary withdraw if her direct appeal, Ellis is not entitled to 26 the ten-day period for filing a petition for review under California Rules of Court, rule 8.5000. 27 Thus, Ellis’ conviction became final on the same day, Friday, September 4, 2015. See White v. 28 1 Klitzkie, 281 F.3d 920, 923 (9th Cir. 2002) (conviction became final when petitioner dismissed 2 his direct appeal); Morris v. Beard, No. ED CV 13-1493 JVS (JCG), 2014 U.S. Dist. LEXIS 3 2730, at *2 (C.D. Cal. Jan. 9, 2014) (judgment became final on the day the court of appeal 4 granted petitioner’s abandonment of appeal). Therefore, AEDPA’s statute of limitations 5 commenced on the next weekday, Monday, September 7, 2015, and expired one-year later, on 6 September 7, 2016.4 See Patterson v. Stewart, 251 F.3d 1243, 1246-47 (9th Cir. 2001) (adopting 7 anniversary method to calculate one-year statutory period). 8 The federal statute of limitations tolls for the “time during which a properly filed 9 application for State post-conviction or other collateral review with respect to the pertinent 10 judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). Represented by counsel, Ellis filed a 11 state superior court habeas petition on July 17, 2015. (Doc. No. 12-3). This petition was denied 12 on August 24, 2015. (Doc. No. 12-5). Ellis seeks statutory tolling based on the pendency of this 13 first state habeas petition, stating that it was part of one continuous round of collateral review. 14 (Doc. No. 31 at 7). However, Ellis’ first state petition was not pending at the relevant time; it was 15 denied before the federal statute of limitations started to run. Petitions filed and denied before the 16 statute of limitations begins to run result in no tolling. See Waldrip v. Hall, 548 F.3d 729, 735 17 (9th Cir. 2008) (“[Although filing a state habeas petition] would otherwise have tolled the running 18 of the federal limitations period, since it was denied before that period had started to run, it had 19 no effect on the timeliness of the ultimate federal filing.”). 20 The superior court denied Ellis’ first petition for failure to state a claim on August 24, 21 2015, approximately two weeks before the statute of limitations commenced on September 7, 22 2015. To the extent Ellis argues that her subsequent collateral filings related to her first state 23 superior court habeas petition tolls the limitation period, her argument fails. After the denial of 24 her first state habeas petition, Petitioner filed a motion for reconsideration in the state superior 25 court on November 30, 2015. The superior court denied the motion, stating the motion was 26 “improper” and instructing Petitioner’s “sole and proper remedy” was to file a new petition 27 4 The Court notes that the statute of limitations began running on Monday, September 7, 2015 rather than 28 Saturday, September 5, 2015 under Federal Rule of Civil Procedure 6(a)(1)(C). 1 before the court of appeal. (Doc. No. 12-6 at 1); see Jackson v. Superior Court, 189 Cal. App. 2 4th 1051, 1064 (2010) (explaining that an order denying a writ of habeas corpus is not appealable 3 in superior court; petitioner must file a new petition in the court of appeal). Instead of filing a 4 new petition as instructed, Ellis filed a motion for clarification with the superior court on 5 December 29, 2015. The superior court denied the motion, stating that the “Court’s order 6 denying Petitioner’s petition for writ of habeas corpus became final on August 24, 2015” and that 7 Petitioner’s remedy was to “file a new petition for a writ of habeas corpus in the Fifth District 8 Court of Appeals.” (Doc. No. 12-7 at 1). In California, “after the judgment has become final, 9 there is nothing pending to which a [post-judgment] motion may attach.” People v. Picklesimer, 10 226 P.3d 348, 353 (Cal. 2010). Consequently, neither of these collateral and improper filings 11 serve to toll the statute of limitations. Artuz v. Bennett, 531 U.S. 4, 8-9 (2000). Accordingly, 12 Ellis reaps no statutory tolling for the pendency of her first state superior court habeas petition. 13 2. Tolling for Second and Third State Habeas Petition 14 Ellis filed her second state habeas petition in the state superior court on Friday, August 5, 15 2016. (Doc. No. 12-8). Because her first state habeas petition had no statutory tolling effect, 16 supra, at the time Ellis lodged this second petition 333 days5 of the AEDPA limitations period 17 elapsed. Ellis’ second state habeas petition was denied on September 7, 2016. (Doc. No. 12-9). 18 Petitioner sought review before the state supreme court on December 5, 2016. (Doc. No. 12-11). 19 The state supreme court denied relief on December 12, 2018. (Doc. No. 12-12). Respondent 20 concedes that the second superior court petition and the state supreme court petition tolled the 21 statute of limitations from August 5, 2016 (the date the second state habeas petition was filed) 22 until December 12, 2018 (the date the state supreme court denied the petition). (Doc. No. 37 at 23 22). 24 3. AEDPA Period Expires Before Federal Petition Filed 25 The federal limitations period commenced running again on December 13, 2018, after the 26 denial of the state supreme court petition. This left Ellis with 32 days on the AEDPA clock, or 27 5 The period between September 7, 2015 (the date the federal limitations commenced) and August 5, 2016 28 (the date Ellis filed her second state habeas petition). 1 until Monday, January 14, 2019,6 to file a timely federal petition. Thus, Petitioner’s federal 2 habeas petition filed on February 12, 2019 was filed 29 days late. Therefore, the petition must be 3 dismissed as time barred unless Ellis can demonstrate that she is entitled to equitable tolling. 4 C. Equitable Tolling 5 1. Applicable Law 6 AEDPA’s statutory limitations period may be equitably tolled. Holland v. Florida, 560 7 U.S. 631, 645 (2010). Equitable tolling is available if a petitioner shows: “(1) that he has been 8 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and 9 prevented timely filing.” Id. at 649. To show “extraordinary circumstances,” a petitioner must 10 show that “the circumstances that caused his delay are both extraordinary and beyond his 11 control”—a high threshold. Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. 12 750, 756 (2016). “The requirement that extraordinary circumstances ‘stood in [a petitioner’s] 13 way’ suggests that an external force must cause the untimeliness.” Waldron-Ramsey v. Pacholke, 14 556 F.3d 1008, 1011 (9th Cir. 2009) (emphasis added). Furthermore, a petitioner must show that 15 the extraordinary circumstances caused the untimely filing of her habeas petition. See Bills v. 16 Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citing Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 17 2003) (explaining that equitable tolling is available only when the extraordinary circumstances 18 were the cause of the petitioner’s untimeliness); Smith v. Davis, 953 F.3d 582, 595 (9th Cir. 2020) 19 (“Whether an impediment caused by extraordinary circumstances prevented timely filing is a 20 ‘causation question.’”). 21 To demonstrate that she has been pursuing her rights diligently, a petitioner must show 22 that she has “been reasonably diligent in pursuing his rights not only while an impediment to 23 filing caused by an extraordinary circumstance existed, but before and after as well, up to the time 24 of filing his claim in federal court.” Davis, 953 F.3d 5 at 598-99. In other words, “when [a 25 petitioner] is free from the extraordinary circumstance, he must also be diligent in actively 26
27 6 The Court notes that the statute of limitations expired on Monday, January 14, 2019 under Federal Rule of Civil Procedure 6(a)(1)(C), which is the next weekday after the 32 days left in the statute of limitations 28 ran. 1 pursuing his rights.” Id. at 599. The diligence required for equitable tolling does not have to be 2 maximum feasible diligence, but rather reasonable diligence. Holland, 560 U.S. at 653. 3 However, “in every instance reasonable diligence seemingly requires the petitioner to work on his 4 petition with some regularity—as permitted by his circumstances—until he files it in the district 5 court.” Davis, 953 F.3d at 601. 6 Because a petitioner must show diligence before, during, and after extraordinary 7 circumstances prevented her from filing, the relevant period for the Court’s analysis is September 8 15, 2015 to February 12, 2019, the date Ellis’ conviction was final until the date Ellis filed her 9 federal petition. See Davis, 953 F.3d at 598-99. Admittedly, “the threshold necessary to trigger 10 equitable tolling under AEDPA is very high, lest the exceptions swallow the rule.” Miranda v. 11 Castro, 2929 F. 3d 1062, 1066 (9th Cir. 2002) (citations omitted). 12 2. Ellis Fails to Demonstrate Entitlement to Equitable Tolling 13 Ellis advances four reasons why she should be afforded equitable tolling: (1) late notice of 14 the state court’s denial of her first habeas petition; (2) pursuit of discovery; (3) Counsel’s illness 15 and personal problems; and (4) Counsel’s unfamiliarity with technology and court procedures. 16 Each of these factors involve actions by Ellis’ Counsel and do not, on their face, suggest 17 circumstances beyond Ellis’ control. But rather acts attributable to Ellis. This is because an 18 attorney is “the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, 19 and the petitioner must bear the risk of attorney error.” Coleman v. Thompson, 501 U.S. 722, 753 20 (1991) (quotation omitted). Habeas petitioners do not have a Sixth Amendment right to counsel 21 during collateral proceedings and therefore counsel’s actions during collateral proceedings 22 generally will not constitute grounds for equitable tolling. Lawrence v. Florida, 549 U.S. 327, 23 336-37 (2007). Thus, only where an attorney’s errors amount to an extraordinary circumstance 24 will a petitioner be entitled to equitable tolling. Holland, 560 U.S. at 648. As a practical matter, 25 the court is instructed it should not concern itself with where counsel’s actions fall on the 26 negligence meter—whether ordinary negligence or gross negligence. Id. at 655 (Justice Alito, 27 Concurrence in Part). Thus, extraordinary circumstances to warrant equitable tolling have been 28 found when counsel abandons a client, Maples v. Thomas, 132 S. Ct. 912, n.7 (2012), or where 1 counsel has been dishonest. Holland, 560 U.S. at 649. 2 a. Late Notice of State Court’s Denial 3 Ellis seeks 58 days of equitable tolling for the period from September 15, 2015, when the 4 statute of limitations began to run, until November 12, 2015, when Ellis states she received a 5 copy of the superior court’s August 24, 2015 order denying her first superior court habeas 6 petition. (Doc. No. 31 at 20-21; Doc. No. 40 at 39). Ellis’ Counsel claims she was not aware of 7 the state court’s denial of her first habeas petition until she received the conformed copy in the 8 mail on November 12, 2012. Ellis’ Counsel maintains that during this time, her “unfamiliar[ity] 9 with state court procedure, together with her infirmities and preoccupation with her infirmities” 10 prevented her from checking the status of petitioner’s first state habeas case, either electronically 11 or through calling the clerk’s office. (Doc. No. 31 at 20-21). 12 Respondent points out that the Clerk’s Certificate of Mailings dated August 26, 2015 and 13 November 12, 2015 both reflect the same address for Counsel. (Doc. No. 17-1 at 3 and Doc. 12-5 14 at 13). Respondent argues even assuming the later delivery of the notice, Petitioner’s Counsel 15 received a copy of the order a mere 58 days after the federal limitation period commenced. 16 Ellis fails to show how this late receipt of the state court’s order entitles her to equitable 17 tolling. Significantly, the Court finds supra that the first state superior court habeas petition had 18 no effect on tolling whatsoever because this petition was filed before the statute of limitations 19 commenced. Moreover, late receipt of a court order is not an extraordinary circumstance. “It is 20 counsel’s duty to monitor the court’s docket to stay informed of the court’s orders and filing 21 deadlines.” Willis v. JP Morgan Chase Bank, No. 2:17-00366-WBS-AC, 2017 U.S. Dist. LEXIS 22 195422, at *3-4 (E.D. Cal. Nov. 27, 2017). Ellis’ Counsel could have telephoned the clerk to 23 inquire about the status of the petition if she was not familiar with the court’s electronic docketing 24 system. And even if the Court were to find “extraordinary circumstances,” which the Court does 25 not, Ellis fails to show diligence since she permitted months to pass without checking the court’s 26 docket. See Ramirez v. Yates, 571 F.3d 993, 997-98 (9th Cir. 2009) (quoting Woodward v. 27 Williams, 263 F.3d 1135, 1143 (10th Cir. 2001)) (“[A petitioner’s] lack of knowledge that the 28 state courts have reached a final resolution of [her] case can provide grounds for equitable tolling 1 if the [petitioner] has acted diligently in the matter.”). Additionally, after learning of the denial of 2 Ellis’ state petition, instead of doing as instructed by the superior court and proceeding to the 3 court of appeal, Counsel elected instead to seek reconsideration and clarification from the 4 superior court. (See Doc. No. 12-7 at 1). Thus, even if Counsel had received notice 58 days 5 earlier, there is no reason to suggest Counsel’s action would have been any different, i.e., that she 6 would not have filed the improper motions for reconsideration and clarification. In other words, 7 this 58-day delay had no bearing on Ellis permitting over nine months to elapse before she 8 properly filed a second petition in superior court. (Id.). There is no evidence in the record that 9 Ellis inquired of counsel as to the status of her case, let alone that she urged counsel to check on 10 the status of her case. 11 Finally, Ellis does not show a nexus between Counsel’s late notice of the superior court 12 denial caused the untimely filing of her federal habeas petition more than four years later. See 13 Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citing Spitsyn, 345 F.3d at 799) (explaining 14 that equitable tolling is available only when the extraordinary circumstances were the cause of the 15 petitioner’s untimeliness). Here, by Ellis’ own admission, she received the superior court order 16 denying her first state petition after 58 days had elapsed on the federal limitations clock— 17 meaning Ellis had ten months remaining in which to file a properly-filed state motion or file her 18 federal petition. Based on controlling precent and the facts in the record, Ellis is not entitled to 19 equitable tolling for her Counsel’s failure to check the docket and the date she received the 20 superior court’s denial of her first habeas petition. 21 b. Time Spent Conducting Discovery in State Court 22 Ellis seeks 60 days of equitable tolling for her discovery efforts to support the filing of her 23 second state habeas petition. (Doc. No. 31 at 21-23; Doc. No. 40 at 40-42). Counsel claims 24 Petitioner was reluctant to share personal details about her past requiring “a great deal of coaxing 25 and reassurance from counsel” to support Petitioner’s newly asserted defense that Petitioner’s 26 husband committed suicide. Notably, at trial, Petitioner testified that her husband was shot by an 27 intruder. Petitioner’s reluctance to assist her own Counsel in her new defense does not warrant 28 extraordinary circumstances. 1 Petitioner also claims she needed to locate experts and obtain forensic evidence from the 2 prosecution. A state habeas petitioner in California can, under certain circumstances, obtain a 3 court order authorizing discovery, and Ellis did obtain one here. (Doc. No. 12-8 at 4). However, 4 preparing a habeas petition is not meant “to be a fishing expedition for habeas petitioners to 5 ‘explore their case in search of its existence.’” Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 6 1999) (quoting Calderon v. U.S.D.C. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996)). To the 7 extent Ellis argues that she had a federal right to discovery before she filed her federal petition, 8 her argument fails. See Calderon v. United States Dist. Court, 120 F.3d 927, 928 (9th Cir. 1997) 9 (“Until [a petitioner] has filed a federal habeas petition on an exhausted claim, [s]he cannot avail 10 [herself] of . . . discovery.”). 11 Here, Ellis seeks equitable tolling for 60 days of the roughly seven months her counsel 12 spent gathering supporting documentation from Petitioner and third parties. Ellis fails to explain 13 how she calculated “60 days” from the more than seven months she engaged in discovery as the 14 appropriate time for which equitable tolling should granted. Nor does Ellis show how gathering 15 this information was an “extraordinary circumstance.” The information counsel sought was not 16 necessary for filing of her first habeas petition. Counsel could have conducted discovery after 17 filing her habeas petition, during which time the statute of limitations would be tolled. Further, 18 Petitioner has failed to show that she acted with diligence. And again, Ellis herself presents no 19 evidence that she inquired of counsel as to her federal deadline or urged her counsel to file timely 20 despite her pursuit of discovery. Even if the Court was to conclude that Ellis’ pursuit of 21 discovery establishes diligence, Ellis would need to demonstrate that her seven months of effort 22 somehow caused the late filing of her federal petition. See Spitsyn, 345 F.3d at 799. 23 Accordingly, the Court finds that Ellis should not be afforded any equitable tolling for the time 24 she spent conducting discovery. 25 c. Counsel’s Illness and Personal Difficulties 26 Ellis seeks 68 days of tolling due to Counsel’s illness (Doc. No. 31 at 23; Doc. No. 40 at 27 39-41), and another 20 days of tolling for the time Counsel spent attending to a family member. 28 (Doc. No. 31 at 23-24; Doc. No. 40 at 43). Although “it is possible that an attorney’s incapacity 1 could result in abandonment,” Ellis fails to establish how Counsel’s illness and personal problems 2 rendered Counsel incapacitated to the point of abandonment. Traverso v. Ryan, No. CV-13-0224- 3 PHX-DLR (JZB), 2015 U.S. Dist. LEXIS 100426, at *13 (D. Ariz. June 16, 2015); Kershaw v. 4 Evans, No. CIV S-06-1430 FCD GGH P, 2007 U.S. Dist. LEXIS 60224, at *26 (E.D. Cal. Aug. 5 16, 2007) (finding that petitioner was entitled to equitable tolling where counsel’s health issues 6 precipitated his retirement from the practice of law and petitioner diligently urged his counsel to 7 file his petition); Robertson v. Simpson, 624 F. 3d 782, 785 (6th Cir. 2010) (There is “[n]o 8 principled distinction . . . between [attorney] incapacity and negligence for equitable tolling 9 purposes.”). Ellis neither suggests nor presents no evidence that Counsel abandoned her. See 10 Maples, 132 S. Ct. 912, 922-23 (2012) (finding principle-agent relationship severed when counsel 11 abandoned client without notice). Moreover, Ellis independently does not show any diligence on 12 her part during the time her counsel was ill and dealing with personal problems. Accordingly, 13 Petitioner should not be afforded equitable tolling on this ground. 14 d. Counsel’s Unfamiliarity with Technology and Court Procedures 15 Ellis’ Counsel states that she was unaware of and/or unfamiliar with the electronic filing 16 of court documents and court procedures and it “very likely would have resulted in the same 17 snafu as her first attempt to file the federal petition.” (Doc. No. 31 at 21, 23; Doc. No. 40 at 39- 18 41). “[N]egligence in general do[es] not constitute extraordinary circumstances sufficient to 19 warrant equitable tolling.” Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001); Johnson v. 20 Quarterman, 483 F.3d 278, 287 (5th Cir. 2007) (attorney’s computer failure on date petition was 21 due does not warrant equitable tolling); Ley v. Charles Schwab & Co., No. 18-cv-02207-MSK- 22 STV, 2019 U.S. Dist. LEXIS 93230, at *8-9 (D. Colo. June 4, 2019) (technical difficulties, 23 whether the fault of counsel or outside counsel’s control, do not warrant equitable tolling). 24 Although Ellis’ Counsel’s lack of understanding of technology and court filing procedures is 25 unfortunate, her actions do not warrant equitable tolling. 26 e. Equitable Tolling for Attorney Misconduct 27 The prior assigned magistrate judge sua sponte raised attorney misconduct as a possible 28 ground for equitable tolling. (See Doc. No. 24 at 8-10). Respondent objects to the Court’s 1 interjection of attorney misconduct as a possible ground for equitable tolling. (Doc. No. 37 at 2 23). The undersigned notes Ellis, who is represented in these proceedings by counsel, did not 3 advance attorney misconduct as a ground for equitable tolling. The Supreme Court, finding the 4 appellate court abused its discretion in reframing and directing briefing on an issue not initially 5 raised, stressed adherence to the “principle of party presentation” requiring federal courts “in both 6 civil and criminal cases, in the first instance and on appeal” to “rely on the parties to frame the 7 issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” 8 United States v. Sineneng-Smith, ___ U.S. ___, 140 S. Ct. 1575, 1579, 206 L. Ed. 2d 866 (2020) 9 (quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008)). The rule is not “ironclad” and 10 departures for pro se litigants in criminal cases may requires leniency “to protect a pro se 11 litigant’s rights,” but “as a general rule” our adversarial system “is designed around the premise 12 that [parties represented by competent counsel] know what is best for them and are responsible 13 for advancing the facts and argument entitling them to relief.” Id., (citing Castro v. United States, 14 540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in judgment)). Suffice it 15 to say, Petitioner’s silence on this issue deafens this Court’s ear from hearing argument on this 16 ground. 17 Even if Counsel set forth such a claim, the record falls far short of any actions by Counsel 18 that can be viewed as an abandonment by counsel or the level of unprofessional, unethical, or 19 egregious conduct by counsel required to grant equitable tolling. Holland, 560 U.S. at 652-53 20 (“[A] garden variety claim of excusable neglect” does not warrant equitable tolling.” Id. at 651- 21 52 (quoting Irwin v. Dept. of Veteran Affairs, 498 U.S. 89, 96 (1990). Here, to the contrary, the 22 record reveals Counsel expended considerable time compiling the factual basis to support 23 Petitioner’s newly raised defense. At most, it appears Counsel overlooked the ticking of the 24 AEDPA clock while gathering evidentiary support for the second habeas petition. No evidence 25 suggests dishonesty, bad faith, or divided loyalty by Counsel. Id. at 649. 26 Despite statutory tolling, the petition was filed beyond the one-year AEDPA statute of 27 limitations. Further, the undersigned finds no extraordinary circumstances to warrant equitable 28 tolling. Accordingly, the undersigned recommends that Defendant’s motion to dismiss be granted 1 and the petition be dismissed as time-barred with prejudice. 2 IV. CERTIFICATE OF APPEALABILITY 3 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 4 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 5 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 6 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a 7 certificate of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 8 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court 9 denies habeas relief on procedural grounds without reaching the merits of the underlying 10 constitutional claims, the court should issue a certificate of appealability only “if jurists of reason 11 would find it debatable whether the petition states a valid claim of the denial of a constitutional 12 right and that jurists of reason would find it debatable whether the district court was correct in its 13 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 14 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 15 could not conclude either that the district court erred in dismissing the petition or that the 16 petitioner should be allowed to proceed further.” Id. Here, reasonable jurists would not find the 17 undersigned’s conclusion debatable or conclude that petitioner should proceed further. The 18 undersigned therefore recommends that a certificate of appealability not issue. 19 Accordingly, it is RECOMMENDED: 20 1. Respondent’s motion to dismiss (Doc. No. 30) be GRANTED. 21 2. The petition (Doc. No. 1) be DISMISSED as time-barred with prejudice. 22 3. Petitioner be denied a certificate of appealability. 23 NOTICE TO PARTIES 24 These findings and recommendations will be submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 26 (14) days after being served with these findings and recommendations, a party may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 Findings and Recommendations.” Parties are advised that failure to file objections within the 1 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 Dated: August 30, 2021 ooo. Zh. fared Hack 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15