(HC) Hunter-Harrison v. Atchley

• Court: District Court, E.D. California
• Decided: August 8, 2023
• Docket: 2:20-cv-00592
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GRANVAL G. HUNTER-HARRISON, No. 2:20-cv-00592-WBS-CKD P JR., 12 Petitioner, 13 FINDINGS AND RECOMMENDATIONS v. 14 M. ATCHLEY, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se in this federal habeas corpus action filed 18 pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s motion to dismiss claims 19 1 and 3-6 of the first amended federal habeas corpus petition on the basis that they are barred by 20 the statute of limitations. ECF No. 35. For the reasons discussed below, the court recommends 21 that the partial motion to dismiss be granted. 22 I. Factual and Procedural History 23 Petitioner entered a negotiated no contest plea in the Sacramento County Superior Court 24 to two counts of assault with a semi-automatic firearm which involved a dispute over a 25 motorbike. ECF No. 1 at 1; see also ECF No. 13-2 (Direct Appeal Opinion). As part of his plea, 26 petitioner admitted to the firearms enhancements as well as a strike prior allegation. ECF No. 13- 27 2 at 2. On May 18, 2017, he was sentenced to a determinate term of 27 years, 4 months in prison 28 pursuant to the stipulated terms of his plea agreement. ECF No. 1 at 26-27 (Felony Abstract of 1 Judgment). 2 A. Direct Appeal 3 The California Court of Appeal affirmed petitioner’s conviction on March 28, 2018, but 4 modified the judgment to dismiss the remaining charges “as contemplated in the negotiated plea 5 agreement.” ECF No. 13-2 at 4. 6 Petitioner filed a pro se petition for review in the California Supreme Court on April 30, 7 2018.1 ECF No. 13-3. On July 11, 2018, the California Supreme Court denied the petition for 8 review “without prejudice to the filing of a petition for a writ of habeas corpus in the trial court 9 raising the question of the applicability of Senate Bill No. 620… to defendant’s no contest plea.” 10 ECF No. 13-4.2 11 B. State Post-Conviction Proceedings 12 Petitioner filed a total of six habeas petitions in state court challenging his Sacramento 13 County conviction. 14 On January 16, 2020, petitioner filed a habeas petition in the Sacramento County Superior 15 Court. ECF No. 36-1. It was denied on April 28, 2020. ECF No. 36-2. 16 Next, petitioner filed a challenge pursuant to California Penal Code § 1170.95 in the 17 Sacramento County Superior Court on or about January 21, 2020.3 ECF No. 36-3 (Sacramento 18 County Superior Court Case Information). This petition was denied on August 4, 2020. ECF No. 19 36-3. 20 On June 17, 2020, petitioner filed his third habeas petition in the Sacramento County 21 Superior Court. ECF No. 36-4. It was denied by order dated October 8, 2020 on the basis that 22 the petition was successive and untimely. ECF No. 36-5 (citing In re Clark, 5 Cal.4th 750, 774- 23

24 1 All filing dates have been calculated using the prison mailbox rule unless otherwise indicated. See Houston v. Lack, 487 U.S. 266 (1988). 25 2 Petitioner alleged in his original § 2254 petition that he did not receive notice of this decision until over a year later on August 5, 2019. ECF No 1 at 13, 38-39; ECF No. 20 at 5. 26 3 Respondent was unable to obtain a copy of this petition from the state court. See ECF No. 35 at 27 2, n. 4. Therefore, the prison mailbox rule was not applied to this filing. Because it was filed during the pendency of his first state habeas petition, however, this does not affect the court’s 28 statute of limitations analysis. 1 775 (1993) (describing the bar on successive habeas petitions); In re Robbins, 18 Cal.4th 770, 2 811-12, (1998) (discussing the bar on untimely petitions and exceptions)). 3 Petitioner’s next habeas petition was filed on May 9, 2021 in the trial court. ECF No. 36- 4 6. It was denied on June 17, 2021 as both untimely and a successive habeas petition. ECF No. 5 36-7 at 1. 6 The fifth habeas corpus petition was filed on September 16, 2021 in the California Court 7 of Appeal. ECF No. 36-8. It was denied on December 29, 2001 without explanation or citation 8 to authority. ECF No. 36-9. 9 Petitioner’s final state habeas petition was filed in the California Supreme Court on 10 January 31, 2022. ECF No. 36-10. It was denied by order dated April 13, 2022. ECF No. 36-11 11 (undated order); see also California Courts Appellate Courts Case Information, available at 12 https://tinyurl.com/yc3bw6py (last visited August 3, 2023). 13 C. Federal Habeas Proceedings 14 By order dated February 17, 2021, claims one and two of petitioner’s original federal 15 habeas application were dismissed because they raised only state law claims that are not 16 cognizable in federal habeas. See ECF No. 25. The same order granted petitioner’s motion for a 17 stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005). ECF No. 25 at 2. This 18 action was therefore administratively stayed pending exhaustion of petitioner’s state court 19 remedies. Id. 20 On June 12, 2022, petitioner filed a motion to lift the stay of these proceedings. ECF No. 21 31. By order dated July 28, 2022, the stay of this case was lifted and petitioner was granted 30 22 days to file a first amended § 2254 petition. ECF No. 32. 23 Petitioner filed his first amended § 2254 petition on August 1, 2022 raising six claims for 24 relief. ECF No. 33. In his first claim, petitioner raises a facial challenge to the Three Strikes 25 Law. ECF No. 33 at 6. He next contends that his trial lawyer provided ineffective assistance of 26 counsel in failing to investigate his defense. ECF No. 33 at 8. Petitioner also asserts that his 27 sentence violates the Thirteenth Amendment’s prohibition against slavery and indentured 28 servitude. Id. at 9. Fourth, petitioner challenges his sentence alleging that it violates the Eighth 1 Amendment because it is disproportionate to other felony sentences. Id. at 11. Petitioner also 2 alleges that his appellate counsel was ineffective for submitting a Wende brief in the California 3 Court of Appeal.4 Id. at 50-52. Lastly, petitioner asserts that he is factually innocent of his strike 4 prior which he alleges is the gateway to have his remaining claims reviewed on the merits. ECF 5 No. 33 at 52-53 (citing Schlup v. Delo, 513 U.S. 298 (1995)). 6 II. Motion to Dismiss 7 In the motion to dismiss, respondent contends that all claims except the ineffective 8 assistance of trial counsel claim were untimely filed because they do not relate back to any of the 9 claims in petitioner’s original federal habeas petition. ECF No. 35. According to respondent, 10 these claims were filed “well over a year” after the statute of limitations expired. ECF No. 35 at 11 3. Respondent acknowledges that based on this court’s Findings and Recommendations of 12 December 9, 2020, the statute of limitations started on August 6, 2019, after petitioner received 13 notice of the California Supreme Court denial, and expired one year later on August 6, 2020 14 absent any additional statutory or equitable tolling. ECF No. 35 at 4. However, based on the 15 pendency of petitioner’s first and second state habeas petitions, he is entitled to statutory and gap 16 tolling from January 16, 2020 until August 4, 2020. ECF No. 35 at 5-6; see also 28 U.S.C. § 17 2244(d)(2); Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010 (explaining the standard used in 18 determining whether gap tolling applies). The statute of limitations re-started on August 5, 2020 19 and was not tolled during the pendency of petitioner’s third state habeas petition filed in the 20 Sacramento County Superior Court because it was denied as an untimely and successive 21 rendering it not “properly filed” for federal statute of limitations analysis. ECF No. 35 at 6. 22 Thus, according to respondent, the statute of limitations expired on February 22, 2021. ECF No. 23 35 at 6. Petitioner’s subsequent state habeas corpus petitions did not revive the statute of 24 limitations that had expired before they were filed. Id. Thus, according to respondent, 25 petitioner’s first amended § 2254 petition was filed 17 months after the statute of limitations 26 expired. Respondent does concede that the ineffective assistance of trial counsel claim raised in 27

28 4 See California v. Wende, 25 Cal.3d 436 (1979). 1 claim two of the amended § 2254 petition relates back to the timely filed original § 2254 claim 2 raised in ground 3. ECF No. 35 at 7 n. 9. Therefore, that claim is timely filed. Petitioner does 3 not meet the actual innocence exception to warrant any equitable tolling of the statute of 4 limitations because his assertion of innocence is entirely conclusory and not supported by any 5 new and reliable evidence. ECF No. 35 at 8. 6 Petitioner filed an opposition to the motion to dismiss requesting both statutory and 7 equitable tolling. ECF No. 52. First, petitioner argues that the statute of limitations was 8 statutorily tolled for the entire time that his six state habeas petitions were pending. Petitioner 9 also requests equitable tolling based on his actual innocence. “[H]e is actually and factually 10 innocent of the charges that resulted in his enhanced sentencing punishment….” ECF No. 52 at 11 16. Additionally, petitioner contends that he is entitled to equitable tolling because he was denied 12 “reasonable access to the prison law library, copying and legal assistance at the Salinas Valley 13 [S]tate Prison all of the year 2020 and parts of 2021 while under the [Covid-19] State of 14 Emergency.” ECF No. 52 at 3-4.5 Petitioner also requests equitable tolling based on the 15 ineffective assistance of his appellate counsel for submitting a Wende brief on direct appeal. 16 According to petitioner, he discovered the bases for habeas relief in February 2021, entitling him 17 to an alternate start date of the statute of limitations. Lastly, petitioner argues that the statute of 18 limitations itself violates the suspension clause and the separation of powers doctrine. 19 By way of reply, respondent points out that petitioner is not entitled to an alternate start 20 date of the statute of limitations based on the discovery of legal grounds to challenge his 21 conviction that were discovered by his jailhouse lawyer. ECF No. 53 at 2 (citing Hasan v. 22 Galaza, 254 F.3d 1140, 1154 n. 3 (9th Cir. 2001)). Moreover, alternate start dates are analyzed 23 claim-by-claim and do not provide a catch-all that would render all of his claims timely filed. 24 Respondent submits that petitioner was aware of the factual predicate supporting his new claims 25 for relief at the time of his plea and sentencing in 2017, or, at the very latest, during his direct 26 appeal in 2018. Respondent points out that petitioner does not dispute that claims 1 and claims 3- 27 5 Petitioner also attached several prison documents to his opposition describing the limited 28 availability of photocopying services in February and March 2023. ECF No. 52 at 24-26. 1 6 do not relate back to any of his timely filed claims in his original § 2254 petition. Regarding 2 petitioner’s request for equitable tolling, respondent points out that during the Covid-19 state of 3 emergency, petitioner was able to file one state habeas petition in 2020 and two state habeas 4 petitions in 2021.6 Petitioner also submitted his motion to stay these federal habeas proceedings 5 in June 2020. Further, “[p]etitioner’s assertion that he is entitled to equitable tolling because 6 appellate counsel failed to raise issues on appeal is cursory and offered without any supporting 7 case law.” ECF No. 53 at 8. Similarly, petitioner’s actual innocence argument is not supported 8 by any new evidence and thus does not justify equitable tolling. Lastly, the Supreme Court as 9 well as the Ninth Circuit Court of Appeal have rejected the argument that the statute of 10 limitations violates the separation of powers doctrine. ECF No. 53 at 10 (citations omitted). 11 Petitioner was granted permission to file a sur-reply by order dated April 26, 2023. ECF 12 No. 58. In his sur-reply, petitioner requests equitable tolling from the beginning of 2020 until 13 May 2023 when the Covid-19 emergency declaration was lifted. ECF No. 59 at 4. As support 14 therefore, petitioner submitted a Memorandum from the Librarian at Salinas Valley State Prison 15 stating that “[f]or the first year of COVID, there was no law library access as programming was 16 suspended. As restrictions were eased, access remained erratic due to outbreaks, library staff 17 shortages, and custody shortages. Frequent closures made it difficult to access the library for 18 research and other services.” ECF No. 59 at 8. During this time, petitioner “was not allowed 19 reasonable access to the law library, nor an adequate law library facility with inmates who are 20 paralegal graduates or counsel” as required by Bounds v. Smith, 430 U.S. 817 (1977), abrogated 21 by Lewis v. Casey, 518 U.S. 343 (1996). Alternatively, petitioner argues that he is “actually and 22 factually innocent” of the finding of his strike prior and that the recidivist Three Strikes Law is 23 just a “re-enslavement of poor disenfranchised black people and people of color.” ECF No. 59 at 24 6. 25 ///// 26

27 6 Respondent also submitted relevant portions of the California Department of Corrections and Rehabilitation’s Department Operational Manual governing law library usage and the available 28 paging system when a prison is on modified program status. See ECF No. 54-1. 1 III. Legal Standards 2 A. Statute of Limitations 3 Section 2244(d) (1) of Title 28 of the United States Code contains a one-year statute of 4 limitations for filing a habeas petition in federal court. The one-year clock commences from 5 several alternative triggering dates which are described as: 6 (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; 7 (B) the date on which the impediment to filing ... is removed, if the 8 applicant was prevented from filing by such State action; 9 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court ... and made retroactively 10 applicable to cases on collateral review; or 11 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due 12 diligence. 13 28 U.S.C. § 2244(d)(1). 14 B. Statutory Tolling 15 The statute of limitations is tolled during the time that a properly filed application for state 16 post-conviction or other collateral review is pending in state court. 28 U.S.C. § 2244(d)(2). A 17 properly filed application is one that complies with the applicable laws and rules governing 18 filings, including the form of the application and time limitations. Artuz v. Bennett, 531 U.S. 4, 8 19 (2000). The statute of limitations is not tolled from the time when a direct appeal in state court 20 becomes final to the time when the first state habeas petition is filed because there is nothing 21 “pending” during that interval. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Moreover, 22 the tolling provision of § 2244(d)(2) can only pause a clock not yet fully run; it cannot “revive” 23 the limitations period once it has expired (i.e., restart the clock to zero). Thus, a state court 24 habeas petition filed after the expiration of AEDPA's statute of limitations does not toll the 25 limitations period under § 2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 26 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). 27 C. Equitable Tolling 28 A court may equitably toll the statute of limitations if petitioner demonstrates: 1) the 1 existence of an “extraordinary circumstance” that prevented him from timely filing; and, 2) that 2 notwithstanding such an impediment he was diligently pursuing relief. See Holland v. Florida, 3 560 U.S. 631, 649 (2010). The Supreme Court has further clarified that the diligence required to 4 establish entitlement to equitable tolling is not “‘maximum feasible diligence’” but rather only 5 “‘reasonable diligence.’” Holland, 560 U.S. at 653 (citations omitted). However, the Ninth 6 Circuit has cautioned that “the threshold necessary to trigger equitable tolling ... is very high, lest 7 the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) 8 (internal citations and quotations omitted). Additionally, petitioner must demonstrate the causal 9 relationship between the extraordinary circumstance and the untimely filing. Spitsyn v. Moore, 10 345 F.3d 796, 799 (9th Cir. 2003). With respect to equitable tolling, “the statute-of-limitations 11 clock stops running when extraordinary circumstances first arise, but the clock resumes running 12 once the extraordinary circumstances have ended or when the petitioner ceases to exercise 13 reasonable diligence, whichever occurs earlier.” Luna v. Kernan, 784 F.3d 640, 651 (9th Cir. 14 2015) (citing Gibbs v. Legrand, 767 F.3d 879, 891-92 (9th Cir. 2014)). 15 D. Relation Back Doctrine 16 Under Rule 15(c)(2) of the Federal Rules of Civil Procedure, an amendment of a pleading 17 relates back to the date of the original pleading when “the claim or defense asserted in the 18 amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be 19 set forth in the original pleading.” This rule applies in habeas corpus proceedings. Mayle v. 20 Felix, 545 U.S. 644, 650 (2005); Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000). In 21 Mayle, the Supreme Court held that relation back is appropriate if the claim to be amended into 22 the petition is tied to the original timely petition by “a common core of operative facts.” Mayle, 23 545 U.S. at 664. Conversely, the claim does not relate back when it asserts a new ground for 24 relief supported by facts that differ in both “time and type” from those the original pleading set 25 forth. Id. at 650. The Mayle court expressly rejected the Ninth Circuit's interpretation of the rule 26 that a claim relates back if it arises merely from the same judgment and conviction. Id. at 656– 27 657. “An amended habeas petition does not relate back ... when it asserts a new ground for relief 28 supported by facts that differ in both time and type from those the original pleading set forth.” 1 Hebner v. McGrath, 543 F.3d 1133, 1138 (9th Cir. 2008) (quoting Mayle, 545 U.S. at 650). 2 IV. Analysis 3 This court previously determined that petitioner’s delay in receiving the California 4 Supreme Court’s direct appeal decision justified equitable tolling and/or an alternate start date of 5 the statute of limitations. See ECF No. 21 at 7 (Findings and Recommendations); ECF No. 25 6 (Order adopting Findings and Recommendations). This finding represents the law of the case and 7 still controls the calculation of the statute of limitations. See ECF No. 35 at 4. Indeed, the 8 respondent agrees that the law of the case doctrine applies in determining when the statute of 9 limitations commenced in this case. See ECF No. As a result, the statute of limitations did not 10 start until August 6, 2019 and it expired one year later on August 5, 2020, absent any additional 11 statutory or equitable tolling. See ECF No. 21 at 8. 12 A. Alternate Start Date of the Statute of Limitations 13 Petitioner requests an alternate start date for the statute of limitations beginning in 14 February 2021 when his jailhouse lawyer discovered the legal bases raised in the pending 15 amended § 2254 petition. See ECF No. 36-6 at 3-4 (Declaration of Johndell Henderson); ECF 16 No. 36-6 at 5-8 (Declaration of Petitioner). However, respondent correctly points out that 17 discovering the legal significance of particular facts is not a recognized basis to start the statute of 18 limitations. See 28 U.S.C. § 2244(d)(1)(D) (recognizing that the statute of limitations may 19 commence from “the date on which the factual predicate of the claim… could have been 20 discovered through the exercise of due diligence.”); see also Hasan v. Galaza, 254 F.3d 1150, 21 1154 (9th Cir. 2001) (concluding that “to have the factual predicate for a habeas petition based on 22 ineffective assistance of counsel, a petitioner must have discovered (or with the exercise of due 23 diligence could have discovered) facts suggesting both unreasonable performance and resulting 24 prejudice.”) (emphasis in original). Because petitioner was aware of the factual predicate 25 supporting his current ineffective assistance, sentencing, and actual innocence claims by the time 26 of his direct appeal in 2018, the undersigned concludes that he is not entitled to an alternate start 27 date of the statute of limitations. 28 ///// 1 B. Statutory Tolling 2 Petitioner’s first state habeas petition filed on January 16, 2020 tolled the statute of 3 limitations with 212 days remaining on the clock. While this state habeas petition was pending in 4 the trial court, petitioner filed his second post-conviction collateral proceeding in the same court. 5 Respondent concedes that statutory tolling is appropriate until the date that petitioner’s second 6 post-conviction proceeding was denied by the Sacramento Superior Court. Therefore, the statute 7 of limitations remained tolled until August 4, 2020. 8 The parties disagree about whether petitioner’s third through sixth state habeas petitions 9 entitle him to additional statutory tolling. The undersigned finds that statutory tolling is not 10 warranted between August 4, 2020 and October 8, 2020 because petitioner’s third state habeas 11 application was denied as a successive and untimely petition and therefore not “properly filed.” 12 See 28 U.S.C. § 2244(d)(2) (allowing tolling only for “a properly filed application for State post- 13 conviction or other collateral review….”); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) 14 (finding that “[f]or tolling to be applied based on a second round [of state postconviction review], 15 the petition cannot be untimely or an improper successive petition.”) (citations omitted). As a 16 result, the statute of limitations restarted on August 5, 2020 and expired on February 23, 2021.7 17 Petitioner’s fourth through sixth state habeas petitions were all filed after the statute of limitations 18 had expired. Thus, no additional statutory tolling is warranted during the pendency of these state 19 habeas petitions. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 20 276 F.3d 478, 482 (9th Cir. 2001). Petitioner’s first amended § 2254 petition was filed 524 days 21 late absent any additional equitable tolling. 22 ///// 23 ///// 24 7 By respondent’s calculation, the statute of limitations expired on February 22, 2021. This does 25 not exclude the date of the event when the Sacramento County Superior Court denied petitioner’s second state habeas petition. See Fed. R. Civ. P. 6(a)(1)(A) (explaining that when a deadline is 26 stated in days or a longer unit of time, “the day of the event that triggers the period is not 27 counted….”); see also Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (holding that Rule 6(a) of the Federal Rules of Civil Procedure applies when calculating the one-year grace 28 period after the enactment of the AEDPA as well as statutory tolling). 1 C. Equitable Tolling 2 1. Lack of Access to Law Library during Covid-19 3 The parties have submitted dueling declarations regarding the impact of Covid-19 on 4 petitioner’s law library access. Compare ECF No. 59 at 8 (Memorandum of SVSP Librarian); 5 with ECF No. 54-1 (CDCR DOM § 101120.8 et seq.) In resolving petitioner’s request for 6 equitable tolling on this basis, the court credits petitioner’s evidence as it is the only specific 7 evidence before the court that addresses law library access at Salinas Valley State Prison where 8 petitioner was an inmate during the relevant time period based on the Covid-19 pandemic. This 9 evidence indicates that “[f]or the first year of COVID, there was no law library access as 10 programming was suspended. As restrictions were eased, access remained erratic…. Frequent 11 closures made it difficult to access the library for research and other services.” ECF No. 59 at 8. 12 In order to be entitled to equitable tolling, petitioner must demonstrate the causal 13 relationship between the extraordinary circumstance and the untimely filing. Spitsyn v. Moore, 14 345 F.3d 796, 799 (9th Cir. 2003). Between June 2020 and December 2021, petitioner was able 15 to file three separate state habeas petitions as well as a motion for a stay and objections to the 16 Findings and Recommendations in this court. Based on the number of both state and federal 17 pleadings that petitioner was able to file during the height of the Covid-19 pandemic, the 18 undersigned finds that he has failed to establish that this was the but-for cause of his untimely 19 filing. Moreover, recent district court decisions concerning equitable tolling based on the Covid- 20 19 pandemic support this court’s conclusion. See Purtill v. Covello, Case No. 2:22-cv-0199- 21 KJM-DB-P, 2022 WL 16702093 (E.D. Cal. Nov. 3, 2022) (denying equitable tolling due to 22 prison shut downs and mail delays caused by COVID-19 pandemic based on a lack of specific 23 details supporting tolling requests); Valles v. Allison, 2022 WL 3327386 at *4-5 (S.D. Cal. Aug. 24 11, 2022), adopted by 2023 WL 2447520 (March 10, 2023); Sholes v. Cates, Case No. 1:21-cv- 25 01006-DAD-HBK, 2021 WL 5567381 (E.D. Cal. Nov. 29, 2021) (rejecting equitable tolling 26 claim based on lack of causation and lack of diligence where “there was, in fact, a paging system 27 in place to allow access to the law library during COVID in the later stages that he failed to 28 utilize….”); Shepherd v. Asuncion, 2021 WL 6496744, at *8 (C.D. Cal. Nov. 3, 2021); Holguin 1 v. Pfeiffer, Case No. 1:20-cv-01715-NONE-HBK, 2021 WL 3883697 (E.D. Cal. Aug. 31, 2021) 2 (denying equitable tolling due to prison lockdowns and lack of law library resulting from 3 pandemic because petitioner did not show it was the cause of his untimely filing where the statute 4 of limitations expired before March 2020 and any pandemic restrictions started); Lara v. 5 McDowell, Case No. 1:21-cv-00044-NONE-HBK, 2021 WL 2805644 (E.D. Cal. July 6, 2021) 6 (rejecting equitable tolling argument where the statute of limitations expired before the COVID- 7 19 protocols started and where petitioner was able to file 4 state habeas petitions during such 8 restrictions). Therefore, the court finds that petitioner is not entitled to additional equitable 9 tolling on this basis. 10 2. IAC of Appellate Counsel 11 Petitioner faults his appellate counsel for filing a Wende brief on appeal instead of raising 12 the ineffective assistance of his trial lawyer and his sentencing challenges. However, petitioner 13 entered a no contest plea and was not granted a certificate of probable cause to appeal these issues 14 by the trial court. See ECF No. 36-7 (explaining that appellate counsel was not able to raise any 15 issue not included in a certificate of probable cause); see also ECF No. 13-2 at 2 (California Court 16 of Appeal opinion indicating that the lack of a certificate of probable cause precluded review of 17 petitioner’s stipulated sentence as well as his other claims raised in a pro se appellate brief). 18 Therefore, petitioner cannot demonstrate that appellate counsel’s performance was deficient 19 under Strickland in light of this procedural background governing his appeal. As appellate 20 counsel’s performance was not deficient, petitioner has not demonstrated that he received 21 ineffective assistance under the two-prong standard of Strickland v. Washington, 466 U.S. 668 22 (1984). Therefore, the undersigned concludes that he is not entitled to equitable tolling on this 23 basis. 24 3. Actual Innocence 25 When asserting his actual innocence, petitioner focuses on the underlying felony 26 conviction that constituted his strike prior. See ECF No. 52 at 16 (explaining that he is “actually 27 and factually innocent of the charges that resulted in his enhanced sentencing punishment….”). 28 The court understands this claim as an argument that petitioner is actually innocent of the 1 sentence that he received rather than a claim of innocence related to the conviction. Even if 2 petitioner’s argument related to the conviction itself, however, he has not come forward with any 3 new and reliable evidence to meet the Schlup actual innocence standard. See Schlup v. Delo, 513 4 U.S. 298, 329 (1995) (emphasizing that “petitioner does not meet the threshold requirement 5 unless he persuades the district court that, in light of the new evidence, no juror, acting 6 reasonably, would have voted to find him guilty beyond a reasonable doubt.”). For this reason 7 alone, the court recommends denying petitioner equitable tolling on the basis of actual innocence. 8 D. Constitutionality of the Statute of Limitations 9 Petitioner also argues that the one-year statute of limitations violates the Suspension 10 Clause and the separation of powers doctrine. However, this argument is squarely foreclosed by 11 Ninth Circuit precedent. See Green v. White, 223 F.3d 1001, 1003-04 (9th Cir. 2000) (joining 12 other circuits and concluding that the statute of limitations does not constitute “a per se violation 13 of the Suspension Clause.”); see also Crater v. Galaza, 491 F.3d 1119, 1126, 1129 (9th Cir. 2007) 14 (rejecting argument that 28 U.S.C. § 2254(d)(1) violates the Suspension Clause as well as the 15 separation of powers doctrine). Petitioner presents no new argument that would call into question 16 these decisions. Therefore, the court finds that petitioner’s amended § 2254 application is subject 17 to the one year statute of limitations outlined in 28 U.S.C. § 2244(d) as it is not unconstitutional. 18 E. Relation Back Doctrine 19 As petitioner does not contend that claims 1 and 3-6 relate to any of his claims in the 20 original § 2254 petition, there is no legal basis upon which this court can find that they are timely 21 filed. As a result, and in light of the foregoing analysis, the undersigned recommends granting 22 respondent’s motion to dismiss these claims with prejudice as barred by the statute of limitations. 23 V. Plain Language Summary for Pro Se Party 24 The following information is meant to explain this order in plain English and is not 25 intended as legal advice. 26 After reviewing the partial motion to dismiss, the undersigned has determined that you 27 filed claims 1 and 3-6 in your amended § 2254 petition too late. As a result, it is recommended 28 that they be dismissed with prejudice and not be considered on the merits. Your ineffective 1 | assistance of trial counsel claim was timely filed and can proceed to a review of the merits. 2 If you disagree with this result, you have 14 days to explain to the court why it is wrong. 3 || Label your explanation as “Objections to Magistrate Judge’s Findings and Recommendations.” 4 || The district court judge assigned to your case will review them and render the final decision. 5 Accordingly, IT IS HEREBY RECOMMENDED that: 6 1. Respondent’s partial motion to dismiss (ECF No. 35) be granted. 7 2. Claims 1 and 3-6 of the first amended federal habeas corpus petition (ECF No. 33) be 8 dismissed with prejudice as barred by the statute of limitations. 9 3. This matter be referred back to the magistrate judge for consideration of claim two on 10 the merits. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 13 || after being served with these findings and recommendations, any party may file written 14 || objections with the court and serve a copy on all parties. Such a document should be captioned 15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 16 || objections shall be served and filed within fourteen days after service of the objections. The 17 || parties are advised that failure to file objections within the specified time may waive the right to 18 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 | Dated: August 7, 2023 □□ I / dip Ze 20 CAROLYNK. DELANEY 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 12/hunt0592.mtd.CJRA 25 26 27 28 14