1 2
4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8
9 10 LANCE WILLIAMS, Case No. CV 19-9816-PA (KK) 11 Petitioner, 12 v. FINAL REPORT AND RECOMMENDATION OF UNITED 13 RALPH DIAZ, STATES MAGISTRATE JUDGE
14 Respondent.
16 17 This Final Report and Recommendation is submitted to the Honorable Percy 18 Anderson, United States District Judge, pursuant to 28 U.S.C. § 636 and General 19 Order 05-07 of the United States District Court for the Central District of California. 20 I. 21 SUMMARY OF RECOMMENDATION 22 Petitioner Lance Williams (“Williams”) has filed a pro se Petition for Writ of 23 Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. ECF Docket No. (“Dkt.”) 24 1, Pet. Respondent filed a Motion to Dismiss (“Motion”) arguing the Petition is 25 untimely. Dkt. 30. Williams did not file an Opposition (“Opposition”). For the 26 reasons stated below, the Court recommends GRANTING Respondent’s Motion. 27 /// 1 II. 2 PROCEDURAL HISTORY 3 A. STATE COURT PROCEEDINGS 4 On January 22, 2014, following a jury trial in the Los Angeles County Superior 5 Court, Williams was convicted of (1) attempted extortion in violation of section 524 6 of the California Penal Code, (2) stalking in violation of section 646.9(a) of the 7 California Penal Code, and (3) dissuading a witness in violation of section 136.1(B)(1) 8 of the California Penal Code. Dkt. 1, Pet. at 2, 11-28; Lodged Document No. 9 (“Lodg.”)1 1, Volume 2 of 2, at 115. The charges arose from statements Williams 10 1 The Court’s citations to Lodged Documents refer to documents Respondent 11 lodged in support of the Motion to Dismiss. See dkt. 31, Not. of Lodging. Respondent identifies the documents as follows: 12 1. Clerk’s Transcript, 2 Volumes, Lodg. 1 (“Lodg. 1”) 13 2. Supplemental Clerk’s Transcript (“Lodg. 2”) 14 3. Augmented Clerk’s Transcript (“Lodg. 3”) 15 4. Appellant’s Opening Brief Filed in California Court of Appeal (Case No. B255379) (“Lodg. 4”) 16 5. Respondent’s Brief Filed in California Court of Appeal (Case No. B255379) 17 (“Lodg. 5”) 18 6. Reply Brief Filed in California Court of Appeal (Case No. B255379) (“Lodg. 19 6”) 7. Opinion Filed in California Court of Appeal (Case No. B255379) (“Lodg. 7”) 20 8. Petition for Review filed in California Supreme Court (Case No. S232011) 21 (“Lodg. 8”) 22 9. Order Denying Petition for Review in California Supreme Court (Case No. 23 S232011) (“Lodg. 9”) 10. Petition for Writ of Habeas Corpus in California Court of Appeal (Case No. 24 B283912) (“Lodg. 10”) 25 11. Order Denying Petition for Writ of Habeas Corpus in California Court of 26 Appeal (B283912) (“Lodg. 11”) 27 12. Petition for Writ of Habeas Corpus in California Supreme Court (Case No. S245540) (“Lodg. 12”) 1
2 13. Order Denying Petition for Writ of Habeas Corpus in California Supreme Court (Case No. S245540) (“Lodg. 13”) 3 14. Los Angeles County Superior Court Minute Order Recording Receipt of 4 Petition for Writ of Habeas Corpus (“Lodg. 14”) 5 15. Los Angeles County Superior Court Minute Order Recording Receipt of Petition for Writ of Habeas Corpus (“Lodg. 15”) 6 16. Los Angeles County Superior Court Minute Order Denying Motion to Vacate 7 Judgment (“Lodg. 16”) 8 17. Petition for Writ of Habeas Corpus in California Court of Appeal (Case No. 9 B289973) (“Lodg. 17”) 18. Order Denying Petition for Writ of Habeas Corpus in California Court of 10 Appeal (Case No. B289973) (“Lodg. 18”) 11 19. Petition for Writ of Habeas Corpus in California Court of Appeal (Case No. 12 B290149) (“Lodg. 19”) 13 20. Order Denying Petition for Writ of Habeas Corpus in California Court of Appeal (Case No. B290149) (“Lodg. 20”) 14 21. Petition for Writ of Habeas Corpus in California Supreme Court (Case No. 15 S249348) (“Lodg. 21”) 16 22. Order Denying Petition for Writ of Habeas Corpus in California Supreme Court (Case No. S249348) (“Lodg. 22”) 17 23. Petition for Writ of Habeas Corpus in California Supreme Court (Case No. 18 S249821) (“Lodg. 23”) 19 24. Order Denying Petition for Writ of Habeas Corpus in California Supreme Court (Case No. S249821) (“Lodg. 24”) 20 25. Los Angeles County Superior Court Minute Order Denying Request for 21 Subpoena (“Lodg. 25”) 22 26. Petition for Writ of Certiorari in United States Supreme Court (Case No. 18- 23 8533) (“Lodg. 26”) 27. Order Denying Petition for Writ of Certiorari in United States Supreme Court 24 (Case No. 18-8533) (“Lodg. 27”) 25 28. Los Angeles County Superior Court Minute Order Noting Filing of Habeas 26 Petition (“Lodg. 28”) 27 29. Los Angeles County Superior Court Minute Order Noting Filing of Habeas Petition (“Lodg. 29”) 1 2 30. Petition for Writ of Habeas Corpus in California Supreme Court (Case No. 3 S254050) (“Lodg. 30”) 4 31. Order Denying Petition for Writ of Habeas Corpus in California Supreme Court (Case No. S254050) (“Lodg. 31”) 5 32. Los Angeles County Superior Court Minute Order Denying Mental Health 6 Diversion (“Lodg. 32”) 7 33. Petition for Writ of Habeas Corpus in California Court of Appeal (Case No. 8 B298992) (“Lodg. 33”) 9 34. Order Denying Petition for Writ of Habeas Corpus in California Court of Appeal (Case No. B298992) (“Lodg. 34”) 10 35. Petition for Writ of Habeas Corpus in California Court of Appeal (Case No. 11 B296933) (“Lodg. 35”) 12 36. Order Denying Petition for Writ of Habeas Corpus in California Court of Appeal (Case No. B296933) (“Lodg. 36”) 13 37. Petition for Writ of Habeas Corpus in California Supreme Court (Case No. 14 S256871) (“Lodg. 37”) 15 38. Order Denying Petition for Writ of Habeas Corpus in California Supreme Court (Case No. S256871) (“Lodg. 38”) 16 39. Petition for Writ of Habeas Corpus in California Supreme Court (Case No. 17 S257000) (“Lodg. 39”) 18 40. Order Denying Petition for Writ of Habeas Corpus in California Supreme 19 Court (Case No. S257000) (“Lodg. 40”) 41. Los Angeles County Superior Court Minute Order Noting Filing of Habeas 20 Petition (“Lodg. 41”) 21 42. Los Angeles County Superior Court Minute Order Denying Habeas Petition 22 (“Lodg. 42”) 23 43. Petition for Writ of Habeas Corpus in California Court of Appeal (Case No. B303387) (“Lodg. 43”) 24 44. Order Denying Petition for Writ of Habeas Corpus in California Court of 25 Appeal (Case No. B303387) (“Lodg. 44”) 26 45. Petition for Writ of Habeas Corpus in California Supreme Court (Case No. S260234) (“Lodg. 45”) 27 46. Order Denying Petition for Writ of Habeas Corpus in California Supreme 1 allegedly made in a series of text messages following a disagreement about a contract 2 involving nude modeling. Lodg. 4 at 9. 3 In a bifurcated jury trial, the jury also found true a prior conviction allegation 4 for criminal threats. Pet. at 2, 17; Lodg. 1, Volume 2 of 2, at 46, 53. The trial court 5 sentenced Williams to an aggregate prison term of thirteen years and eight months. 6 Lodg. 1, Volume 2 of 2, at 120. 7 Williams appealed his conviction in the California Court of Appeal (Case No. 8 B255379). Lodg. 4. On December 22, 2015, the California Court of Appeal affirmed 9 the judgment. Lodg. 7 at 1. 10 Williams filed a petition for review in the California Supreme Court (Case No. 11 S232011). Lodg. 8. On March 9, 2016, the California Supreme Court denied the 12 petition for review. Lodg. 9. 13 On March 20, 2016, Williams constructively filed2 a habeas petition in the Los 14 Angeles County Superior Court (Case No. LA075334) purportedly raising Grounds 15 One through Twenty-Five, as presented in the instant Petition. Pet. at 32-33; Dkt. 15 16 at 21; Lodg. 10 at 502-04. On April 20, 2016, the superior court denied the petition. 17 Pet. at 32-33; Lodg. 10 at 503-04. 18 On July 17, 2017, Williams constructively filed a habeas petition in the 19 California Court of Appeal (Case No. B283912) renewing Grounds One through 20 Twenty-Five. Lodg. 10. On July 26, 2017, the California Court of Appeal denied the 21 petition. Lodg. 11. 22 On November 10, 2017, Williams constructively filed a habeas petition in the 23 California Supreme Court (Case No. S245540) renewing Grounds One through 24 Twenty-Five. Lodg. 12. On June 13, 2018, the California Supreme Court denied the 25 petition. Lodg. 13. 26 2 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a 27 pleading to mail to court, the Court deems the pleading constructively filed on the 1 On March 2, 2018, Williams filed a second habeas petition in the Los Angeles 2 County Superior Court (Case No. LA075334-01) raising Grounds Twenty-Six and 3 Twenty-Seven as alleged in the instant Petition. Pet. at 39. On April 25, 2018, the 4 superior court denied the petition. Pet. at 40. 5 On May 10, 2018, Williams constructively filed a second habeas petition in the 6 California Court of Appeal (Case No. B289973), renewing Grounds Twenty-Six and 7 Twenty-Seven. Lodg. 17 at 3-7. On May 16, 2018, the California Court of Appeal 8 summarily denied the petition. Lodg. 18. 9 On June 30, 2018, Williams constructively filed a habeas petition in the 10 California Supreme Court (Case No. S249821), renewing Grounds Twenty-Six and 11 Twenty-Seven. Lodg. 23. On November 14, 2018, the California Supreme Court 12 denied the petition. Lodg. 24. 13 On January 31, 2019, Williams constructively filed a certiorari petition in the 14 United States Supreme Court (Case No. 18-8533). Lodg. 26. On May 13, 2019, the 15 United States Supreme Court denied the petition. Lodg. 27 at 1. 16 On August 29, 2019, Williams filed a third habeas petition in the Los Angeles 17 County Superior Court, raising Ground Twenty-Eight. Lodg. 41. On October 11, 18 2019, the superior court denied the petition. Lodg. 42. 19 On December 23, 2019, Williams constructively filed a third habeas petition in 20 the California Court of Appeal (Case No. B303387) renewing his Ground Twenty- 21 Eight claim. Lodg. 43 at 7. On January 6, 2020, the California Court of Appeal 22 denied the petition. Lodg. 44. 23 On January 13, 2020, Williams constructively filed a habeas petition in the 24 California Supreme Court (Case No. S260234), raising Ground Twenty-Eight. Lodg. 25 45. On March 25, 2020, the California Supreme Court denied the petition. Lodg. 46. 26 /// 27 /// 1 B. FEDERAL COURT PROCEEDINGS 2 On November 1, 2019, Williams constructively filed the instant Petition. Dkt. 3 1, Pet. Petitioner sets forth the following twenty-eight grounds for relief from his 4 2014 conviction: 5 1. Ineffective assistance of appellate counsel, id. at 47-82, including ineffective 6 assistance of appellate counsel for failure to present an insufficient evidence 7 argument, id. at 83-121; 8 2. “The probable cause determination sheet in [the] instant case to arrest 9 Petitioner was fabricated and falsified by arresting division, in order to bring 10 Petitioner under arrest under false pretenses into custody to place no bail holds 11 on him,” id. at 122-34; 12 3. “Petitioner was never read his miranda rights, he was denied his 6th 13 amendment right to counsel at his interrogation, he was threatened and given a 14 promise of release if he made statement by detective Timo Illig,” id. at 135-36; 15 4. “Hearsay statement by Detective Timo Illig in trial court was inadmissible and 16 violated Petitioner’s 6th amendment under Confrontation Clause,” id. at 136- 17 48; 18 5. “Erroneous admission of text messages as evidence that were not ever put 19 under chain of custody or authenticated and were admittedly altered by alleged 20 victim violating Petitioner[’]s 5th and 14th amendment rights,” id. at 149-82; 21 6. “Prosecution was supplied falsified evidence authored by lead detective Timo 22 Illig that came out in trial proceedings,” id. at 183-92; 23 7. “Prosecution deprived Petitioner of an adequate notice of prosecution[’]s 24 theory of case and clarification of distinct act that constituted a public offense,” 25 id. at 193-201; 26 8. “Petitioner[’]s due process rights were violated during jury venire, jury 27 instructions, voir dire and his right to fairness under cross section was 1 9. “Erroneous denial of 17(B) motion and continuance during post-verdict after 2 Petitioner requested to know court[’]s intended sentence,” id. at 215-32; 3 10. “Prosecution failed to present a prima facie case during their case-in-chief and 4 court improperly denied Petitioner[’]s acquittal motion pursuant to penal code 5 1118.1,” id. at 233-39; 6 11. “Trial court erred by not declaring a mistrial when jury was exposed to defense 7 witness Michael Robertson incarceration for similar offenses and Robertson 8 was not properly advised of rights and procedures and 5th amendment and was 9 threatened by attorney Avery,” id. at 240-50; 10 12. Brady errors “and judge and prosecutor misconduct,” id. at 251-82; 11 13. “Petitioner was prejudiced and surprised by not being given opportunity to 12 prepare for rebuttal evidence witness Steven Garcia called by prosecution[.] 13 [T]his denied Petitioner a fair trial and violated Petitioner’s rights as well as the 14 denial of a requested continuance to prepare against this rebuttal,” id. at 283- 15 85; 16 14. “Petitioner[’]s equal protection rights were denied due to requesting transcript 17 of trial due to mental health disabilities for the prep[a]ration of new trial 18 motion that was never started, finished, presented or ruled on before the court 19 rendered judgment violating 14th amendment,” id. at 286-331; 20 15. “Petitioner was denied opportunity to present witnesses and a defense and 21 secure post-conviction counsel to prepare new trial motion,” id. at 332-358, 22 dkt. 1-1 at 1-28; 23 16. “Multiple punishment was error pursuant to penal code 654,” dkt. 1-1 at 29- 24 39; 25 17. “Newly discovered evidence being presented to prove Petitioner was 26 prejudice[d] by deliberate alterations of people[’]s exhibit 1 (The Contract),” id. 27 at 40-57; 1 18. “Petitioner recently discovered he was provided inaccurate information by his 2 private investigator regarding address and phone number to phone carriers of 3 numbers Petitioner was approved to subpoena for evidence at trial that never 4 showed up,” id. at 58-88; 5 19. “Petitioner[’]s non-statutory motion to dismiss was errantly denied and illegally 6 denied due to the simple fact judge disregarded motion and evidence presented 7 that proved a factual innocence that was new evidence,” id. at 89-94; 8 20. “The trial court erred in allowing people[’]s witness David Tika to testify as an 9 expert and discovery of NEW EVIDENCE in light of his testimony,” id. at 95- 10 119; 11 21. “Brady violation by D.A. O’Hanlon and Newly Discovered Evidence obtained 12 Feb[r]uary 17th, 2016 that goes to the weight of arguments in Grounds 1, 1A 13 and 12,” id. at 120-37; 14 22. “Petitioner’s 6th amendment right to counsel was violated when court denied 15 his request for counsel for probation violation hearing on probable cause,” id. 16 at 138-40; 17 23. “Petitioner challenges sentence enhancement pursuant to Lackawanna 18 exceptions,” id. at 141-91; 19 24. “Newly Discovered Evidence being actual physical cell phone that the alleged 20 text were sent from that victim Sumiya Islam claimed to have received has been 21 recovered and is available to review, Petitioner[’]s sentence is cruel and unusual 22 punishment violating his 8th amendment,” id. at 192-95; 23 25. “Petitioner[’]s non-statutory motion to set-aside information on all counts and 24 Petitioner[’]s motion to dismiss counts 1, 2, 3, 4, were denied by trial court in 25 error and abuse of discretion,” id. at 196; 26 26. “Pursuant to Senate Bill 142 Petitioner is entitled to resentence due to his 27 severe mental illnesses he has a long standing history of and had prior to and at 1 27. “Petitioner erroneously given a 5 year enhancement added to his sentence 2 pursuant to penal code 667(a)(1) by trial court,” id. at 237; and 3 28. “‘Newly Discovered Evidence’ Court error in Petitioner[’]s bifurcated prior trial 4 jury instruction and denial of evidence petitioner requested for bifurcated trial 5 and denial of Petitioner[’]s requested sua sponte jury instructions and court 6 error not implementing sua sponte instruction making bifurcated trial 7 prejudicial and unfair in violation of petitioner[’]s 5th, 6th, and 14th 8 amendments,” id. at 238-65.3 9 On November 22, 2019, the Court issued an Order to Show Cause Why this 10 Action Should Not Be Dismissed as Untimely. Dkt. 6. Williams filed a Response to 11 the Order to Show Cause, arguing he is entitled to a later trigger date of the 12 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) one-year 13 limitations period and is entitled to equitable and statutory tolling. Dkt. 15. 14 On August 5, 2020, Respondent filed the instant Motion arguing the Petition 15 should be dismissed as untimely. Dkt. 30. Williams did not file an Opposition. 16 On December 30, 2020, the Court issued a Report and Recommendation that 17 the Petition be dismissed as untimely. Dkt. 39. 18 On June 15, 2021, Williams constructively filed Objections to the Report and 19 Recommendation, arguing Williams should be afforded an opportunity to file an 20 Opposition to Respondent’s Motion4 and the Petition is timely.5 Dkt. 49. 21
22 3 Petitioner noted Ground 28 had not been fully exhausted in state court. Pet., dkt. 1- 1 at 238. 23 4 To the extent Williams seeks additional time to file an Opposition, the Court previously granted Williams’ request for a sixty-day extension of time to file an 24 Opposition. Dkt. 36. In total, Williams was permitted ninety days to file an Opposition, but failed to do so. See dkts. 33, 36. Under these circumstances, any 25 further request for additional time is not warranted and is, therefore, DENIED. 26 5 In his Objections to the Report and Recommendation, Williams repeats the arguments set forth in his Response to the Court’s November 22, 2019 Order to 27 Show Cause that (1) the Petition was filed within AEDPA’s one-year limitations period, (2) Williams is entitled to a later trigger date, (3) Williams is entitled to 1 The Court herein issues a Final Report and Recommendation addressing 2 Williams’ Objections in Section III. A. and footnotes 4 and 5. 3 III. 4 DISCUSSION 5 A. WILLIAMS’ FAILURE TO FILE AN OPPOSITION IS DEEMED AS 6 CONSENT TO GRANTING RESPONDENT’S MOTION 7 1. Applicable Law 8 “The Court may decline to consider any memorandum or other document not 9 filed within the deadline set by order or local rule. The failure to file any required 10 document, or the failure to file it within the deadline may be deemed consent to the 11 granting or denial of the motion[.]” See L.R. 7-12; Greta v. Gonzalez, No. CV 11- 12 06032 JVS RZ, 2012 WL 1439537, at *1-2 (C.D. Cal. Mar. 6, 2012), report and 13 recommendation adopted, 2012 WL 1439534 (C.D. Cal. Apr. 25, 2012) (finding where 14 petitioner has failed to submit an opposition to respondent’s motion to dismiss the 15 petition as untimely, the court should exercise its discretion to deem petitioner’s non- 16 opposition as his consent to granting the motion). 17 2. Analysis 18 Here, Williams did not file an Opposition to the Motion. In his Objections to 19 the original Report and Recommendation, Williams argues the lack of access to the 20 law library, lockdowns, quarantining due to COVID-19, confiscation of his legal 21 materials, placement in the administrative segregation unit, and a transfer to a 22 different institution prevented him from filing an Opposition to the Motion. Dkt. 49 23 at 1-4. Williams, however, concedes he received Respondent’s Motion between 24 August 5, 2020 and August 25, 2020 and was able to file pleadings, including requests 25 for an extension of time to file an Opposition on August 25, 2020 and a request for 26 appointment of counsel on October 13, 2020. Dkt. 49 at 2-3; see also dkts. 35, 37. 27 1 Moreover, the Court granted Williams ninety days to file an Opposition to 2 Respondent’s Motion. Dkts. 33, 36. Accordingly, the Court construes Williams’ 3 failure to file a timely opposition as consent to granting the Motion. Additionally, as 4 discussed below, in considering the merits of the Motion, the Court finds the Petition 5 subject to dismissal as untimely. 6 B. THE PETITION WAS FILED AFTER AEDPA’S ONE-YEAR 7 LIMITATIONS PERIOD 8 1. Applicable Law 9 AEDPA “sets a one-year limitations period in which a state prisoner must file a 10 federal habeas corpus petition.” Thompson v. Lea, 681 F.3d 1093, 1093 (9th Cir. 11 2012) (citation omitted). Ordinarily, the limitations period runs from the date on 12 which the prisoner’s judgment of conviction “became final by the conclusion of direct 13 review or the expiration of the time for seeking such review[.]” 28 U.S.C. § 2244(d)(1) 14 (“Section 2244(d)(1)”). “When, on direct appeal, review is sought in the state’s 15 highest court but no petition for certiorari to the United States Supreme Court is filed, 16 direct review is considered to be final when the certiorari petition would have been 17 due, which is ninety days after the decision of the state’s highest court.” Porter v. 18 Ollison, 620 F.3d 952, 958-59 (9th Cir. 2010) (citations omitted). 19 2. Analysis 20 Williams filed the Petition after April 24, 1996, the effective date of AEDPA. 21 See dkt. 1. The requirements for habeas relief set forth in AEDPA, therefore, apply. 22 Soto v. Ryan, 760 F.3d 947, 956-57 (9th Cir. 2014). 23 Williams’ conviction became final on June 7, 2016, i.e., ninety days after the 24 California Supreme Court denied Williams’ petition for review on March 9, 2016. 25 Porter, 620 F.3d at 958-59. AEDPA’s one-year limitations period commenced the 26 next day, June 8, 2016, and expired on June 8, 2017. 28 U.S.C. § 2244(d)(1). 27 Williams, however, did not constructively file the instant Petition until November 1, 1 2019. Pet. at 267. Thus, in the absence of a later trigger date or any applicable tolling, 2 the Petition is untimely by over two years. Thompson, 681 F.3d at 1093. 3 C. WILLIAMS IS NOT ENTITLED TO A LATER TRIGGER DATE 4 1. Applicable Law 5 Pursuant to Section 2244(d)(1), there are three situations where a petitioner 6 may be entitled to a later trigger date of the one-year limitation period beyond the date 7 of his conviction becoming final. 28 U.S.C. § 2244(d)(1). First, under Subsection (B), 8 if a state action prevented a petitioner from filing a federal habeas claim in violation of 9 the Constitution or laws of the United States, the limitations period begins to run on 10 “the date on which the impediment to filing an application created by State action . . . 11 is removed[.]” 28 U.S.C. § 2244(d)(1)(B). Second, under Subsection (C), if a right has 12 been newly recognized by the Supreme Court and made retroactively applicable to 13 cases on collateral review, the limitations period begins to run on the “date on which 14 the constitutional right asserted was initially recognized by the Supreme Court[.]” 28 15 U.S.C. § 2244(d)(1)(C). Third, under Subsection (D), if a petitioner brings newly- 16 discovered claims, the limitations period begins to run on “the date on which the 17 factual predicate of the claim or claims presented could have been discovered through 18 the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). However, “AEDPA’s one- 19 year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application 20 on an individual basis.” Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012). A 21 different triggering date, therefore, may apply to each claim in a petition. Id. 22 “The statute of limitations begins to run under § 2244(d)(1)(D) when the 23 factual predicate of a claim ‘could have been discovered through the exercise of due 24 diligence,’ not when it actually was discovered.” Ford v. Gonzalez, 683 F.3d 1230, 25 1235 (9th Cir. 2012) (emphasis added); see also Juniors v. Dexter, No. 07-1377-DMG 26 (AGR), 2011 WL 1334422 at *2 n.3 (C.D. Cal. Jan. 14, 2011) (“[T]he statute starts 27 running on the date when the petitioner knew or with the exercise of due diligence 1 the petitioner obtains evidence to support his claim.”) (citation omitted). “Time 2 begins when the prisoner knows (or through diligence could discover) the important 3 facts, not when the prisoner recognizes their legal significance.” Hasan v. Galaza, 254 4 F.3d 1150, 1154 n.3 (9th Cir. 2001) (citation omitted). In addition, “[t]he question is 5 when petitioner had the essential facts underlying his claim, not when he obtained 6 additional evidence supporting his claim.” Coley v. Ducart, No. 2:16-1168-AC (P), 7 2017 WL 714304, at *4 (E.D. Cal. Feb. 23, 2017) (emphasis added). 8 2. Analysis 9 Williams is not entitled to a trigger date beyond the date on which his 10 conviction became final. See 28 U.S.C. 2244(d)(1). 11 First, Williams does not show he is entitled to a later trigger date under 12 Subsection (B) because he does not identify any state action that prevented him from 13 filing a federal habeas claim in violation of the Constitution or laws of the United 14 States. 28 U.S.C. § 2244(d)(1)(B). 15 Second, Williams does not show he is entitled to a later trigger date under 16 Subsection (C) because he does not identify a newly-recognized right made 17 retroactively available to cases on collateral review. 28 U.S.C. § 2244(d)(1)(C). 18 Finally, to the extent Williams may argue he is entitled to a later trigger date for 19 newly-discovered claims under Subsection (D), he has not identified any evidence that 20 was not, or could not have been, discovered before June 7, 2016 when his conviction 21 became final. 28 U.S.C. § 2244(d)(1)(D). Williams appears to claim “new evidence” 22 in connection with Grounds 17, 18, 20, 21, 24, and 28, but fails to justify a later trigger 23 date as discussed below. 24 In Grounds 17 and 20, the “new evidence” described is a more legible version 25 of the contract Williams entered into with the victim, than the version that was 26 submitted to the jury. See Pet., dkt. 1-1 at 40-57, 95-119. It appears Williams could 27 have obtained a copy of his own contract at any time prior to his conviction 1 proceedings prevented him from obtain[in]g” the contract fails to explain how he 2 eventually obtained the contract or why he was unable to obtain the contract between 3 the date of his conviction on January 22, 2014 and the date his conviction became 4 final two and a half years later on June 7, 2016. See id. at 40. 5 In Ground 18, Williams argues he “recently discovered he was provided 6 inaccurate information by his private investigator” in connection with subpoenas the 7 investigator had served on various relevant phone carriers. Id. at 58. While not 8 entirely clear, it appears Williams is arguing the subpoenas were served on the wrong 9 carriers, resulting in documents not being produced at trial. The documents attached 10 to the Petition, however, show Williams was advised in November 2013 that the 11 subpoenas were served on the correct carriers and that it was Williams who filled out 12 the subpoenas that were served. Id. at 76-86. It is, therefore, unclear what exactly 13 Williams has recently discovered, when he discovered it, and why he would not have 14 been aware of it at the time he filled out the subpoenas. 15 In Ground 21, the “new evidence” is a CD of witness interviews Williams 16 states was “obtained Feb[r]uary 17th, 2016,” well before his conviction became final. 17 Id. at 120. 18 In Ground 24, the “new evidence” is the “actual physical cell phone” from 19 which the offending text messages were sent to the victim. Id. at 192. Williams 20 argues the texts on the actual phone will show he was convicted through “perjury on 21 the part of the prosecution witnesses,” id., and will “rebut defense argument that 22 petitioner was in possession of phone when text were sent,” dkt. 15 at 11. Williams 23 claims he was “not able to recover [the phone] at anytime sooner than now due to his 24 errant arrest and denial of bail that dislodged him from being able to make contact 25 with a number of persons.” Pet., dkt. 1-1 at 192. This conclusory argument fails to 26 state when Petitioner obtained the phone, what the material differences are between 27 the information on the phone and the witnesses’ testimony at trial, and why Williams 1 2014 and the date his conviction became final two and a half years later on June 7, 2 2016. 3 Finally, in Ground 28, Williams appears to argue he has newly discovered a 4 claim involving the denial of his requested jury instruction and evidence during the 5 bifurcated portion of his trial. See id. at 238-65. Williams specifically argues because 6 he discovered the factual predicate for the claim on August 29, 2019, that date should 7 be the new trigger date for Ground 28. Dkt. 15 at 13. The time, however, “begins 8 when the prisoner knows (or through diligence could discover) the important facts, 9 not when the prisoner recognizes their legal significance.” Hasan, 254 F.3d at 1154 10 n.3. The relevant time for Ground 28, therefore, appears to be when his jury 11 instruction and evidence were denied. Thus, at the latest, the relevant date was when 12 the jury was instructed during Williams’ trial. 13 Hence, Williams has not shown he is entitled to a later trigger date for any of 14 the Grounds set forth in the Petition. 15 D. STATUTORY TOLLING DOES NOT RENDER THE PETITION 16 TIMELY 17 1. Applicable law 18 “A habeas petitioner is entitled to statutory tolling of AEDPA’s one-year 19 statute of limitations while a ‘properly filed application for State post-conviction or 20 other collateral review with respect to the pertinent judgment or claim is pending.’” 21 Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012) (quoting 28 U.S.C. § 2244(d)(2) 22 (“Section 2244(d)(2)”)). Statutory tolling does not extend to the time between the 23 date on which a judgment becomes final and the date on which the petitioner files his 24 first state collateral challenge because during that time, there is no case “pending.” 25 Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). 26 A petitioner, however, is entitled to statutory tolling (i.e. gap tolling) for 27 reasonable periods between the filing of properly filed applications for state post- 1 petitioner who unreasonably delays in filing a state habeas petition would not be 2 granted the benefit of statutory [gap] tolling because the petition would not be 3 considered ‘pending’ or ‘properly filed’ within the meaning of § 2244(d)(2).” Id. at 4 780 (citations omitted). If a state court denies the petitioner’s state habeas petition 5 and the petitioner fails to file a subsequent state habeas petition within a reasonable 6 time period, the petitioner’s unreasonable delay precludes statutory tolling. See Evans 7 v. Chavis, 546 U.S. 189, 201 (2006) (holding that absent a clear indication to the 8 contrary by the state legislature or state court, an unexplained and unjustified gap 9 between filings of six months was “unreasonable”). Moreover, “[S]ection 2244(d) 10 does not permit the reinitiation of the limitations period that has ended before the 11 state petition was filed.” Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) 12 (citation omitted). 13 2. Analysis 14 Here, the Los Angeles County Superior Court denied Williams’ first state 15 habeas petition on April 20, 2016. Pet. at 3-4, 32-33. Williams, however, did not file 16 his next state habeas petition in the California Court of Appeal until July 17, 2017. 17 Lodg. 10. The Court finds this nearly fifteen-month delay unreasonable. See Evans, 18 546 U.S. at 201. Williams, therefore, is not entitled to gap tolling for the period 19 between the denial of his superior court habeas petition on April 20, 2016 and the 20 filing of his California Court of Appeal habeas petition on July 17, 2017. 21 In addition, because AEDPA’s one-year statute of limitations expired on June 22 8, 2017, Petitioner is not entitled to statutory tolling during the pendency of his 23 California Court of Appeal habeas petition filed on July 17, 2017 or any other 24 subsequent state petition. Ferguson, 321 F.3d at 823. Hence, statutory tolling does 25 not render the Petition timely. See id. 26 /// 27 /// 1 E. WILLIAMS IS NOT ENTITLED TO EQUITABLE TOLLING 2 1. Applicable law 3 In addition to the statutory tolling provided for by Section 2244(d)(2), the 4 “AEDPA limitations period may be tolled” when it is “equitably required.” Doe v. 5 Busby, 661 F.3d 1001, 1011 (9th Cir. 2011) (citations omitted). “Generally, a litigant 6 seeking equitable tolling bears the burden of establishing two elements: (1) that he has 7 been pursuing his rights diligently, and (2) that some extraordinary circumstance stood 8 in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Forbess v. 9 Franke, 749 F.3d 837, 839 (9th Cir. 2014) (noting courts may grant equitable tolling 10 only where “‘extraordinary circumstances’ prevented an otherwise diligent petitioner 11 from filing on time” (citation omitted)). Petitioner must prove the alleged 12 extraordinary circumstance was a proximate cause of his untimeliness and the 13 extraordinary circumstance made it impossible to file a petition on time. Ramirez v. 14 Yates, 571 F.3d 993, 997 (9th Cir. 2009); Roy v. Lampert, 465 F.3d 964, 973 (9th Cir. 15 2006) (citing Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003)). The 16 “threshold necessary to trigger equitable tolling [under AEDPA] is very high[.]” Bills 17 v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (internal quotation marks and citation 18 omitted). The petitioner “bears a heavy burden to show that [he] is entitled to 19 equitable tolling, lest the exceptions swallow the rule[.]” Rudin v. Myles, 781 F.3d 20 1043, 1055 (9th Cir. 2014) (internal quotation marks and citation omitted). 21 Moreover, a “stop clock” approach to equitable tolling, whereby a petitioner 22 may simply add the time during which he was impeded by an extraordinary 23 circumstance to extend the period of the statute of limitations, is not appropriate. 24 Smith v. Davis, 953 F.3d 582, 586 (9th Cir. 2020) (en banc), cert. denied, No. 20-5366, 25 2020 WL 6829092 (2020). Rather, a petitioner “must show that he has been 26 reasonably diligent in pursuing his rights not only while an impediment to filing 27 caused by an extraordinary circumstance exited, but before and after as well, up to the 1 2. Analysis 2 Williams argues he is entitled to equitable tolling “in the gaps between his 3 filings to each court[.]” Dkt. 15 at 6. In total, Williams appears to argue he is entitled 4 to 1,209 days of equitable tolling during the following time periods: (1) 463 days from 5 April 20, 2016 through July 26, 2017; (2) 114 days between July 26, 2017 through 6 November 16, 2017; and (3) 632 days between March 1, 2018 and November 22, 7 2019. Id. at 6-7. Williams claims various issues support equitable tolling during these 8 time periods, including receiving delayed notice of state habeas proceedings, a limited 9 period of administrative segregation, limited periods of lack of access to legal papers, 10 mental impairments, lack of counsel, limited law library access, and prison transfers. 11 Id. at 2-9. 12 Williams’ claim to equitable tolling fails. First, Williams asks this Court to apply 13 the “stop clock” approach the Ninth Circuit recently rejected in Smith. 953 F.3d at 14 586. Moreover, any claim for equitable tolling is belied by the fact Williams filed six 15 state habeas petitions between July 17, 2017 and November 1, 2019, the date he filed 16 the instant Petition. See pet. at 39; lodgs. 10, 12, 17, 23, 41. Williams also filed 17 numerous other substantive pleadings during this time period, including a petition for 18 writ of certiorari in the United States Supreme Court. See lodgs. 16, 19, 20, 21, 22, 25, 19 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40. Williams offers no reason why he 20 was able to file state petitions and other substantive pleadings during this time but 21 unable to file the instant federal Petition. See Ramirez, 571 F.3d at 998 (finding even 22 though petitioner claims he was “unable to prepare” his habeas petition due to limited 23 library and copier access, petitioner filed a lengthy and well-researched motion in 24 federal court and successful discovery motion and thus was not entitled to equitable 25 relief); Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (finding petitioner was 26 not entitled to equitable tolling for mental impairments during period in which he was 27 able to file state habeas petitions raising the same arguments he presented in his 1 | 2426175, at *2 (D. Ariz. May 30, 2018), certificate of appealability denied, 2018 WL 2 | 8665264 (9th Cir. Nov. 5, 2018) (finding petitioner provided “no rationale for why he 3 | was able to file numerous state petitions, but not his federal petition” and was not 4 | entitled to equitable tolling). In fact, the claims in the instant Petition largely mirror 5 | those filed in state court. Williams, therefore, fails to meet his “heavy burden” of 6 | demonstrating an extraordinary circumstance was the proximate cause of his 7 | untimeliness and the extraordinary circumstance made it impossible to file the Petition 8 | on time. Rudin, 781 F.3d at 1055. 9 Hence, equitable tolling does not render the Petition timely. 10 IV. 11 RECOMMENDATION 12 IT IS THEREFORE RECOMMENDED that the Court issue an Order: (1) 13 | accepting this Final Report and Recommendation; (2) GRANTING the Motion to 14 | Dismiss the Petition as untimely; and (3) DISMISSING the Petition with prejudice. 15 16 | Dated: July 19, 2021 aly 17 HONORABLE KENLY KIYA KATO 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28