Martinez v. The People of the State of California

• Court: District Court, S.D. California
• Decided: June 7, 2023
• Docket: 3:21-cv-02106
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOAQUIN M. MARTINEZ, Case No.: 21cv2106-JLS(LR)

12 Petitioner, REPORT AND 13 v. RECOMMENDATION FOR ORDER: 14 KATHLEEN ALLISON, et al.,

15 Respondents. (1) GRANTING RESPONDENTS’ MOTION TO DISMISS 16 PETITIONER’S HABEAS CORPUS 17 PETITION [ECF No. 20]

18 (2) DENYING PETITIONER’S 19 MOTIONS TO APPOINT COUNSEL AND MOTION FOR EXTENSION 20 OF TIME [ECF Nos. 17, 18, 19] 21 22 This Report and Recommendation is submitted to United States District Judge 23 Janis L. Sammartino pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and 24 HC.2 of the United States District Court for the Southern District of California. 25 Petitioner Joaquin M. Martinez, a state prisoner proceeding pro se, constructively filed a 26 Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 27 (“Petition”) on July 14, 2022, challenging his conviction for assault with a deadly 28 1 weapon. (See Second Am. Pet., ECF No. 8 (“SAP”).) On January 27, 2023, 2 Respondents filed a Motion to Dismiss the Petition, arguing that the Petition is untimely 3 and unexhausted. (See Resp’t’s Mot. to Dismiss, ECF No. 20.) Petitioner filed a 4 response to Respondents’ Motion to Dismiss on February 17, 2023 (ECF No. 22) as well 5 as two motions to appoint counsel (ECF Nos. 17, 19) and a motion for extension of time 6 before Respondents’ Motion to Dismiss was filed. (ECF No. 18.) For the reasons 7 discussed below, the Court RECOMMENDS that District Judge Sammartino GRANT 8 Respondents’ Motion to Dismiss (ECF No. 20) and DENY Petitioner’s other 9 miscellaneous motions (ECF Nos. 17, 18, 19) without prejudice. 10 I. RELEVANT BACKGROUND 11 Petitioner pled guilty to assault with a deadly weapon in February of 2012. 12 (Lodgment 1 at 1-3.) On March 15, 2012, pursuant to Petitioner’s plea, the San Diego 13 County Superior Court sentenced him to 12 years in prison, to run consecutively to a 14 sentence that Petitioner was already serving. (See id.; Lodgment 3; Lodgment 4 at 1.) 15 Petitioner did not appeal this conviction. (SAP at 2-3; Mem. in Supp. of Resp’ts’ Mot. to 16 Dismiss, ECF No. 20-1 (“MTD”) at 3 (“[Petitioner] did not appeal his conviction”).) 17 Petitioner likewise did not file any state petitions for collateral relief related to this 18 conviction.3 19

20 21 1 Under the “mailbox rule,” a pro se prisoner’s habeas petition is constructively filed when he gives it to prison authorities for mailing. See Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010). A court 22 generally deems a habeas petition filed on the day it is signed. See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). This is because the Court assumes that the petitioner turned the petition over to 23 prison authorities for mailing that day. See Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014). Here, the Petition was signed on July 14, 2022, despite appearing on the Court’s docket on August 22, 24 2022. (See SAP at 15.) 25 2 Throughout this Order and for ease of consistency and reference, the Court will cite to each document 26 in the record using both the number assigned to the document and the page number automatically generated by its Case Management/Electronic Case File system (“ECF”). 27 3 Petitioner asserts his belief that he filed a habeas corpus petition in state court related to his conviction 28 1 Petitioner constructively filed his first Petition for Writ of Habeas Corpus in this 2 Court related to his assault with a deadly weapon conviction on December 9, 2021.4 (See 3 ECF No. 1.) The Court dismissed that petition without prejudice and with leave to 4 amend because Petitioner failed to pay the filing fee or move to proceed in forma 5 pauperis. (See ECF No. 3.) 6 On May 13, 2022, Petitioner constructively filed a First Amended Petition for Writ 7 of Habeas Corpus (“FAP”), along with a Motion to Proceed in Forma Pauperis. (See 8 ECF Nos. 5 & 6.) The Court granted Petitioner’s motion to proceed in forma pauperis, 9 but dismissed the FAP without prejudice and without leave to amend because Petitioner 10 had failed to allege that he had exhausted his state judicial remedies. (See ECF No. 7.) 11 Petitioner filed the instant Second Amended Petition on July 14, 2022, raising 12 several grounds for relief, including: (1) his limited mental capacity; (2) newly 13 discovered evidence; and (3) ineffective assistance of counsel. (See SAP at 6-10.) 14 Additionally, before Respondents filed their Motion to Dismiss, Petitioner filed two 15 motions for appointment of counsel (ECF Nos. 17 & 19) and a motion for an extension of 16 time. (ECF No. 18.) Although difficult to read, each of these motions appear to argue 17 that Petitioner has not been able to access the law library at the institution that he is 18 housed in, and that his learning disability is preventing him from effectively litigating this 19 action. (See, e.g., ECF No 17-1 (attaching exhibits related to Petitioner’s education level 20 and prison TABE score); ECF No 18 at 6-13 (attaching prison grievance forms related to 21 22 23 found a record of any such petition, believing that Petitioner may have confused the instant matter with another conviction that he did litigate in state court. (See MTD at 3 n.3.) The Court has independently 24 checked the California Court of Appeal’s website and has not been able to locate any petitions related to 25 the instant conviction. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (noting that court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if 26 those proceedings have a direct relation to matters at issue.’”) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). 27 4 The Court applies the mailbox rule to construe the filing date of the previous petitions in this case as 28 1 Petitioner’s lack of access to the law library).) Respondents filed their Motion to Dismiss 2 on January 27, 2023 (see ECF No. 20) and Petitioner filed a Response on February 15, 3 2023. (ECF No. 22.) 4 II. DISCUSSION 5 A. Respondents’ Motion to Dismiss 6 Respondents’ Motion to Dismiss asserts that the Petition should be dismissed 7 because it was filed well after the limitations period and is wholly unexhausted. (See 8 MTD at 2.) Additionally, Respondents argue that Petitioner is neither entitled to a later 9 start date of the statute of limitations, nor statutory or equitable tolling. (See id. at 5-8.) 10 Therefore, Respondents contend that the Petition should be dismissed with prejudice. 11 (See id. at 8-10.) 12 Petitioner’s Response—although difficult to understand—appears to argue that he 13 should be entitled to equitable tolling under Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010). 14 (See ECF No. 22 at 1.) Additionally, Petitioner asserts that the prison where he is housed 15 has not given him access to the law library or granted his requests for copies of his legal 16 materials. (See id. at 3.) 17 1. Applicable Law 18 A federal district court may not address a petition for writ of habeas corpus unless 19 the petitioner has exhausted state remedies with respect to each of the issue(s) presented. 20 28 U.S.C. § 2254(b)(1)(A); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005) 21 (“We may review the merits of Petitioner’s habeas petition only if he exhausted state 22 court remedies”). Generally, to satisfy the exhaustion requirement, a petitioner must 23 “‘fairly present[]’ his federal claim to the highest state court with jurisdiction to consider 24 it,” or “demonstrate[] that no state remedy remains available.” Johnson v. Zenon, 88 25 F.3d 828, 829 (9th Cir. 1996) (citing Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. 26 Connor, 404 U.S. 270, 275 (1971)). A state prisoner seeking relief with respect to a 27 California conviction is required to fairly present his federal claims to the California 28 Supreme Court. See Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998). 1 The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) sets forth a one- 2 year limitation period for filing a federal habeas petition and specifies that the period runs 3 from the latest of the following dates: 4 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 5 seeking such review; 6 (B) the date on which the impediment to filing an application 7 created by State action in violation of the Constitution or laws of 8 the United States is removed, if the applicant was prevented from filing by such State action; 9

10 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been 11 newly recognized by the Supreme Court and made retroactively 12 applicable to cases on collateral review; or

13 (D) the date on which the factual predicate of the claim or claims 14 presented could have been discovered through the exercise of due diligence. 15

16 28 U.S.C. § 2244(d)(1). The Court reviews the timeliness of each claim in a habeas 17 corpus petition individually. See Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 18 2012). 19 AEDPA also includes a statutory tolling provision that suspends the limitation 20 period while a properly filed application for postconviction or other collateral review is 21 pending in state court. § 2244(d)(2); see also Waldrip v. Hall, 548 F.3d 729, 734 (9th 22 Cir. 2008). An application is “pending” until it has achieved final resolution through the 23 state’s postconviction procedures. See Carey v. Saffold, 536 U.S. 214, 220 (2002). The 24 limitations period is not tolled between the time a decision becomes final on direct state 25 appeal and when a state collateral challenge is filed because no case is “pending” during 26 that interval. Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. 2007). 27 In addition to statutory tolling, equitable tolling of the one-year limitations period 28 may be applied to federal habeas corpus petitions in appropriate cases. See Holland v. 1 Florida, 560 U.S. 631, 645 (2010). Determining whether equitable tolling is warranted is 2 a fact-specific inquiry. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001). To 3 apply equitable tolling, the petitioner must show (1) that he has pursued his rights 4 diligently and (2) some extraordinary circumstance stood in his way and prevented timely 5 filing. See Holland, 560 U.S. at 649. Additionally, “[t]he petitioner must show that ‘the 6 extraordinary circumstances were the cause of his untimeliness and that the extraordinary 7 circumstances made it impossible to file a petition on time.’” Porter v. Ollison, 620 F.3d 8 952, 959 (9th Cir. 2010) (quoting Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009)). 9 Equitable tolling is not available in most cases, and “the threshold necessary to trigger 10 equitable tolling under AEDPA is very high, lest the exceptions swallow the rule.” 11 Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (internal citation omitted). For both 12 statutory and equitable tolling, a petitioner bears the burden of demonstrating that 13 AEDPA’s limitation period should be tolled. See Pace v. DiGuglielmo, 544 U.S. 408, 14 418 (2005) (discussing equitable tolling); Zepeda v. Walker, 581 F.3d 1013, 1019 (9th 15 Cir. 2009) (discussing statutory tolling). 16 2. Analysis 17 a. Exhaustion of state court remedies 18 As noted above, a petitioner in state custody who wishes to collaterally challenge a 19 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 20 2254(b)(1). The exhaustion doctrine is based on comity with state court and gives the 21 state court the initial opportunity to correct the state’s alleged constitutional violations. 22 See Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988). Where none of the 23 petitioner’s claims has been presented to the highest state court as required by the 24 exhaustion doctrine, the Court must dismiss the petition. See Raspberry v. Garcia, 448 25 F.3d 1150, 1155 (9th Cir. 2006). A court may not hold a petition in abeyance, like it 26 would be able to with a mixed petition containing both exhausted and unexhausted 27 claims, when the petition contains no exhausted claims. See id. at 1154. 28 Because Petitioner has not presented any of his claims in the instant Petition to the 1 California Supreme Court, see Section I, supra, the Court cannot proceed to the merits of 2 those claims. See, e.g., Uriostegui v. Foulk, No. 1:13–cv–00134–SKO–HC, 2013 WL 3 657879, at *4-5 (E.D. Cal. Feb. 22, 2013) (noting that a federal court cannot proceed to 4 the merits of a habeas corpus petition if its grounds for relief have not been presented to 5 the California Supreme Court). Although this would be sufficient grounds to dismiss the 6 instant Petition, the Court will nonetheless address Petitioner’s other arguments related to 7 the statute of limitations, as well as statutory and equitable tolling. 8 b. Calculating the limitations period 9 Petitioner was sentenced to twelve years in prison on March 15, 2012. (See 10 Lodgment 3.) Because Petitioner did not file any appeal, his state conviction became 11 final for the purposes of AEDPA 60 days later, on May 14, 2012. See Cal. R. Ct. 12 8.308(a); Burton v. Stewart, 549 U.S. 147, 156–57 (2007) (“petitioner's AEDPA 13 limitation period does not begin “until both his conviction and sentence ‘[become] final 14 by the conclusion of direct review or the expiration of the time for seeking such review’” 15 (emphasis in original) (quoting 28 U.S.C. § 2244(d)(1)(A))); Mendoza v. Carey, 449 F.3d 16 1065, 1067 (9th Cir. 2006) (same). Petitioner is therefore not entitled to a later 17 limitations date under § 2244(d)(1)(A). 18 Petitioner is also not entitled to a later trigger date under § 2244(d)(1)(B). 19 Although Petitioner claims that the prison where he is housed is preventing him from 20 accessing the law library and has not provided him with copies of documents that he has 21 requested (see ECF No. 22 at 3), he does not explain how this is a state-created 22 impediment imposed “in violation of the Constitution or laws of the United States.” § 23 2244(d)(1)(B); Shannon v. Newland, 410 F.3d 1083, 1088 n.4 (9th Cir. 2005) (noting that 24 petitioner must explain how “impediment” violated constitution when it was imposed). 25 Even if these obstacles could be impediments for the purpose of § 2244(d)(1)(B), 26 Petitioner makes no showing as to how he was prevented from filing his Petition, as these 27 allegations only address conduct by prison officials that occurred in 2022—more than 28 nine years after the statute of limitations expired. (See ECF No. 18 at 6-13) (attaching 1 grievance forms related to copies dated in December of 2022). Petitioner is likewise not 2 entitled to a later trigger date under § 2244(d)(1)(C), because he does not point to any 3 constitutional right that has been newly recognized by the Supreme Court and made 4 retroactively applicable to his case. 5 Nor is Petitioner entitled to a later trigger date under § 2244(d)(1)(D), which 6 provides, in relevant part, “[a] 1-year period of limitation shall apply to an application for 7 a writ of habeas corpus . . . [t]he limitation period shall run from the latest of . . . the date 8 on which the factual predicate of the claim or claims presented could have been 9 discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). This later 10 triggering date only applies when “vital facts could not have been known by the date the 11 appellate process ended.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) 12 (internal quotations and citation omitted). The “due diligence” clock starts ticking when 13 the petitioner “knows or through diligence could discover the vital facts, regardless of 14 when their legal significance is actually discovered.” Id. Each of the grounds asserted in 15 the instant Petition concern events and factual predicates that either occurred before 16 Petitioner’s guilty plea, or that Petitioner fails to show could not have been discovered 17 with the exercise of due diligence. 18 To the extent that Petitioner claims a later trigger date should apply due to newly 19 discovered evidence related to his mental capacity, the documents that Petitioner cites in 20 support of his alleged learning disability point to facts that he was or should have been of 21 aware of since before his guilty plea in March of 2012—but were not obtained until 2015 22 at the earliest. (See, e.g., ECF No 17-1 at 3 (attaching a 2015 letter noting that Petitioner 23 was part of a special education program in high school); ECF No. 19 at 7-11 (including 24 declarations from other inmates attesting to Petitioner’s incompetence dated in 2016).) 25 Presumably, Petitioner would have known he had a learning disability when he entered 26 his guilty plea in 2012 and could have accessed the information he needed to assert his 27 claims of incompetency before the limitations period lapsed. The fact that Petitioner did 28 not obtain the evidence related to his claims of mental incapacity until 2015 is irrelevant 1 to the Court’s calculation of the limitations period. See Hasan v. Galaza, 254 F.3d 1150, 2 1154-55 (9th Cir. 2001) (noting that the limitations period runs from the date the 3 petitioner could have discovered the factual predicate of his claim through the exercise of 4 due diligence, not from the date that the petitioner obtained evidentiary support for his 5 claim); see also Earls v. Hernandez, 403 F. Supp. 2d 985, 989 (C.D. Cal. 2005) (“It is the 6 actual or putative knowledge of the pertinent facts of a claim that starts the clock running; 7 the accrual of the statute of limitations does not await the collection of evidence which 8 supports the facts.”) (internal quotations omitted). 9 Additionally, Petitioner fails to show that the factual predicate for his ineffective 10 assistance of counsel and new evidence claims could not have been discovered earlier 11 with the exercise of due diligence. The Petition asserts that Petitioner’s counsel was 12 ineffective in failing to present video evidence of fraud, which a witness has “firsthand 13 knowledge” of. (See SAP at 6.) Petitioner does not state when he first discovered his 14 counsel’s failure to present the video evidence or the witness testimony which allegedly 15 corroborated the fraud that he alleges. Even assuming, however, that it was sometime 16 after May of 2012—the date his conviction became final under § 2244(d)(1)(A)—nothing 17 shows that he could not have discovered his counsel’s alleged failure had he exercised 18 due diligence. See Ford, 683 F.3d at 1235 (“The ‘due diligence’ clock starts ticking 19 when a person knows or through diligence could discover the vital facts, regardless of 20 when their legal significance is actually discovered.”). Indeed, Petitioner faults his 21 attorney for failing to utilize the facts discovered in the video evidence—which Petitioner 22 presumably knew about at the time of his guilty plea—to negotiate with prosecutors. 23 (See SAP at 6.) 24 Accordingly, the AEDPA statute of limitations in this case began to run on May 25 15, 2012, the day after Petitioner’s conviction became final, and expired one year later, 26 on May 15, 2013. See 28 U.S.C. § 2244(d)(1)(A); Corjasso v. Ayers, 278 F.3d 874, 877 27 (9th Cir. 2002) (the one-year AEDPA statute of limitations begins to run the day after the 28 conviction becomes final); see also Espinoza v. Lopez, No. 1:10–cv–01211–JLT, 2012 1 WL 2995475, at *3 (E.D. Cal. July 23, 2012) (describing the anniversary method of 2 calculating the statute of limitations under AEDPA). Unless Petitioner is entitled to 3 statutory or equitable tolling, the Petition is more than eight years late. 4 c. Statutory tolling 5 Under 28 U.S.C. § 2244(d)(2), the “time during which a properly filed application 6 for State post-conviction or other collateral review with respect to the pertinent judgment 7 or claim is pending shall not be counted toward” the one-year limitation period. In Carey 8 v. Saffold, the Supreme Court held the statute of limitations is tolled where a petitioner is 9 properly pursuing post-conviction relief, and the period is tolled between one state court's 10 disposition of a habeas petition and the filing of a habeas petition at the next level of the 11 state court system. 536 U.S. 214, 216 (2002). State petitions will nevertheless only toll 12 the one-year statute of limitations under § 2244(d)(2) if the state court explicitly states 13 that the postconviction petition was timely or was filed within a reasonable time under 14 state law. See Pace v. DiGuglielmo, 544 U.S. 408 (2005). Claims denied as untimely or 15 determined by the federal courts to have been untimely in state court will not satisfy the 16 requirements for statutory tolling. Id. Petitioner is not entitled to statutory tolling 17 because he did not file any state habeas petitions. See Section I, supra; see also Ferguson 18 v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (noting that Section 2244(d) does not 19 allow for the re-initiation of the limitations period that ended before a state petition was 20 filed). 21 d. Equitable tolling 22 AEDPA’s statute of limitations is subject to equitable tolling “in appropriate 23 cases.” Holland v. Florida, 560 U.S. 631, 645 (2010) (internal citations omitted). A 24 petitioner is entitled to equitable tolling only when he shows: “(1) that he has been 25 pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his 26 way,” preventing timely filing of his petition. Pace, 544 U.S. at 418. The “threshold 27 necessary to trigger equitable tolling (under AEDPA) is very high, lest the exceptions 28 swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). Petitioner 1 bears the burden to show an entitlement to equitable tolling. See Zepeda v. Walker, 581 2 F.3d 1013, 1019 (9th Cir. 2009). Additionally, Petitioner must show that the alleged 3 “extraordinary circumstances” were the “cause of his untimeliness.” Roy v. Lampert, 4 465 F.3d 964, 969 (9th Cir. 2006), cert denied, 549 U.S. 1317 (2007) (brackets in 5 original) (quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)). 6 Petitioner argues that he has various mental impairments, including a learning 7 disability, and specifically invokes Bills, 628 F.3d 1092 (9th Cir. 2010) in arguing that he 8 should be allowed to file his Petition despite the expiration of the statute of limitations 9 several years ago. (See, e.g., ECF No. 22 at 1 (citing Bills); ECF No. 19 at 3-12 10 (attaching records of Petitioner’s enrollment in a special education program in high 11 school as well as declarations by other inmates related to his capacity to litigate his 12 claims).) Respondents contend that Petitioner’s assertion of limited mental capacity is 13 belied by his filing of motions for postconviction relief in both state and federal court 14 related to another criminal proceeding while he “sat idle on the instant conviction.” 15 (MTD at 7-8 (citing another habeas corpus petition filed in federal court by Petitioner in 16 June of 2013).) 17 Mental incompetence can represent an extraordinary circumstance and serve as a 18 basis for equitable tolling under AEDPA in the Ninth Circuit. See Bills, 628 F.3d at 19 1100; Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003). Whether mental illness 20 warrants tolling depends on whether the petitioner’s mental illness during the relevant 21 time “constituted the kind of extraordinary circumstances beyond his control, making 22 filing impossible, for which equitable tolling is available.” Laws, 351 F.3d at 922-23. 23 The Ninth Circuit has explained that eligibility for equitable tolling due to mental 24 impairment requires a petitioner to meet a two-part test: 25 (1) First, a petitioner must show his mental impairment was an “extraordinary circumstance” beyond his control [] by 26 demonstrating the impairment was so severe that either 27 (a) petitioner was unable rationally or factually to 28 1 personally understand the need to timely file, or

2 (b) petitioner's mental state rendered him unable 3 personally to prepare a habeas petition and effectuate its filing.

4 (2) Second, the petitioner must show diligence in pursuing the 5 claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under 6 the totality of the circumstances, including reasonably available 7 access to assistance. []

8 To reiterate: the “extraordinary circumstance” of mental 9 impairment can cause an untimely habeas petition at different stages in the process of filing by preventing petitioner from 10 understanding the need to file, effectuating a filing on his own, 11 or finding and utilizing assistance to file. The “totality of the circumstances” inquiry in the second prong considers whether 12 the petitioner's impairment was a but-for cause of any delay. 13 Thus, a petitioner's mental impairment might justify equitable tolling if it interferes with the ability to understand the need for 14 assistance, the ability to secure it, or the ability to cooperate with 15 or monitor assistance the petitioner does secure. The petitioner therefore always remains accountable for diligence in pursuing 16 his or her rights. 17 Bills, 628 F.3d at 1099-1100 (internal citations omitted). As a practical matter, to 18 determine whether a petitioner is entitled to equitable tolling based on mental 19 impairment, the Court must: 20 (1) find the petitioner has made a non-frivolous showing that he 21 had a severe mental impairment during the filing period that 22 would entitle him to an evidentiary hearing; (2) determine, after considering the record, whether the petitioner satisfied his 23 burden that he was in fact mentally impaired; (3) determine 24 whether the petitioner's mental impairment made it impossible to timely file on his own; and (4) consider whether the 25 circumstances demonstrate the petitioner was otherwise diligent 26 in attempting to comply with the filing requirements.

27 Id. at 1098. 28 1 If the petition or record contains some evidence of a period of mental 2 incompetency, courts have generally required further factual development of the record. 3 See, e.g., Laws, 351 F.3d at 923-24 (discussing incompetency evaluations at the 4 petitioner’s trial); Sran v. Brazelton, No. 1:12–cv–01304 MJS HC, 2013 WL 1866955, at 5 *6 (E.D. Cal. Apr. 17, 2013) (further factual development of the record required when the 6 petitioner attached evidence that he had a learning disability since at least high school). 7 On the other hand, where a petitioner fails to show “any causal connection” between the 8 grounds upon which he asserts a right to equitable tolling and his inability to timely file a 9 federal habeas application, equitable tolling is not applicable. See Gaston v. Palmer, 417 10 F.3d 1030, 1034 (9th Cir. 2005) (concluding that it was not clear error to find equitable 11 tolling inapplicable where petitioner failed to show causal connection between physical 12 and mental disabilities and inability to timely file petition). 13 Petitioner has not made a non-frivolous showing of a severe mental impairment 14 during the filing period that would entitle him to further opportunities to develop the 15 record. To be sure, Petitioner presents several pieces of evidence related to his mental 16 capacity, including a 2015 letter from his high school describing his enrollment in a 17 special education program (ECF No. 17-1 at 3-9), declarations of other inmates regarding 18 his mental capacity dated in 2016 (ECF No. 19 at 7-11), and a disability accommodation 19 summary from a previous institution he was housed in describing his low Tests of Adult 20 Basic Education (“TABE”) score dated in 2017. (ECF No. 17-1 at 10.) These materials, 21 however, are either dated multiple years before Petitioner’s conviction became final 22 (from Petitioner’s high school years), or several years after the statute of limitations 23 period had run for the purposes of AEDPA. Records that pre-date or post-date the 2012 24 to 2013 filing period at issue in this case do not sufficiently demonstrate that Petitioner’s 25 mental capacity prevented him from timely filing his habeas petition in federal court. 26 See, e.g., Ontiveros v. Subia, No. 2:07–cv–1441 JAM DAD P, 2014 WL 6982139, at *4 27 (E.D. Cal. Dec. 10, 2014) (collecting cases and noting that evidence submitted related to 28 the petitioner’s mental capacity before and after, but not during the limitations period 1 were insufficient to demonstrate that he suffered from mental incapacity during the filing 2 period). 3 Additionally, even assuming that Petitioner suffered from mental disabilities after 4 the statute of limitations in this case had commenced such that he would be entitled to 5 equitable tolling, Petitioner’s filing of separate federal court actions in 2013 demonstrates 6 that any such tolling would not rescue the present Petition from a statute of limitations 7 bar. In other words, the filing of a separate habeas petition in federal court in June of 8 2013—just a month after the statute of limitations for Petitioner’s conviction that is the 9 subject of the instant Petition had expired—refutes any assertion that Petitioner was 10 unable to file a federal petition until 2022, nearly nine years later. See Morales v. 11 Covello, No. Cv 20-850-JLS(E), 2020 WL 4258647, at *5 (C.D. Cal. Apr. 14, 2020) 12 (noting that the filing of federal petitions years before the petition subject to an equitable 13 tolling argument had been filed refuted the petitioner’s argument that mental disabilities 14 kept him from timely filing), report and recommendation adopted, 2020 WL 5369412 15 (C.D. Cal. Sept. 6, 2020). Any possible equitable tolling therefore ended when Petitioner 16 demonstrated that he could file federal actions in June of 2013. 17 Further still, any opportunity that the Court might be able to afford Petitioner in 18 developing the record with regard to his mental capacity would not rescue the instant 19 Petition. Even if Petitioner could demonstrate he suffered from a mental disability that 20 prevented his filing of this action during the limitations period, he still has not exhausted 21 his state court remedies. This Court cannot address a habeas petition unless the petitioner 22 exhausts state remedies by presenting each issue in the federal petition to the California 23 Supreme Court. See Section II.A.1., supra. Accordingly, the Court will recommend that 24 Respondent’s motion to dismiss is granted because the instant Petition is unexhausted. 25 The Court additionally recommends that the Petition be dismissed without further leave 26 to amend, but without prejudice to bring a new petition once Petitioner has exhausted his 27 claims. Petitioner may once again raise his tolling arguments, including a request for 28 1 further development of the record, after he exhausts his remedies in state court. 2 3. Conclusion 3 The instant Petition was filed over nine years after the statute of limitations 4 expired, and Petitioner has failed to demonstrate that he is entitled to a later trigger date 5 of the limitations period. Additionally, neither statutory nor equitable tolling are 6 available to Petitioner based on the record before the Court. Petitioner did not file any 7 state petitions that would entitle him to statutory tolling, and he has not made a non- 8 frivolous argument that he should be entitled to equitable tolling based on mental 9 incapacity. Although the Petition should be dismissed, the Court recognizes that 10 Petitioner has presented some evidence of a learning disability that could require further 11 development of the record in a federal petition once he has exhausted his state remedies. 12 Accordingly, the Court RECOMMENDS that the Petition be dismissed without further 13 leave to amend, but without prejudice to bring a new petition once Petitioner has 14 exhausted his claims. 15 B. Petitioner’s Miscellaneous Motions 16 1. Motions for appointment of counsel 17 Also before the Court are Petitioner’s various motions for appointment of counsel. 18 (ECF Nos. 17, 19, 22 at 3.) Petitioner argues in each of these motions that he is mentally 19 disabled and cannot properly litigate this action without the aid of counsel. (See, e.g., 20 ECF No. 17 at 2-3.) Furthermore, Petitioner argues that the institution where he is 21 housed has not allowed him to access the law library in several months. (See id. at 3.) 22 The Sixth Amendment right to counsel does not extend to federal habeas corpus 23 actions by state prisoners. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). 24 25 5 The Court expresses no opinion as to whether Petitioner will be procedurally barred from receiving a 26 decision on the merits of his claims in state court. See Lopez v. Ndoh, Case No. CV 18-2245 MWF (PVC), 2020 WL 1894150, at *2 (C.D. Cal. Mar. 3, 2020) (citing Tamalini v. Stewart, 249 F.3d 895, 27 899 n.2 (9th Cir. 2001)) (“Petitioner may still have an available remedy by filing another habeas petition in the California Supreme Court exhausting [his claims], even though California’s procedural rules may 28 1 Petitioners do not have an absolute right to counsel in habeas corpus actions. See 2 Knaubert v. Goldsmith, 791 F.2d 722, 728 n.5 (9th Cir. 1986). Despite this, however, 3 district courts have discretion to appoint counsel in habeas proceedings for “any person 4 financially unable to obtain adequate representation” when “the interests of justice so 5 require.” 18 U.S.C. § 3006A(a)(2)(B); see also Chaney v. Lewis, 801 F.2d 1191, 1196 6 (9th Cir. 1986) (“Indigent state prisoners applying for habeas corpus relief are not entitled 7 to appointed counsel unless the circumstances of a particular case indicate that appointed 8 counsel is necessary to prevent due process violations.”). Appointing counsel is left to 9 the court’s discretion unless an evidentiary hearing is necessary. See Knaubert, 791 F.2d 10 at 729–30 (explaining that the interests of justice require appointment of counsel when a 11 court conducts an evidentiary hearing on a petition). A court’s discretion to appoint 12 counsel may be exercised only under “exceptional circumstances.” Terrell v. Brewer, 13 935 F.2d 1015, 1017 (9th Cir. 1991). A “finding of exceptional circumstances requires 14 an evaluation of both the likelihood of success on the merits and the ability of the 15 petitioner to articulate his claims pro se in light of the complexity of the legal issues 16 involved. Neither of these factors is dispositive and both must be viewed together before 17 reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 18 1986) (internal quotation marks omitted)). 19 Petitioner has not demonstrated that exceptional circumstances exist such that he 20 should be appointed counsel at this juncture. Because the Court has determined that any 21 opportunities for Petitioner to develop the record further would not rescue the Petition 22 due to Petitioner’s failure to exhaust his state court remedies, an evidentiary hearing is 23 not warranted. Nor is the Court persuaded that exercise of its discretion to appoint 24 counsel is appropriate at this time. Even if the Court assumes that Petitioner could 25 demonstrate an inability to articulate his claims pro se because of a mental disability, the 26 instant Petition is unexhausted, refuting any argument regarding the likelihood of success 27 on the merits. Accordingly, Petitioner has not shown that appointment of counsel would 28 be appropriate at this time. While the court concludes that the motions for appointment 1 of counsel should be denied, the Court will RECOMMEND that they be denied without 2 prejudice to Petitioner’s renewal of a motion for appointment of counsel demonstrating a 3 basis upon which appointment would be appropriate in the future. See Bellows v. 4 Borders, Case No. 2:19-cv-04386-JVS-MAA, 2019 WL 13321850, at *2 (C.D. Cal. Dec. 5 13, 2019) (denying motion for appointment of counsel without prejudice when the 6 petitioner could demonstrate that appointment would be appropriate in the future). 7 2. Motion for extension of time 8 Petitioner separately requests that the Court grant him an extension of time to 9 submit filings in this case due to his incarceration in a healthcare facility that does not 10 allow his access to the law library. (ECF No. 18 at 1-5.) Because the Court has already 11 determined that Petitioner’s claims are unexhausted and should be dismissed, any 12 extensions of time that the Court may be able to recommend would be futile. 13 Accordingly, the Court RECOMMENDS that Petitioner’s motion for extension of time 14 be denied without prejudice. 15 III. CONCLUSION AND RECOMMENDATION 16 For the reasons stated above, IT IS HEREBY RECOMMENDED that District 17 Judge Sammartino issue an Order: (1) adopting this Report and Recommendation; (2) 18 granting Respondents’ Motion to Dismiss (ECF No. 20); (3) dismissing the Petition 19 without further leave to amend, but without prejudice to bring a new petition once 20 Petitioner has exhausted his claims; and (4) denying Petitioner’s miscellaneous motions 21 (ECF Nos. 17, 18, 19) without prejudice. 22 IT IS ORDERED that no later than June 30, 2023, any party to this action may 23 file written objections with the Court and serve a copy on all parties. The document 24 should be captioned “Objections to Report and Recommendation.” 25 / / / 26 / / / 27 / / / 28 / / / 1 IT IS FURTHER ORDERED that any reply to any objections shall be filed with 2 Court and served on all parties no later than July 14, 2023. The parties are advised 3 || that failure to file objections within the specified time may waive the right to raise those 4 objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th 5 ||Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156 (9th Cir. 1991). 6 IT IS SO ORDERED. 7 Dated: June 7, 2023 8 LY 10 Honorable Lupe Rodriguez, Jr. 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28