Mendoza v. Pollard

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ROBERT A. MENDOZA, Case No.: 20cv0847-GPC(RBB)

11 Petitioner, ORDER ADOPTING REPORT AND 12 v. RECOMMENDATION GRANTING MOTION TO DISMISS PETITION 13 M. POLLARD, Warden, AND DENYING MOTION FOR 14 Respondent. PARTIAL SUMMARY JUDGMENT

15 [ECF Nos. 12, 16.] 16

17 18 19 Petitioner Roberto Angel Mendoza (“Petitioner”), a state prisoner proceeding pro 20 se, filed a Petition for Writ of Habeas Corpus and First Amended Petition for Writ of 21 Habeas Corpus (collectively “Petition”) pursuant to 28 U.S.C. § 2254 on May 1, 2020 22 and July 18, 20201, respectively. (ECF Nos. 1, 25.) Petitioner also filed a motion for 23 partial summary judgment. (ECF No. 12.) Respondent Marcus Pollard, the Warden, 24 (“Respondent”) filed a motion to dismiss the Petition, (ECF No. 16), and an opposition to 25 26 1 The Court applies the mailbox rule to Petitioner’s filings. See Houston v. Lack, 487 U.S. 266, 270–71 (1988) (holding that a pro se prisoner's court documents are deemed “filed” at the moment of delivery to 27 prison officials for forwarding to the district court because the prisoner is unable to control the time of 28 receipt by the court). 1 Petitioner’s motion for partial summary judgment. (ECF No. 18.) Petitioner filed an 2 opposition to Respondent’s motion to dismiss. (ECF No. 26.) Magistrate Judge Ruben 3 B. Brooks issued a Report and Recommendation (“Report”) recommending the Court 4 grant Respondent’s motion to dismiss and deny Petitioner’s motion for partial summary 5 judgment. (ECF No. 28.) Petitioner filed an objection to the Magistrate Judge’s Report. 6 (ECF No. 34.) After a thorough review of the issues and for the reasons set forth below, 7 this Court ADOPTS the Magistrate Judge’s Report and GRANTS Respondent’s motion 8 to dismiss and DENIES Petitioner’s motion for partial summary judgment. 9 I. Factual Background 10 On January 20, 2016, a jury found Petitioner guilty of two counts of oral copulation 11 with a child ten years old or younger in violation of California Penal Code (“Penal 12 Code”) section 288.7(b), two counts of sexual penetration with a child ten years old or 13 younger in violation of Penal Code section 288.7(b), and nine counts of lewd acts upon a 14 child in violation of Penal Code section 288(a), six of which included special allegations 15 of substantial sexual conduct with a child under fourteen years of age under Penal Code 16 section 1203.066(a)(8). (ECF No. 17-1, Lodgment No. 1 at 187–99.2) The trial court 17 sentenced Petitioner to thirty years to life in state prison. (Id. at 201.) 18 II. Procedural Background 19 A. Direct Appeal 20 On March 29, 2016, Petitioner appealed his conviction to the California Court of 21 Appeal. (Id. at 153.) On February 28, 2017, the California Court of Appeal remanded 22 the matter to the trial court with direction to correct or amend the abstract of judgment 23 but affirmed the judgment in all other respects. (ECF No. 17-2, Lodgment No. 2 at 16– 24 17.) On March 28, 2017, Petitioner filed a petition for review with the California 25 Supreme Court. (ECF No. 17-3, Lodgment No. 3.) On May 10, 2017, the Supreme 26 Court of California denied the petition for review without comment. (ECF No. 17-4, 27

28 1 Lodgment No. 4.) 2 B. State Habeas Corpus Proceedings 3 On July 12, 2019,3 Petitioner filed a petition for writ of habeas corpus with the San 4 Diego Superior Court. (ECF No. 17-5, Lodgment No. 5.) Three days later, on July 15, 5 2019, Petitioner filed an identical habeas petition containing the same case number but 6 did not include the additional “memorandum in support of petition for habeas corpus” 7 that accompanied the first petition. (ECF No. 17-6, Lodgment No. 6; see also ECF No. 8 17-8, Lodgment No. 8 at 3.) On August 15, 2019, Petitioner again filed an identical 9 habeas petition which was not assigned a case number. (ECF No. 17-7, Lodgment No. 10 7.) The San Diego County Superior Court denied the three petitions and all related 11 filings on August 20, 2019. (ECF No. 17-8, Lodgment No. 8.) 12 On or around September 29, 2019, Petitioner filed a habeas petition in the California 13 Court of Appeal. (ECF No. 17-9, Lodgment No. 9 at 23.) On October 8, 2019, the 14 California Court of Appeal denied this petition as untimely and for other procedural 15 reasons. (ECF No. 17-10, Lodgment No. 10.) On October 30, 2019, Petitioner filed a 16 petition for writ of habeas corpus with the California Supreme Court. (ECF No. 17-11, 17 Lodgment No. 11.) The California Supreme Court denied the petition without comment 18 on April 1, 2020. (ECF No. 17-12, Lodgment No. 12.) 19 The instant Petition was filed in this Court on May 1, 2020. (ECF No. 1.) On 20 September 2, 2020 Petitioner filed the instant motion for partial summary judgment as to 21 the claims set forth in ground two of his Petition. (ECF No. 12.) On September 21, 22 2020, Respondent filed both a motion to dismiss the Petition as untimely, and an 23 opposition to Petitioner’s motion for partial summary judgment. (ECF Nos. 16, 18.) On 24 September 22, 2020, the Court received Petitioner’s motion for leave to file a First 25 26 3 In a letter to the Superior Court dated June 30, 2019, Petitioner requested a ruling pursuant to California Rules of the Court 4.551(3), asserting that Petitioner had submitted a habeas petition on April 27 14, 2019, and it had been beyond the 60 days required for the court to respond. (ECF No. 17-6, 28 Lodgment No. 6 at 1.) The Court does not have any record of the Superior Court receiving a habeas 1 Amended Petition. (ECF No. 20.) On October 7, 2020, Respondent filed a non- 2 opposition to the motion and a request to have the motion to dismiss (ECF No. 16) be 3 applied to the First Amended Petition. (ECF No. 23.) On July 18, 2020, Petitioner filed 4 a First Amended Petition asserting the same four grounds for relief as the original 5 Petition. (ECF No. 25 at 56–73.) On October 15, and 21, 2020, Petitioner filed an 6 opposition to Respondent’s motion to dismiss and a reply brief in support of his motion 7 for partial summary judgment, respectively. (ECF Nos. 26, 27.) 8 On January 5, 2021, Magistrate Judge Ruben B. Brooks issued a report and 9 recommendation (“Report”), advising the Court to grant Respondent’s motion to dismiss, 10 and to deny Petitioner’s motion for partial summary judgment. (ECF No. 28.) On March 11 18, 2021, Petitioner filed an objection to the Report. (ECF No. 34.) 12 III. Standard of Review of Report and Recommendation 13 The Court “may accept, reject, or modify, in whole or in part, the findings or 14 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). If objections 15 are made, the Court reviews the magistrate judge’s findings and recommendations de 16 novo. 28 U.S.C. § 636(b)(1)(C); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 17 Cir. 2003) (en banc). When no objections are filed, the Court may assume the 18 correctness of the magistrate judge’s findings of fact and decide the motion on the 19 applicable law. Campbell v. United States Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974). 20 The district court need not review de novo those portions of a Report to which neither 21 party objects. Reyna-Tapia, 328 F.3d at 1121-22. Petitioner filed an Objection on March 22 22, 2021; however, the Objection does not address any arguments raised in the Report. 23 (ECF No. 34.) Petitioner merely attaches two copies of his habeas petition filed with the 24 California Supreme Court. (Id.) Nonetheless, the Court conducts a de novo review of the 25 findings and recommendations of the Magistrate Judge. 26 IV. Respondent’s Motion to Dismiss 27 A. Statute of Limitations Under AEDPA 28 Respondent moves to dismiss the Petition on the ground that it is time-barred 1 pursuant to the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). (ECF No. 2 16 at 3–7.) Respondent argues that Petitioner’s case became final on August 8, 2017, and 3 contends that, without tolling, the limitations period expired on August 8, 2018. (Id. at 4 3–4 (citing Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001).) Asserting that the 5 Petition was signed on May 1, 2020, Respondent reasons that without statutory or 6 equitable tolling, it is untimely. (Id. at 4.) 7 The Antiterrorism and Effective Death Penalty Act of 1996, (“AEDPA”) imposes a 8 one-year statute of limitations on petitions for writ of habeas corpus filed by state 9 prisoners. 28 U.S.C. § 2244(d). A petition for writ of habeas corpus may be dismissed 10 with prejudice when it is not filed within AEDPA’s one-year statute of limitations. See 11 Jimenez v. Rice, 276 F.3d 478, 483 (9th Cir. 2001). The statute of limitations is a 12 threshold issue that must be resolved before the merits of individual claims. White v. 13 Klitzkie, 281 F.3d 920, 921–22 (9th Cir. 2002). 14 The limitations period runs from the latest of: 15 (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; 16 (B) the date on which the impediment to filing an application created by State 17 action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 18 (C) the date on which the constitutional right asserted was initially recognized by 19 the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 20 (D) the date on which the factual predicate of the claim or claims presented could 21 have been discovered through the exercise of due diligence.

22 28 U.S.C. § 2244(d)(1)(A)–(D). Respondent alleges that the Petition is barred based on 23 28 U.S.C. § 2244(d)(2)(A), the date on which the judgment of conviction becomes final 24 by the conclusion of direct review. When a habeas petitioner seeks direct review by the 25 state’s highest court but does not file a petition with the United States Supreme Court, the 26 judgment becomes final when the prisoner’s time to petition the Supreme Court expires. 27 Bowen v. Roe, 188 F.3d 1157, 1158–59 (9th Cir. 1999). According to United States 28 1 Supreme Court Rule 13, a petition for writ of certiorari must be filed within ninety days 2 of the entry of an order denying discretionary review by the state supreme court. Sup. Ct. 3 R. 13. 4 Here, the California Supreme Court denied his petition for review on May 10, 5 2017. (ECF No. 17-4, Lodgment No. 4.) Petitioner did not file a petition for writ of 6 certiorari with the United States Supreme Court. Therefore, Petitioner’s judgment 7 became final for the purposes of AEDPA on August 8, 2017, ninety days after the 8 California Supreme Court denied his petition for review. Pursuant to § 2244(d), the 9 statute of limitations for federal habeas corpus relief began to run on August 9, 2017, the 10 day after the judgment became final. See 28 U.S.C. § 2244(d)(1)(A); Corjasso v. Ayers, 11 278 F.3d 874, 877 (9th Cir. 2002) (explaining that the one-year statute of limitations 12 under AEDPA begins to run the day after the conviction becomes final). Therefore, the 13 one-year statute of limitations expired on August 9, 2018.4 See Patterson v. Stewart, 251 14 F.3d 1243, 1245–46 (9th Cir. 2001) (quoting Fed. R. Civ. P. 6(a)) (“In computing any 15 amount of time prescribed or allowed . . . by any applicable statute, the day of the act, 16 event, or default from which the designated period of time runs shall not be included.”). 17 Petitioner’s federal habeas Petition was filed on May 1, 2020, almost two years 18 later. Therefore, unless Petitioner is entitled to statutory or equitable tolling, the Petition 19 is barred by AEDPA’s statute of limitations. 20 1. Statutory Tolling 21 Respondent asserts that Petitioner is not entitled to statutory tolling because at the 22 time Petitioner commenced his collateral challenges to the judgment in state courts, the 23 statute of limitations for filing a federal petition had already expired. (ECF No. 16 at 4.) 24 Accordingly, Respondent argues that once the federal limitations period has expired, the 25 filing of a state petition cannot revive it. (Id.) Petitioner contends his case is analogous 26 27 28 4 The Magistrate Judge’s Report incorrectly found that the one-year statute of limitations would have 1 to Robinson v. Lewis, 9 Cal. 5th 883 (2020), and he falls within a “safe harbor” period 2 subject to statutory tolling. (ECF No. 26 at 5–6.) 3 The statute of limitations under AEDPA is tolled during periods in which a 4 “properly filed” habeas corpus petition is “pending” in the state courts. 28 U.S.C. § 5 2244(d)(2). The statute specifically provides, “[t]he time during which a properly filed 6 application for State post-conviction or other collateral review with respect to the 7 pertinent judgment or claim is pending shall not be counted toward any period of 8 limitation under this subsection.” Id.; see also Pace v. DiGuglielmo, 544 U.S. 408, 410 9 (2005). “[A]n application is ‘properly filed’ when its delivery and acceptance are in 10 compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 11 U.S. 4, 8 (2000) (explaining that typical filing requirements include all relevant time 12 limits). 13 The interval between the disposition of one state petition and the filing of another 14 may be tolled under “interval tolling.” Carey v. Saffold, 536 U.S. 214, 223 (2002). The 15 statute of limitations is tolled from the time a petitioner’s first state habeas petition is 16 filed until state collateral review is concluded, but it is not tolled before the first state 17 collateral challenge is filed. Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. 2007) (citing 18 Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999)). A petitioner is not entitled to 19 statutory tolling where he initiates state habeas proceedings after the expiration of the 20 federal one-year limitations period. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 21 2003) (holding that “section 2244(d) does not permit the reinitation of the limitations 22 period that has ended before the state petition was filed.”); Jimenez v. Rice, 276 F.3d 478, 23 482 (9th Cir. 2001) (filing a state habeas petition after AEDPA’s one year limitations 24 period has elapsed is an “absolute time bar” to federal habeas review). 25 As stated above, the one-year limitations period within which Petitioner could 26 challenge his conviction in federal court began to run on August 9, 2017, and 27 consequently expired on August 9, 2018. Petitioner’s state court petition for a writ of 28 habeas corpus was filed in San Diego County Superior Court on July 12, 2019; 337 days 1 after the statute of limitations had expired. (ECF No. 17-5, Lodgment No. 5.) Because 2 Petitioner failed to initiate state habeas proceedings before the statute of limitations had 3 expired, statutory tolling is not proper here. See Ferguson, 321 F.3d at 823. 4 Petitioner argues that he is nevertheless entitled to statutory tolling by citing and 5 relying on Robinson v. Lewis, 9 Cal. 5th 883 (2020). (ECF No. 26 at 3-7.) As discussed 6 in the Report, the court in Robinson analyzed gap tolling between a petitioner’s delay in 7 filing between a lower court’s denial of a habeas petition and the filing of a petition in a 8 higher court. Robinson, 9 Cal. 5th at 891. However, in Petitioner’s case, the statute of 9 limitations had already run before he filed his first state habeas petition. The 337 days 10 between the date Petitioner’s conviction became final and the time his first state petition 11 was filed is not subject to tolling because there is no case “pending” during that time. See 12 Nino, 183 F.3d at 1006. Petitioner’s reliance on Trigueros v. Adams, 658 F.3d 983 (9th 13 Cir. 2011) is similarly misplaced. (ECF No. 26 at 7-8.) In Trigueros, the petitioner filed 14 his first state habeas petition before the one-year statute of limitations had expired. 15 Trigueros, 658 F.3d at 986. It is well established that “once the federal statute of 16 limitations has run, a newly filed state petition does not reset the clock.” Davis v. 17 Johnson, 359 F. Supp. 3d 831, 862 (N.D. Cal. 2019). 18 Therefore, because Petitioner’s first habeas petition was filed after the expiration 19 of AEDPA’s limitations period, he is not entitled to statutory tolling.5 20 2. Equitable Tolling 21 Equitable tolling of the statute of limitations is appropriate when the petitioner can 22 show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 23 circumstance stood in his way.’” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting 24 Pace, 544 U.S. at 418); see also Lawrence v. Florida, 549 U.S. 327, 335 (2007) (same). 25 A petitioner is entitled to equitable tolling of AEDPA’s one-year statute of limitations 26 27 28 5 Even if Petitioner had filed a petition on April 14, 2019, as he claims, the earlier filing would still have 1 where “‘extraordinary circumstances beyond a prisoner’s control made it impossible’” to 2 file a timely petition. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting 3 Brambles v. Duncan, 330 F.3d 1197, 1202 (9th Cir. 2003)). 4 “‘[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very 5 high, lest the exceptions swallow the rule.’” Miranda v. Castro, 292 F.3d 1063, 1066 6 (9th Cir. 2002) (alteration in original) (quoting United States v. Marcello, 212 F.3d 1005, 7 1010 (7th Cir. 2000)). The failure to file a timely petition must be the result of external 8 forces, not the result of the petitioner’s lack of diligence. Miles v. Prunty, 187 F.3d 1104, 9 1107 (9th Cir. 1999). “Determining whether equitable tolling is warranted is a ‘fact- 10 specific inquiry.’” Spitsyn, 345 F.3d at 799 (quoting Frye v. Hickman, 273 F.3d 1144, 11 1146 (9th Cir. 2001). 12 Petitioner contends equitable tolling is warranted in this case for a period of eight 13 months from the date the statute of limitations expired on August 9, 2018 until the date 14 he filed his first state habeas petition on April 14, 2019.6 (ECF No. 25 at 45-46.) 15 Namely, Petitioner asserts (1) his fear that his sex offender status would be discovered, 16 (2) the lack of a law library in his prison yard, (3) and the inability to obtain legal 17 assistance constitute “extraordinary circumstances” that prevented him from filing a 18 timely petition. (ECF No. 25 at 40–41, 43.) Respondent asserts Petitioner is not entitled 19 to equitable tolling because his conclusory and unsupported allegations are insufficient to 20 meet his burden that he was reasonably diligent, and some “extraordinary circumstance” 21 stood in his way. (ECF No. 16 at 5.) 22 a. Reasonable diligence 23 In order for a petitioner to show that he is entitled to equitable tolling, he must use 24 “reasonable diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653. “To 25 determine if a petitioner has been diligent in pursuing his petition, courts consider the 26 27 28 6 The Court considers Petitioner’s argument even though his state habeas petition was not filed until July 1 petitioner’s overall level of care and caution in light of his or her particular 2 circumstances.” Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011). The Ninth Circuit 3 has held that “diligence during the existence of an extraordinary circumstance is the key 4 consideration.” Gibbs v. Legrand, 767 F.3d 879, 892 (9th Cir. 2014). 5 Petitioner argues his fear that his sex offender status would be discovered, the lack 6 of a law library in his prison yard, and his inability to obtain legal assistance constitute 7 “extraordinary circumstances” that prevented him from filing a timely federal habeas 8 petition. However, Petitioner has not demonstrated he was reasonably diligent in 9 pursuing his Petition during, before, or after the existence of these alleged “extraordinary 10 circumstances.” In fact, Petitioner admits his appointed appellate counsel informed him 11 after his direct appeals had been exhausted in May 2017 that his federal habeas petition 12 must be filed no later than August 8, 2018, and Petitioner subsequently requested that all 13 of his legal files be sent to his family rather than to him in order to hide the fact he was 14 convicted as a sex offender. (ECF No. 1 at 40; ECF No. 25 at 40.) It was not until he 15 consulted with a jailhouse lawyer around March 15, 2019 concerning a bankruptcy matter 16 did he begin to make efforts to seek collateral review. (ECF No. 1 at 40; ECF No. 25 at 17 43.) He fails to explain any diligence in seeking collateral review from May 2017 until 18 August 9, 2018 when the one-year statute of limitations ran. 19 As illustrated in the Report, the petitioner in Zavala v. Diaz similarly failed to 20 pursue his case “because of the nature of his convictions.” Zavala v. Diaz, No. SA CV 21 12-1002-DSF, 2013 WL 440638, at *3 (C.D. Cal. Jan. 25, 2013) report and 22 recommendation adopted, No. SA CV 12-1002-DSF, 2013 WL 440706 (C.D. Cal. Feb. 5, 23 2013). In that case, the court held that the petitioner’s fear that he might be assaulted, 24 and in turn his failure to pursue his case “was not the result of external forces beyond his 25 control but, rather, the result of his decision not to discuss his case with other prisoners.” 26 Id. “The bottom line is that Petitioner’s decision to remain silent about his case . . . 27 demonstrates a lack of diligence and precludes a finding of diligence.” Id. Similarly, in 28 this case, Petitioner’s failure to diligently pursue federal habeas relief was due to his 1 decision to hide the nature of his conviction and not from any external forces. Petitioner 2 has not demonstrated that he pursued his rights diligently. 3 b. Extraordinary circumstances 4 First, the Court agrees with the conclusion in the Report, and finds Mendoza’s 5 status as a sex offender, and in turn his fear of other prisoners due to that status, is not an 6 “extraordinary circumstance” that justifies equitable tolling. See Kelley v. Lizarraga, No. 7 2:17-CV-1401 MCE KJN P, 2018 WL 1693384, at *5–6 (E.D. Cal. Apr. 6, 2018) 8 (concluding that “the nature of petitioner’s underlying conviction [of sex offenses] does 9 not constitute an extraordinary circumstance warranting the application of equitable 10 tolling.”); Martinez v. Sullivan, No. CV 16-09128-ODW JDE 2017 WL 4220434, at *5 11 (C.D. Cal. Aug. 11, 2017) (“Petitioner’s difficulty in researching his claims and obtaining 12 assistance due to his sex offender status do not constitute extraordinary circumstances 13 beyond his control.”); Samperio v. Martel, No. 1:10-CV-01528 LJO, 2011 WL 847412, 14 at *3 (E.D. Cal. Mar. 4, 2011) (concluding petitioner’s status as a sex offender, and his 15 fear of danger was not an “extraordinary circumstance” to justify equitable tolling. “Also, 16 it is Petitioner's own actions, not some external circumstance, that caused him to have 17 this status.”) 18 Next, Petitioner contends that his lack of access to a law library in his prison yard 19 was an “extraordinary circumstance” preventing him from timely filing his Petition. 20 Again, this Court agrees with the Report that Petitioner’s argument is without merit. 21 Petitioner merely asserts that there was no law library in his prison yard for him to use, or 22 no information on how to find one. (ECF No. 25 at 40-41; ECF No. 26 at 11.) However, 23 “petitioner's claim that he is entitled to equitable tolling because he had limited law 24 library access, without supporting evidence and proof that limited access caused him to 25 tardily file [his federal habeas petition], is insufficient to meet his burden.” Williams v. 26 Dexter, 649 F. Supp. 2d 1055, 1062 (C.D. Cal. 2009). Even though Yard B may not have 27 a law library, Petitioner has not given any specific instances of him attempting to access 28 the law library in the other yards, or even being denied access to the other yard’s law 1 library, and thus the Court cannot conclude that his alleged restriction to the law library 2 was the cause of his untimely filed petition. See Xayasomloth v. Cate, No. 08CV260 3 BEN(AJB), 2009 WL 514286, at *8 (S.D. Cal. Feb. 27, 2009) (concluding that prison 4 lockdowns and library access restrictions do not constitute extraordinary circumstances 5 sufficient to equitably toll the AEDPA statute of limitations.); cf., Sossa v. Diaz, 729 F.3d 6 1225, 1236 (9th Cir. 2013) (Petitioner sufficiently alleged that prison authorities made it 7 impossible for him to file his habeas petition timely because he had filed a grievance 8 asking for a rule change for library access due to his work schedule which was denied, 9 even though he applied for “priority legal user”, he was never called to the library, and 10 despite access to the library two days before his petition was due, he haphazardly threw 11 his papers together but when he received his copies, pages were missing). In this case, 12 Petitioner fails to even allege he attempted to access the law library. 13 Similarly, Petitioner’s inability to obtain legal assistance also does not constitute 14 an “extraordinary circumstance.” Courts have long held that ignorance of the law or a 15 lack of legal sophistication is not an extraordinary circumstance to warrant equitable 16 tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding that “a pro 17 se petitioner’s lack of legal sophistication is not, by itself, an extraordinary 18 circumstance”); Ford v. Pliler, 590 F.3d 782, 789 (9th Cir. 2009) (noting that the 19 equitable tolling “standard has never been satisfied by a petitioner’s confusion or 20 ignorance of the law alone”); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th 21 Cir. 2009) (“[A] pro se petitioner’s confusion or ignorance of the law is not, itself, a 22 circumstance warranting equitable tolling.”). Here, Petitioner has not demonstrated 23 extraordinary circumstances to justify equitable tolling. 24 Based on the above, Petitioner has not demonstrated that he is entitled to equitable 25 tolling of the one-year statute of limitations under Section 2244(d)(1) that would render 26 the filing of his Petition timely. Accordingly, the Court ADOPTS the Magistrate Judge’s 27 Report and GRANTS Respondent’s motion to dismiss because the Petition is untimely. 28 / / / 1 B. Certificate of Appealability 2 Under Rule 11 of the Federal Rules Governing section 2254 cases, this Court must 3 “issue or deny a certificate of appealability when it enters a final order adverse to the 4 applicant.” The Court may not issue a certificate of appealability unless Petitioner makes 5 a “substantial showing of the denial of a constitutional right,” 28 U.S.C. § 6 2253(c)(1)(B)(2). To prove a substantial showing of denial of a constitutional right, 7 Petitioner must demonstrate that “reasonable jurists would find the district court’s 8 assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 9 U.S. 473, 483 (2000). “A petitioner satisfies this standard by demonstrating that jurists of 10 reason could disagree with the district court’s resolution of his constitutional claims or 11 that jurists could conclude the issues presented are adequate to deserve encouragement to 12 proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Here, Petitioner does 13 not make a substantial showing of the denial of a constitutional right, and it is unlikely 14 that reasonable jurists would find this Court’s assessment debatable or wrong. Therefore, 15 the Court DENIES a Certificate of Appealability. 16 V. Petitioner’s Motion for Partial Summary Judgment 17 Petitioner filed a motion for partial summary judgment on ground two (b), (c), and 18 (d) of his Petition. (ECF No. 12.) Petitioner asserts that he seeks partial summary 19 judgment because “there is no genuine dispute as to any material fact,” reasoning “when 20 respondents’ refuse to answer or otherwise respond to the Petition as Ordered by the 21 Court, there are no disputed material issues of fact or otherwise.” (Id. at 8–9.) 22 Accordingly, Petitioner submits “that Respondents’ have waived or forfeited all of the 23 procedural defenses suggested to it by this Court in its Order Requiring Response to 24 Petition of May 19, 2020.” (Id. at 9 (citing ECF No. 3.) Respondent argues that 25 Petitioner’s motion is more accurately characterized as an application for a default 26 judgment, as the motion is entirely premised on Respondent’s failure to timely file an 27 answer or motion to dismiss. (ECF No. 18 at 2.) In turn, Respondent contends 28 Petitioner’s motion should be denied because (1) default judgments are unavailable in 1 federal habeas corpus matters, (2) Respondent is not in default because the Court 2 modified the original scheduling order, (3) Respondent has sufficiently contested the 3 case, and (4) summary judgment should be unavailable as a procedural vehicle in this 4 case. (Id.) 5 A. Background 6 On May 19, 2020, Magistrate Judge Ruben B. Brooks issued an order requiring 7 Respondent to file a response to the Petition on or before August 3, 2020. (ECF No. 3.) 8 Respondent failed to file an answer or motion to dismiss within the time prescribed. On 9 August 10, 2020, Petitioner filed a motion to strike any late response from Respondent. 10 (ECF No. 7.) On August 20, 2020, Respondent filed motion for leave to file a late 11 response, providing that the Federal Habeas Corpus Team never received the order due to 12 a mishandling of the Court’s order. (ECF No. 9.) On August 24, 2020, the Magistrate 13 Judge issued an order (1) granting Respondent’s motion for leave to file a late response 14 for good cause, and (2) denying Petitioner’s motion to strike. (ECF No. 10.) The order 15 directed Respondent to file a motion to dismiss or an answer to the Petition by no later 16 than September 21, 2020. (Id. at 2.) Petitioner filed the instant motion for partial 17 summary judgment (ECF No. 12), and an objection to the Magistrate Judge’s order 18 granting an extension of time (ECF No. 15). On September 21, 2020, within the time 19 prescribed by Court, Respondent filed the instant motion to dismiss (ECF No. 16), and its 20 response in opposition to Petitioner’s motion for partial summary judgment (ECF No. 21 18). On September 23, 2020, this Court overruled Petitioner’s objection to the Magistrate 22 Judge’s order, finding Respondent had not waived defenses or arguments to respond to 23 the Petition by seeking leave of court to file a late response, and had demonstrated 24 excusable neglect for its delayed filing. (ECF No. 22 at 3.) 25 B. Discussion 26 Petitioner bases his motion for partial summary judgment on Respondent’s failure 27 to timely respond within the time prescribed in this Court’s order, arguing Respondent 28 has waived or forfeited all procedural defenses. (ECF No. 12 at 8–9.) This Court agrees 1 with the Report that Petitioner’s motion should be interpreted as a motion for default 2 judgment. 3 Entering a default is not appropriate here. As set forth above, Respondent filed a 4 motion for leave to file a late response and the Magistrate Judge exercised his discretion 5 and granted Respondent an extension of time to respond to the Petition. (ECF Nos. 9, 6 10.) Respondent then timely filed its motion to dismiss in accordance with the 7 Magistrate Judge’s extended timeline. (ECF No. 16.) Accordingly, Respondent did not 8 violate the Court’s order to respond. Even if Respondent failed to respond within the 9 timeframe allocated, “[t]he failure to respond to claims raised in a petition for habeas 10 corpus does not entitle the petitioner to default judgment.” Gordon v. Duran, 895 F.2d 11 610, 612 (9th Cir. 1990). 12 To the extent Petitioner moves for partial summary judgment, this Court agrees 13 with the Magistrate Judge’s finding that the motion is moot. (ECF No. 28 at 15.) 14 Petitioner’s motion for partial summary judgment was filed September 2, 2020, and the 15 motion is premised on Respondent’s failure to respond to the Petition. (ECF No. 12.) 16 The argument is now moot, as Respondent has since filed its motion to dismiss in 17 response to the Petition. (ECF No. 16.) And even if the motion were not moot, summary 18 judgment is not an appropriate vehicle here. “This is because, generally, ‘[m]otions for 19 summary judgment are inappropriate in federal habeas proceedings.’” Atkins v. 20 Montgomery, No. 2:18-CV-06877-DOC-MAA, 2019 WL 10068937, at *1 (C.D. Cal. 21 June 24, 2019) (citing Johnson v. Seibel, No. EDCV 15-277 CBM (AFM), 2015 WL 22 9664958, at *1 n.2 (C.D. Cal. Aug. 4, 2015), adopted, 2016 WL 94243 (C.D. Cal. Jan. 7, 23 2016)). “Federal Rule of Civil Procedure 56, which requires a court to draw all factual 24 inferences in the nonmovant’s favor . . . is apparently inconsistent and incompatible with 25 28 U.S.C. § 2254(e)(1), which states that ‘a determination of a factual issue made by a 26 State court shall be presumed to be correct.’” Id. at * 2. “‘A court cannot simultaneously 27 assess all facts in the record in the light most favorable to the nonmovant and accept as 28 true the state court’s factual findings based on that same record.’” Id. (citing Gussner v. 1 || Gonzalez, No. 12-CV-01876-LHK, 2013 WL 458250, at *2 (N.D. Cal. Feb. 5, 2013)). 2 Accordingly, the Court DENIES Petitioner’s motion for partial summary 3 || judgment. 4 Conclusion 5 For the reasons set forth above, the Court ADOPTS the Magistrate Judge’s Report 6 ||and Recommendation, GRANTS Respondent’s motion to dismiss, DENIES Petitioner’s 7 motion for partial summary judgment and DISMISSES the Petition with prejudice. The 8 ||Court also DENIES a certificate of appealability. The Clerk of the Court shall close the 9 || case. 10 IT IS SO ORDERED. 11 |!Dated: June 24, 2021 (3 salto OS ) 12 Hon. Gonzalo P. Curiel 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28