Torrance Egan Black v. Jim Robertson

• Court: District Court, C.D. California
• Decided: April 28, 2021
• Docket: 2:20-cv-11823
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 9 10 TORRANCE EGAN BLACK, ) Case No. CV 20-11823-MCS (AS) ) 11 Petitioner, ) FINAL REPORT AND RECOMMENDATION ) 12 v. ) OF A UNITED STATES MAGISTRATE ) 13 JIM ROBERTSON, ) JUDGE ) 14 Respondent. ) ) 15 ) 16 This Final Report and Recommendation is submitted to the 17 Honorable Mark C. Scarsi, United States District Judge, pursuant 18 to 28 U.S.C. § 636 and General Order 05-07 of the United States 19 District Court for the Central District of California. 20 21 I . PROCEEDINGS 22 23 On December 29, 2020, Torrance Egan Black (“Petitioner”) 24 constructively filed a Petition for Writ of Habeas Corpus by a 25 Person in Federal Custody pursuant to 28 U.S.C. § 2241 26 27 28 1 1 (“Petition”). (Dkt. No. 1).1 2 3 On January 28, 2021, Petitioner constructively filed a First 4 Amended Petition for Writ of Habeas Corpus by a Person in Federal 5 Custody pursuant to 28 U.S.C. § 2241 (Dkt. No. 4),2 which the Court 6 construed as a First Amended Petition by a Person in State Custody 7 pursuant to 28 U.S.C. § 2254 (“First Amended Petition”) (see Dkt 8 No. 5 at 1-2). 9 10 The First Amended Petition asserts the following claims for 11 federal habeas relief: (1) The trial court lacked jurisdiction to 12 hear or try the case against Petitioner; (2) Petitioner was 13 extradited from Michigan to California based on an unauthorized 14 demand; and (3) Petitioner is not required to exhaust his state 15 remedies on Grounds One and Two of the First Amended Petition 16 17 1 The Petition and an attached Proof of Service by Mail were signed on December 29, 2020, and the Petition was filed with 18 the Clerk of the Court on December 31, 2020. 19 A habeas petition is constructively filed on the date a 20 prisoner presents his federal habeas petition to prison authorities for forwarding to the Clerk of the Court. Saffold v. Newland, 250 21 F.3d 1262, 1268 (9th Cir. 2000), vacated on other grounds, 536 U.S. 214 (2002); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001). 22 The Court will consider December 29, 2020, the date on which the Petition and the attached Proof of Service by Mail were signed, as 23 the filing date. 24 2 The First Amended Petition and an attached Proof of Service by Mail were signed on January 28, 2021, and the First 25 Amended Petition was filed with the Clerk of the Court on February 26 1, 2021. The Court will consider January 28, 2021, the date on which the First Amended Petition and the attached Proof of Service 27 by Mail were signed, as the filing date. 28 2 1 because exhaustion would be futile. (First Amended Petition at 3-4 2 [3 pages]).3 3 4 On March 3, 2021, Respondent filed a Motion to Dismiss the 5 First Amended Petition (“Motion to Dismiss”)(Dkt. No. 8), 6 contending that the First Amended Petition is time barred. (See 7 Motion to Dismiss at 1, Memorandum of Points and Authorities 8 [“Memorandum”] at 3-5). 9 10 On March 24, 2021, Petitioner filed an Opposition to the 11 Motion to Dismiss (“Opposition”). (Dkt. No. 15). 12 13 On April 5, 2021, the Court issued a Report and 14 Recommendation, recommending that the District Judge grant the 15 Motion to Dismiss, deny the First Amended Petition, and dismiss 16 this action with prejudice. (Dkt. No. 17). On April 23, 2021, 17 Petitioner filed an Objection to the Report and Recommendation 18 (“Objection”). (Dkt. No. 19). 19 20 This Final Report and Recommendation now issues. 21 22 For the reasons stated below, it is recommended that the First 23 24 3 Since the extradition claim alleged in Ground Two of the First Amended Petition appears to correspond to the sole claim 25 alleged in the Petition, (see Petition at 3-3(a) [2 pages]), the 26 Court will use the constructive filing date of the Petition (December 29, 2020), in its analysis of the statute of limitations. 27 28 3 1 Amended Petition be DENIED and this action be DISMISSED with 2 prejudice. 3 4 II. BACKGROUND 5 6 On August 14, 1998, Petitioner was convicted (pursuant to a 7 plea) in Los Angeles County Superior Court, Case Number BA099731, 8 of three counts of first degree murder in violation of California 9 Penal Code (“P.C.”) § 187(a) (Counts 1, 3 and 4), one count of 10 attempted murder in violation of P.C. §§ 664/187(a) (Count 5), and 11 one count of second degree robbery in violation of P.C. § 211 12 (Count 2), and admitted the special allegations that he committed 13 multiple murders in violation of P.C. § 190.2(a)(3) and that he 14 committed one of the murders during a robbery in violation of P.C. 15 § 190.2(a)(17). As part of the plea agreement, Petitioner also 16 pleaded guilty to one count of first degree murder in violation of 17 P.C. § 187, in San Bernardino County Superior Court, Case Number 18 FWV16149. (See Respondent’s Notice of Lodging [“Lodgment”] No. 1 19 at 1,4 No. 3 at 1, No. 5 at 13-17, No. 17 at 34-35; First Amended 20 Petition at 2). 21 22 On August 20, 1998, the trial court in the San Bernardino 23 County Superior Court case sentenced Petitioner, in accordance with 24 the terms of the plea agreement, to state prison for 25 years to 25 26 4 The Court refers to page numbers of lodged documents 27 using the ECF numbering system. 28 4 1 life on the first degree murder conviction. (See Lodgment No. 2 at 2 1-4, No. 3 at 2). On October 2, 1998, the trial court in the Los 3 Angeles County Superior Court case sentenced Petitioner, in 4 accordance with the terms of the plea agreement, to state prison 5 for life without the possibility of parole on Counts 1,3 and 4, a 6 concurrent term of 7 years on Count 5, and a concurrent term of 3 7 years on Count 2. (See Lodgment No. 1 at 4-7, No. 17 at 36-38; 8 First Amended Petition at 2). 9 10 Petitioner did not appeal his convictions or sentence to the 11 California Court of Appeal or the California Supreme Court. (See 12 First Amended Petition at 2; http://appellatecases.courtinfo.ca.gov 13 [last visited April 5, 2021]). 14 15 State Habeas Petitions 16 17 Petitioner filed the following state habeas petitions:5 18 19 On December 7, 2016, Petitioner filed a habeas petition with 20 the Los Angeles County Superior Court, which, on January 27, 2017, 21 denied the petition. (See Lodgment No. 1 at 3, No. 17 at 39-40). 22 23 5 Since, as discussed infra, Petitioner did not file the 24 habeas petitions within the limitations period, he is not entitled to the benefit of the “mailbox rule” in which a petition is deemed 25 filed at the time it is delivered to prison authorities for 26 forwarding to the Court. Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). Accordingly, the Court will consider the date on 27 which these petitions were filed as the filing date. 28 5 1 On December 8, 2016, Petitioner filed a habeas petition with 2 the San Bernardino County Superior Court, which, on January 10, 3 2017, denied the petition. (See Lodgment No. 4). 4 5 On December 3, 2019, and January 6, 2020, Petitioner filed a 6 second habeas petition and a petition for dismissal pursuant to 7 P.C. § 1385, respectively, with the Los Angeles County Superior 8 Court. (See Lodgment Nos. 5-6). The Los Angeles County Superior 9 Court denied both petitions on January 22, 2020, and January 23, 10 2020. (See Lodgment Nos. 7-8). 11 12 On December 9, 2019 (while Petitioner’s second Los Angeles 13 County Superior Court habeas petition was pending), Petitioner 14 filed a second habeas petition with the San Bernardino County 15 Superior Court, which denied the petition on January 31, 2020. 16 (See Lodgment Nos. 9-11). 17 18 On January 7, 2020 (while Petitioner’s second habeas petitions 19 were pending in the Los Angeles County Superior Court and the San 20 Bernardino County Superior Court), Petitioner filed a habeas 21 petition with the California Court of Appeal, which denied the 22 petition on January 13, 2020. (See Lodgment Nos. 12-14). 23 24 On January 10, 2020 (while Petitioner’s first California Court 25 of Appeal habeas petition was pending), Petitioner filed a second 26 habeas petition with the California Court of Appeal, which denied 27 28 6 1 the petition on March 18, 2020. (See Lodgment Nos. 15-16, 18-19). 2 3 On January 17, 2020, January 24, 2020, and February 3, 2020, 4 respectively (while Petitioner’s second California Court of Appeal 5 habeas petition was pending), Petitioner filed habeas petitions 6 with the California Supreme Court, (see Lodgment Nos. 21, 23, 25), 7 were denied on April 15, 2020. (See Lodgment No. 20, 22, 24). 8 9 On December 9, 2020, Petitioner filed a third habeas petition 10 with the Los Angeles County Superior Court. (See Lodgment No. 1 at 11 3). According to Respondent, as of March 3, 2021, the Los Angeles 12 County Superior Court had not yet ruled on the petition. (See 13 Motion to Dismiss, Memorandum at 2). 14 15 On January 14, 2021 (after the instant Petition was filed), 16 Petitioner filed a petition for resentencing pursuant to P.C. § 17 1170.95 in the Los Angeles County Superior Court. (See Lodgment 18 No. 1 at 3). According to Respondent, a hearing on the petition 19 for resentencing was scheduled for March 18, 2021. (See Motion to 20 Dismiss, Memorandum at 2).6 21 22 As stated above, the Petition was constructively filed on 23 December 29, 2020, and the First Amended Petition was 24 25 6 The status of the petition for resentencing is not 26 material to the Court’s analysis of the statute of limitations and the timeliness of the Petition and the First Amended Petition 27 before the Court. 28 7 1 constructively filed on January 28, 2021. 2 3 III. DISCUSSION 4 5 1. The Petition is Time Barred 6 7 A. The Limitations Period 8 9 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) 10 applies to the Petition because it was filed after the statute’s 11 effective date of April 24, 1996. See Lindh v. Murphy, 521 U.S. 12 320, 322-23 (1997). Under AEDPA, state prisoners must file their 13 federal habeas petitions within one-year of the latest of the 14 following dates: 15 16 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of 17 the time for seeking such review; 18 (B) the date on which the impediment to filing an application created by State action in violation of 19 the Constitution or laws of the United States is removed, if the applicant was prevented from filing 20 by such State action; 21 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if 22 the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on 23 collateral review; or 24 (D) the date on which the factual predicate of the claim or claims presented could have been 25 discovered through the exercise of due diligence. 26 28 U.S.C. § 2244(d)(1). “AEDPA’s one-year statute of limitations 27 28 8 1 in § 2244(d)(1) applies to each claim in a habeas application on an 2 individual basis.” Mardesich v. Cate, 668 F.3d 1164, 1171 (9th 3 Cir. 2012). The limitations period is tolled when a prisoner 4 properly files an application for state post-conviction review 5 (statutory tolling) and may also be tolled during reasonable 6 periods of time between such state habeas proceedings (gap 7 tolling). 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 544 U.S. 8 408, 410 (2005). 9 10 AEDPA’s limitations period may also be tolled for equitable 11 reasons “in appropriate cases.” Holland v. Florida, 560 U.S. 631, 12 645 (2010). The Ninth Circuit recognizes the availability of 13 equitable tolling of the one-year statute of limitations in 14 situations where “extraordinary circumstances beyond a prisoner’s 15 control make it impossible to file a petition on time.” Spitsyn v. 16 Moore, 345 F.3d 796, 799 (9th Cir. 2003). A prisoner must 17 establish that: (1) he has been pursuing his rights diligently; and 18 (2) some extraordinary circumstance caused the delay. Holland, 560 19 U.S. at 649. This is a highly fact-dependent determination. 20 Spitsyn, 345 F.3d at 799. 21 22 B. Petitioner Did Not File His Petition Within The Limitations Period 23 24 As indicated above, a petitioner ordinarily has one-year from 25 the date that the state court’s judgment becomes final to file a 26 federal habeas petition. See 28 U.S.C. § 2244(d)(1). A case 27 28 9 1 becomes final at “the conclusion of direct review or the expiration 2 of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). 3 4 Since Petitioner did not appeal his convictions or sentence to 5 the California Court of Appeal or the California Supreme Court, 6 Petitioner was unable to petition the United States Supreme Court 7 for a writ of certiorari. See 28 U.S.C. §§ 1257 and 2101(d); Sup. 8 Ct. R. 13.1. Thus, Petitioner’s conviction became final on 9 December 1, 1998, sixty days after he was sentenced in the Los 10 Angeles County Superior Court on October 2, 1998. See Cal. Rules 11 of Court, Rule 8.308(a); former Cal. Rules of Court, Rule 31(a); 12 see also Caspari v. Bohlen, 510 U.S. 383, 390 (1994)(“A state 13 conviction and sentence become final for purposes of retroactivity 14 analysis when the availability of direct appeal to the state courts 15 has been exhausted and the time for filing a petition for a writ of 16 certiorari has elapsed or a timely petition has been finally 17 denied.”). Therefore, the AEDPA one-year limitations period began 18 to run on December 2, 1998 and, absent the application of an 19 alternate start date under § 2244(d)(1),7 or sufficient statutory 20 or equitable tolling, the limitations period expired one year 21 later, on December 1, 1999. See Patterson v. Stewart, 251 F.3d 22 1243, 1246 (9th Cir. 2001). 23 24 25 7 Since Petitioner does not allege the applicability of any 26 circumstances that would delay the running of the statute of limitations (see 28 U.S.C. § 2244(d)(1)(B)-(D)), the Court will not 27 address those provisions. 28 10 1 The instant Petition, constructively filed on December 29, 2 2020, was filed more than twenty-one years after the statute of 3 limitations expired on December 2, 1999. Therefore, absent grounds 4 for statutory or equitable tolling, the First Amended Petition is 5 untimely. 6 7 C. Petitioner Is Not Entitled To Statutory or Equitable Equitable Tolling 8 9 Petitioner is not entitled to statutory tolling during the 10 pendency of his state habeas and other post-conviction petitions 11 (see Lodgment No. 1 at 3, Nos. 4-16, No. 17 at 39-40, Nos. 18-25).8 12 This is because a petition for state post-conviction or other 13 collateral review filed after the conclusion of the limitations 14 period cannot reinitiate the limitations period. See Ferguson v. 15 Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)(“[S]ection 2244(d) 16 does not permit the reinitiation of the limitations period that has 17 ended before the state petition was filed”); Jiminez v. Rice, 276 18 F.3d 478, 482 (9th Cir. 2001)(filing of state habeas petition “well 19 after the AEDPA statute of limitations ended” does not affect the 20 limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 21 2000)(“[A] state-court petition . . . that is filed following the 22 expiration of the limitations period cannot toll that period 23 because there is no period remaining to be tolled.”). 24 25 26 8 In the Objection, Petitioner conclusorily asserts that he is entitled to statutory tolling (see Objection at 1, 6), but he 27 does not provide any argument supporting his assertion. 28 11 1 The United States Supreme Court has recognized the 2 availability of equitable tolling to the one-year statute of 3 limitations in “extraordinary circumstances,” such as those 4 involving “serious instances of attorney misconduct.” Holland, 560 5 U.S. at 649-52. The Ninth Circuit recognizes the availability of 6 equitable tolling of the one-year statute of limitations in 7 situations where extraordinary circumstances beyond a prisoner’s 8 control make it impossible to file a petition on time. Spitsyn, 9 345 F.3d at 799. The words “extraordinary” and “impossible” 10 suggest the limited availability of this doctrine and, to date, the 11 Ninth Circuit has found very few circumstances which warrant 12 equitable tolling.9 See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 13 14 9 See e.g., Grant v. Swarthout, 862 F.3d 914, 925-26 (9th Cir. 2017)(equitable tolling warranted where prison officials 15 failed to provide petitioner with a requested prison account certificate, a document the petitioner needed in order to file his 16 habeas petition); Luna v. Kernan, 784 F.3d 640, 646-49 (9th Cir. 2015)(equitable tolling warranted where petitioner’s counsel 17 voluntarily dismissed petitioner’s timely federal habeas petition for no good reason, misled petitioner to believe that a fully 18 exhausted federal habeas petition would be filed “shortly” [without informing petitioner that the statute of limitations was going to 19 run in three weeks]), and misled petitioner to believe - for more 20 than six years - that his federal habeas petition was moving forward toward a hearing on the merits); Rudin v. Myles, 781 F.3d 21 1043, 1056-59 (9th Cir. 2015)(equitable tolling warranted where petitioner’s first counsel abandoned petitioner by making minimal 22 visits to petitioner and then stopping the visits, blocking petitioner’s phone calls, not showing an intention at post- 23 conviction hearings to actually represent petitioner, and failing to provide petitioner with reasons for counsel’s delay; and where 24 the state affirmatively misled petitioner into believing that the state court had excused petitioner’s late filing and that the 25 statute of limitations would be statutorily tolled); Gibbs v. 26 LeGrand, 767 F.3d 879, 886-88 (9th Cir. 2014)(equitable tolling warranted where petitioner’s counsel abandoned petitioner by 27 failing to notify him of the state supreme court’s denial of his 28 12 1 1011 (9th Cir. 2009)(“To apply the doctrine in ‘extraordinary 2 circumstances’ necessarily suggests the doctrine’s rarity.”). A 3 petitioner must establish that: (1) he has been pursuing his rights 4 diligently; and (2) some extraordinary circumstance caused the 5 delay. Pace, 544 U.S. at 418. This is a highly fact-dependent 6 determination. Spitsyn, 345 F.3d at 799. Petitioner bears the 7 burden to prove equitable tolling. See Zepeda v. Walker, 581 F.3d 8 1018, 1019 (9th Cir. 2009). Petitioner must show that “‘the 9 extraordinary circumstances were the cause of his untimeliness ... 10 and that the ‘extraordinary circumstances ma[de] it impossible to 11 file a petition on time.’” Ramirez v. Yates, 571 F.3d 993, 997 (9th 12 Cir. 2009)(citations omitted). Petitioner must show that an 13 “external force” caused the untimeliness, rather than “oversight, 14 miscalculation or negligence.” Waldron-Ramsey, 556 F.3d at 1011 15 (citation omitted); see also Holland, 560 U.S. at 651-52. 16 17 In the Objection, Petitioner contends that he is entitled to 18 equitable tolling based on the conduct of his attorney, Bernard J. 19 20 appeal of his state post-conviction petition until after the expiration of the statute of limitations, despite petitioner’s 21 repeated inquiries); Doe v. Busby, 661 F.3d 1001, 1012-15 (9th Cir. 2011)(equitable tolling warranted where petitioner’s counsel failed 22 to file federal habeas petition after making numerous promises to timely file, did not return petitioner’s file until long after the 23 statute of limitations had run, and petitioner was reasonably 24 diligent in pursuing his rights); and Bills v. Clark, 628 F.3d 1092, 1098-1101 (9th Cir. 2010)(equitable tolling may be warranted 25 where mental impairment so severe that petitioner was unable personally either to understand the need to timely file or prepare 26 a habeas petition, and that impairment made it impossible under the totality of the circumstances to meet the filing deadline despite 27 petitioner’s diligence). 28 13 1 Rosen. Petitioner’s contention is based on the following: (1) on 2 October 2, 1998, (the date on which the Los Angeles County Superior 3 Court sentenced Petitioner), his counsel prevented him from 4 pursuing an appeal by telling Petitioner, in response to 5 Petitioner’s inquiry about filing an appeal, that he not have a 6 right to appeal based on his plea; (2) Petitioner was misled about 7 his ability to appear when, on November 12, 2019, (in response to 8 a letter from Petitioner dated November 7, 2019), his counsel wrote 9 Petitioner a letter stating that he was not able to assist 10 Petitioner by providing an affidavit “pertaining to [a] colloquy of 11 {petitioner’s] request for an appeal back in 1998[]” because 12 counsel did not have any colloquy with Petitioner at any time 13 regarding a request for an appeal and there was no appeal “waiver” 14 in the signed plea agreement (Objection, Exhibit “C”); and (3) 15 after October 27, 1998, when Petitioner was extradited to Michigan, 16 (where he remained incarcerated until June 4, 2019), his counsel 17 “abandoned Petitioner by failing to notify him of any appeal 18 deadlines or post-conviction remedies, despite Petitioner’s 19 inquiry.” (See Objection at 1-4). 20 21 Here, Petitioner has not alleged any egregious or serious 22 acts by his attorney that would entitle him to equitable tolling. 23 See Holland, 560 U.S. at 652 (noting certain facts suggesting that 24 the petitioner’s counsel’s actions may have amounted to more than 25 simple negligence: “[Counsel] failed to file Holland’s federal 26 petition on time despite Holland’s many letters that repeatedly 27 emphasized the importance of him doing so. [Counsel] apparently 28 14 1 did not do the research necessary to find out the proper filing 2 date, despite Holland’s letters that went so far as to identify the 3 applicable legal rules. [Counsel] failed to inform Holland in a 4 timely manner about the crucial fact that the Florida Supreme Court 5 had decided his case, again despite Holland’s many pleas for that 6 information. And [counsel] failed to communicate with his client 7 over a period of years, despite various pleas from Holland that 8 [counsel] respond to his letters.”); Gibbs v. LeGrand, 767 F.3d at 9 886, n.6 (counsel’s failure to notify the petitioner of the state 10 supreme court’s denial of his appeal of his state post-conviction 11 petition until after the expiration of the statute of limitations, 12 and failure to communicate with the petitioner “over a period of 13 years,” despite the petitioner’s repeated inquiries, was egregious 14 conduct amounting to abandonment, and therefore constituted an 15 “extraordinary circumstance”); Spitsyn, 345 F.3d at 800 (“We have 16 not applied equitable tolling in non-capital cases where attorney 17 negligence has caused the filing of a petition to be untimely.”); 18 Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)(“We conclude 19 that . . . [petitioner’s counsel’s] negligence in general do[es] 20 not constitute extraordinary circumstances sufficient to warrant 21 equitable tolling.”). 22 23 While Petitioner admits he was able to contact his counsel in 24 2011 and obtain his file materials, (see Objection at 4), 25 Petitioner fails to allege why he did not file belated appeal 26 pleadings and/or post-conviction pleadings at an earlier time. 27 Petitioner also fails to allege how his counsel’s likely conflict 28 15 1 with Petitioner’s present petition for resentencing (see Objection 2 at 4, Exhibit “E” [letter from Deputy Alternate Public Defender 3 Sara Forrest to Petitioner dated January 27, 2021]) affected 4 Petitioner’s ability to file a federal habeas petition. Simply 5 put, Petitioner has failed to show extraordinary circumstances 6 beyond his control that made it impossible for him to file a timely 7 federal habeas petition. See Gaston v. Palmer, 417 F.3d 1030, 1034 8 (9th Cir. 2005)(equitable tolling not available where the 9 petitioner failed to meet burden of showing a “causal connection” 10 between the petitioner’s self-representation and his inability to 11 file a timely federal habeas petition). 12 13 Moreover, Petitioner’s unsubstantiated contention that he is 14 entitled to equitable tolling based on prison issues (i.e., the 15 Michigan “prison law library failed to provide California law 16 materials and forms and books,” and the Michigan prison law library 17 did not have computers until approximately 2010 or 2011, Objection 18 at 2), is unavailing. Petitioner has failed to meet his burden of 19 showing how those circumstances made it impossible for Petitioner 20 to file a timely federal habeas petition. See id.; Pelaya v. Cate, 21 2011 WL 976771, *7 (C.D. Cal. Jan. 18, 2011)(“[E]quitable tolling 22 . . . is not warranted because of the petitioner’s allegations of 23 unspecified lockdowns, delays in obtaining relevant legal 24 documents, or an inability to physically access a law library, as 25 prisoners familiar with the routine restrictions of prison life 26 must take such matters into account when calculating when to file 27 a federal petition.”). 28 16 1 Similarly, any possible claim for equitable tolling based on 2 Petitioner’s lack of understanding of the law also fails. See 3 Waldron-Ramsey, 556 F.3d at 1013 n.4 (“[We] have held that a pro se 4 petitioner’s confusion or ignorance of the law is not, itself, a 5 circumstance warranting equitable tolling.”); Rasberry v. Garcia, 6 448 F.3d 1150, 1154 (9th Cir. 2006)(“[A] pro se petitioner’s lack 7 of legal sophistication is not, by itself, an extraordinary 8 circumstance warranting equitable tolling.”). 9 10 In an attempt to bypass the statute of limitations hurdle, 11 Petitioner is claiming a “fundamental constitutional error 12 exception,” namely, when a trial court lacked jurisdiction over a 13 criminal case. (See Opposition at 2-3). However, Petitioner has 14 failed to cite, and the Court has been unable to locate, any 15 authority supporting such an exception for a state prisoner. 16 17 Because Petitioner has failed to demonstrate that he is 18 entitled to statutory or equitable tolling or that he is actually 19 innocent,10 the Court must find the First Amended Petition to be 20 10 A petitioner may claim actual innocence in an attempt to 21 bypass the statute of limitations hurdle. See McQuiggin v. 22 Perkins, 569 U.S. 383, 386 (2013)(“We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass 23 whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of 24 limitations.”). Under the actual innocence exception to the statute of limitations, a petitioner must show that “‘in light of 25 the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.’” Id. (quoting Schlup 26 v. Delo, 513 U.S. 298, 329 (1995)); see House v. Bell, 547 U.S. 518, 538 (2006)(“A petitioner’s burden at the gateway stage is to 27 (continued...) 28 17 1 untimely. 2 3 IV. RECOMMENDATION 4 5 For the foregoing reasons, IT IS RECOMMENDED that the Court 6 issue an Order: (1) approving and accepting this Final Report and 7 Recommendation; (2) granting Respondent’s Motion to Dismiss the 8 First Amended Petition; (3) denying the First Amended Petition for 9 Writ of Habeas Corpus; and (4) directing that judgment be entered 10 dismissing this action with prejudice. 11 12 DATED: April 28, 2021 13 /s/ ALKA SAGAR 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 10(...continued) demonstrate that more likely than not, in light of the new 20 evidence, no reasonable juror would find him guilty beyond a reasonable doubt-or, to remove the double negative, that more 21 likely than not any reasonable juror would have reasonable 22 doubt.”). Here, Petitioner has not shown that the actual innocence exception to the statute of limitations applies to this case. (See 23 Objection at 4-5). Moreover, Petitioner has not even purported to make a showing of actual innocence, supported by new reliable 24 evidence. See Schlup, 513 U.S. at 324 (“To be credible, [a claim of actual innocence] requires petitioner to support his allegations 25 of constitutional error with new reliable evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, 26 or critical physical evidence--that was not presented at trial.”). 27 28 18