1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDREW VALLES, Case No.: 21-cv-0819-GPC-WVG
12 Petitioner, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION GRANTING RESPONDENT’S MOTION TO 14 KATHLEEN ALLISON, Secretary, DISMISS AND DENYING A 15 Respondent. CERTIFICATE OF APPEALABILITY
16 17 18 On April 12, 2021, Petitioner Andrew Valles (“Petitioner”), a state prisoner 19 proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus 20 (“Petition”) pursuant to 28 U.S.C. § 2254. (Dkt. No. 1, Pet.) On January 3, 2022, he 21 filed an amended Petition. (Dkt. No. 16.) On April 25, 2022, Respondent filed a motion 22 to dismiss the amended Petition as untimely. (Dkt. No. 23.) Petitioner filed an 23 opposition on May 18, 2022. (Dkt. No. 25.) On August 11, 2022, Magistrate Judge 24 William V. Gallo issued a report and recommendation (“R&R”) granting Respondent’s 25 motion to dismiss. (Dkt. No. 28.) Petitioner filed an objection on August 24, 2022. 26 (Dkt. No. 29.) Based on the reasoning below, the Court ADOPTS the report and 27 recommendation and GRANTS Respondent’s motion to dismiss the petition for writ of 28 habeas corpus as time barred and DENIES a certificate of appealability. 1 Background 2 On August 27, 2018, Petitioner plead guilty to one count of conspiracy to procure 3 or offer false or forged instrument in violation of California Penal Code (“Penal Code”) 4 sections 182(a)(1)/115(a); six counts of conspiracy to commit grant theft in violation of 5 Penal Code sections 182(a)(1)/487(a); five counts of grand theft in violation of Penal 6 Code section 487(a) and one count of procuring or offering a false or forged instrument 7 in violation of Penal Code section 115. (Dkt. No. 24-1, Lodgment No. 1.) He also 8 admitted his crimes resulted in the loss of over $500,000 pursuant to Penal Code section 9 186.11(A)(2). (Id.) On May 15, 2019, Petitioner was sentenced to 13 years. (Dkt. No. 10 24-3, Lodgment No. 3.) Petitioner did not appeal his conviction and did not collaterally 11 attack his conviction. 12 Instead, Petitioner filed the instant petition for writ of habeas corpus on April 12, 13 20211 along with a motion for leave to proceed in forma pauperis. (Dkt. No. 1, Pet.; Dkt. 14 No. 2.) He alleged that his guilty plea was unlawfully induced in violation the First, 15 Fifth, Sixth and Fourteenth Amendments to the United States Constitution and he 16 received ineffective assistance of counsel in violation of the Sixth Amendment to the 17 United States Constitution. (Dkt. No. 1, Pet.) 18 On May 4, 2021, the Court granted Petitioner’s request to proceed in forma 19 pauperis and dismissed the Petition as unexhausted with leave to amend. (Dkt. No. 3 at 20 2.2) In that order, the Court noted that Petitioner did not allege he raised his claims 21 before the California Supreme Court, and, in fact, he indicated he had not sought review. 22 (Id.) 23 On June 8, 2021, Petitioner filed a motion for stay and abeyance, and on July 19, 24
25 26 1 The Court applies the mailbox rule and looks at the date the Petitioner signed his petition on April 12, 2021. See Butler v. Long, 752 F.3d 1177, 1178 n. 1 (9th Cir. 2014) (citing Houston v. Lack, 487 U.S. 27 266 (1988) (relying on date the petitioner signed the petition assuming he turned his petition over to the prison authorities on the same day he signed it)). 28 1 2021, filed a supplemental motion for stay and abeyance under Rhines v. Weber, 544 U.S. 2 269 (2005). (Dkt. Nos. 5, 8.) In the meantime, on June 4, 2021, Petitioner filed a petition 3 for writ of habeas corpus with the California Supreme Court exhausting his claims. (Dkt. 4 No. 24-4, Lodgment No. 4.) In that petition, he asked the California Supreme Court to 5 either decline or deny review of his petition. (Id. at 7.) On August 18, 2021, the 6 California Supreme Court denied the petition. (Dkt. No. 24-5, Lodgment No. 5.) On 7 November 2, 2021, the Magistrate Judge issued a report and recommendation that the 8 motion for stay and abeyance be denied as moot because Petitioner exhausted his claims 9 with the California Supreme Court. (Dkt. No. 12.) Ultimately, on November 30, 2021, 10 the Court adopted the report and recommendation denying the motion to stay and 11 abeyance as moot and directed Petitioner to file an amended petition by December 30, 12 2021. (Dkt. No. 14.) 13 Petitioner filed his amended Petition on December 29, 2021. (Dkt. No. 16 at 16.) 14 On April 25, 2022, Respondent filed a motion to dismiss the amended Petition as barred 15 by the one-year statute of limitations. (Dkt. No. 23.) Petitioner filed an opposition on 16 May 18, 2022. (Dkt. No. 25.) On August 11, 2022, the Magistrate Judge filed a R&R 17 granting Respondent’s motion to dismiss as time barred. (Dkt. No. 28.) On August 24, 18 2022, Petitioner filed objections to the R&R. (Dkt. No. 29.) 19 Discussion 20 A. Standard of Review of Report and Recommendation 21 The Court “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). If objections 23 are made, the Court reviews the magistrate judge’s findings and recommendations de 24 novo. 28 U.S.C. § 636(b)(1)(C); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 25 Cir. 2003) (en banc). When no objections are filed, the Court may assume the 26 correctness of the magistrate judge’s findings of fact and decide the motion on the 27 applicable law. Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974). Because 28 Petitioner has filed an objection to the Magistrate Judge’s Report, the Court conducts a de 1 novo review of the findings and recommendation. 2 B. Statute of Limitations 3 The Antiterrorism and Effective Death Penalty Act of 1996, (“AEDPA”) imposes a 4 one-year statute of limitations on petitions for writ of habeas corpus filed by state 5 prisoners. 28 U.S.C. § 2244(d). The limitations period runs from the latest of: 6 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 7
8 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States 9 is removed, if the applicant was prevented from filing by such State 10 action;
11 (C) the date on which the constitutional right asserted was initially 12 recognized by the Supreme Court, if the right has been newly 13 recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 14
15 (D) the date on which the factual predicate of the claim or claims presented 16 could have been discovered through the exercise of due diligence.
17 28 U.S.C. § 2244(d)(1)(A)-(D). The statute of limitations is a threshold issue that must 18 be resolved before the merits of individual claims. White v. Klitzkie, 281 F.3d 920, 921– 19 22 (9th Cir. 2002). 20 Respondent moves to dismiss the Petition on the ground that it is time-barred 21 pursuant to the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A). 22 (Dkt. No. 23-1 at 3-4.) Respondent explains that Petitioner’s case became final on July 23 15, 2019 and he was obligated to file his Petition in this Court by July 15, 2020. (Id. at 24 4.) Because the Petition was not filed until April 26, 2021, it is time barred. (Id.) 25 Further, Respondent maintains that Petitioner is not entitled to a later start date under § 26 2244(d)(1)(B)-(D) and not entitled to equitable tolling (Id. at 4, 5-6.) In opposition, 27 Petitioner did not dispute that his Petition was untimely under § 2244(d)(1)(A) but 28 1 claimed he was entitled to a later start date on the statute of limitations under § 2 2244(d)(1)(B) because the California Governor’s imposition of a statewide “stay at 3 home” order in March 2020 due to the COVID-19 pandemic was a “state impediment” 4 that prevented him from filing timely. (Dkt. No. 25 at 11-12.) He also claimed equitable 5 tolling applies because he demonstrated his due diligence and extraordinary 6 circumstances beyond his control due to the stay-at-home order imposed as a result of the 7 COVID-19 pandemic. (Id. at 12-13.) 8 The R&R concluded that Petitioner failed to meet any of the provisions of § 9 2244(d)(1)(A)-(D), that equitable tolling did not apply, and the Petition should be 10 dismissed as untimely. (Dkt. No. 28.) In his objections, Petitioner continues to argue 11 that § 2244(d)(1)(B) applies to make his Petition timely but modifies his argument, and 12 claims for the first time with new, additional documents3, that his lack of access to the 13 courts due to interference with prison officials was the “state impediment” preventing 14 him from timely filing. (Dkt. No. 29 at 5, 13-21.) Further, for the first time, he argues 15 that § 2244(d)(1)(D) applies because he claims that he did not learn about the factual 16 predicate of his claim until April 6, 2021. (Dkt. No. 29 at 7.) Additionally, Petitioner 17 claims he is entitled to equitable tolling, but again modifies his argument and now claims, 18 for the first time, that the extraordinary circumstance beyond his control was his lack of 19 access to the courts interfered with by prison officials. (Id. at 5, 11.) Finally, he argues 20 that cause and prejudice, an exception to the statute of limitations, applies. (Id. at 3, 11- 21 12; 23-25.) 22 Even though Petitioner raises new arguments and evidence to support timeliness 23 under §§ 2244(d)(1)(A) & (D), and equitable tolling in his objections, the Court exercises 24 its discretion to consider them. See Sossa v. Diaz, 729 F.3d 1225, 1230-31 (9th Cir. 25
26 3 The new, additional documents totaling about 250 pages submitted in support of his objections include 27 documents that post-date the statute of limitations in this case and are not supportive to demonstrate that he is entitled to a later start date on the statute of limitations. (See Dkt. No. 29, Dkt. No. 29-1; Dkt. No. 28 1 2013) (because petitioner was proceeding pro se and making a novel claim, “district court 2 was obligated to consider [petitioner’s] new equitable tolling argument raised in his 3 objections to the R & R. The argument was not waived and was properly preserved for 4 our review.”); United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (“we conclude 5 that a district court has discretion, but is not required, to consider evidence presented for 6 the first time in a party's objection to a magistrate judge's recommendation.”); Espinoza– 7 Matthews v. California, 432 F.3d 1021, 1026 n. 4 (9th Cir. 2005) (“Because [petitioner] 8 was a pro se petitioner at all relevant times, we hold that the district court should have 9 exercised its discretion to review the supplemental evidence that [petitioner] submitted.”). 10 1. 28 U.S.C. § 2244(d)(1)(A) 11 Petitioner was convicted on May 15, 2019; therefore, Petitioner’s judgment 12 became final for the purposes of AEDPA on July 14, 2019, sixty days after the deadline 13 to file an appeal. See Cal. R. Ct. 8.308(a); Roberts v. Marshall, 627 F.3d 768, 771 (9th 14 Cir. 2010) (state court conviction became final sixty days after his conviction under Cal. 15 R. Ct. 8.308(a)). Pursuant to § 2244(d), Petitioner had until July 14, 2020 to file a federal 16 habeas petition. Here, Petitioner filed the original Petition on April 12, 2021 about nine 17 months late. (Dkt. No. 1, Pet.) Therefore, his petition is not timely. The Court looks to 18 whether the tolling provisions under §§ 2244(d)(1)(B) & (D), equitable tolling, and cause 19 and prejudice, apply to extend the filing deadline for Petitioner. 20 2. 28 U.S.C. § 2244(d)(1)(B) 21 Respondent summarily asserts the original Petition was not timely filed because 22 there were no State created impediments that barred Petitioner from filing earlier under § 23 2244(d)(1)(B). (Dkt. No. 23-1 at 4.) In his opposition, Petitioner maintained that the 24 Governor of California imposed a statewide “stay at home” order due to the COVID-19 25 pandemic shutting down the entire state in March 2020 creating a “state impediment.” 26 (Dkt. No. 25 at 11.) Due to the shutdown, prison movement was extremely limited and 27 inmate programs were suspended. (Id. at 12.) He asserts that law library was closed 28 from March 2020 to May-June 2021 for physical prisoner access, and his right to access 1 to the courts was paused in favor of penological interests and the law library paging 2 system was woefully deficit, truly unintelligible for use, and understaffed. (Id.) He 3 alleges that he visited the law library twice during this period, once in July 2020 for 15 4 minutes and once in January 2021 for 30 mins. (Id.) The “stay at home” order remained 5 in place from March 2020 to May-June 2021. (Id.) He claims that the “state 6 impediment” was removed on March 8, 2021 when he was allowed to visit the law 7 library. (Id. at 17.) 8 The R&R failed to recognize Petitioner’s § 2244(d)(1)(B) argument and concluded 9 that Petitioner did not address whether a state-created impediment arose to prevent the 10 timely filing of his Petition and explain how the delay was due to state created 11 impediments. (Dkt. No. 28 at 5.) Nonetheless, in his objections, Petitioner does not 12 maintain and preserve the argument that the “stay at home” order was the “state 13 impediment”4 but, instead, presents a new argument that the unconstitutional “state 14 impediment” was the violation of his constitutional right to access to the courts by prison 15 officials’ interference with his attempt to pursue legal actions. (Dkt. No. 29 at 3, 5, 13- 16 21.) 17 Section 2244(d)(1)(B) delays accrual of the one year limitations period and the 18 period “shall run from the . . . date on which the impediment to filing an application 19 created by State action in violation of the Constitution or laws of the United States is 20 removed[.]” 28 U.S.C. § 2244(d)(1)(B). Under § 2244(d)(1)(B), the state action must be 21 a violation of the Constitution or laws of the United States. See 28 U.S.C. § 22 2244(d)(1)(B); Mack v. Alves, 578 F. Supp. 3d 154, 157 (D. Mass. Dec. 30, 2021) 23
24 25 4 Even if the alleged state created impediment of the Governor’s stay at home order or the prison official’s imposition of restrictions due to the COVID 19 pandemic was still an issue, Petitioner has not 26 shown that the alleged state impediment prevented him from timely filing as Petitioner failed to demonstrate he is entitled equitable tolling as discussed below. See Gaston v. Palmer, 417 F.3d 1030, 27 1035 (9th Cir. 2005) (“[T]he district court's rejection of equitable tolling . . . constitutes an implicit rejection of [the] impediment argument.”); see also Ramirez v. Yates, 571 F.3d 993, 1000 (9th Cir. 2009) 28 1 (statutory requirement the state-created impediment that prevented his filing his petition 2 timely was a violation of the Constitution or laws of the United States not met where 3 Petitioner argued that COVID-19 prevented access to the library.); Akins v. United States, 4 204 F.3d 1086, 1090 (11th Cir. 2000) (lockdowns for disciplinary reasons and violent 5 outbreaks in the facility was a legitimate penological interest and not an unconstitutional 6 impediment). In addition, “[t]o obtain relief under § 2244(d)(1)(B), the petitioner must 7 show a causal connection between the unlawful impediment and his failure to file a 8 timely habeas petition.” Bryant v. Arizona, 499 F.3d 1056, 1060 (9th Cir. 2007) (lack of 9 access to case law during the relevant time period was not an impediment for purposes of 10 statutory tolling because it did not prevent [the petitioner] from filing his petition.”). 11 Delayed accrual is warranted pursuant to § 2244(d)(1)(B) only if the state impediment 12 prevents a petitioner “from presenting his claims in any form, to any court.” Ramirez v. 13 Yates, 571 F.3d 993, 1001 (9th Cir. 2009) (emphasis in original) (citation omitted) 14 (petitioner filed three state habeas petitions to state courts during period he was in 15 administrative segregation); see also Shannon v. Newland, 410 F.3d 1083, 1088 (9th Cir. 16 2005) (section 2244(d)(1)(B) applies “when a petitioner has been impeded from filing a 17 habeas petition”). The petitioner must satisfy a “higher bar than that for equitable 18 tolling” to qualify for the relief provided under § 2244(d)(1)(B). Ramirez, 571 F.3d at 19 1000. 20 In his objections, Petitioner acknowledges that the state impediment must be 21 unconstitutional or unlawful; therefore, for the first time, modifies his position and 22 maintains that his constitutional right to access to the courts through prison officials’ 23 interference with his attempt to pursue legal actions, has been violated. (Dkt. No. 29 at 3, 24 5.) 25 Prisoners have a constitutional right to access to the courts, Bounds v. Smith, 430 26 U.S. 817, 828 (1997), as long as he or she can demonstrate an actual injury. Lewis v. 27 Casey, 518 U.S. 343, 352 (1996). A prisoner must establish that he was denied 28 “meaningful access to the courts” showing that the “alleged shortcomings in the library 1 or legal assistance program hindered his efforts to pursue a legal claim. Id. at 351. 2 “[T]he Constitution does not guarantee a prisoner unlimited access to a law library. 3 Prison officials must regulate the time, manner, and place in which library facilities are 4 used.” Johnson v. Moore, 948 F.2d 517, 521 (9th Cir. 1991) (quoting Lindquist v. Idaho 5 State Bd. of Corrections, 776 F.2d 851, 858 (9th Cir. 1985)). 6 In support, Petitioner presents the following timeline as “state impediments” 7 during the one-year period, from July 14, 2019 to July 14, 2020. (Dkt. No. 29 at 13-21.) 8 After he was sentenced on May 15, 2019, Petitioner claims he was placed in protective 9 custody housing at George Bailey Detention Facility (“GBDF”) which does not have a 10 law library, until June 19, 2019. (Dkt. No. 29 at 13.) When he inquired about visiting a 11 law library, county sheriff’s deputies responded “You’re P.C. You have no right to law 12 library,” 2) “you are still represented by an attorney. So you are not entitled to use law 13 library facilities,” and 3) “We don’t have a law library here”. (Id.) 14 From June 21, 2019 to July 16, 2019, Petitioner was then transported and housed at 15 California Institution for Men (“CIM”). (Id. at 15.) Upon arrival, he was placed in 16 “sensitive needs yard”, similar to protective custody, and was subject to 23.5 hours of 17 total confinement and only permitted out for breakfast and dinner meals and outdoor 18 recreation once every four days. (Id.) Every request, verbal and written, to visit the law 19 library was rejected, ignored or laughed at. (Id.) He also claims he was unaware of his 20 appeal rights or the one-year statute of limitations period and was kept in the dark while 21 at GBDF and CIM; therefore, due to his negligence, he was unable to investigate. (Id. at 22 15, 19.) 23 Then, from July 18, 2019 to February 10, 2020, he was placed in federal custody.5 24 On July 18, 2019, he was transported to MDC6 Los Angeles and then subsequently to 25
26 5 According to documents attached to his opposition, Petitioner was arrested, charged, plead guilty and 27 sentenced in the United States District Court for the Southern District of New York for failing to register as a sex offender. (Dkt. No. 16, Am. Pet. at 13; Dkt. No. 25-5.) 28 1 MDC Brooklyn. (Id. at 17.) He claims that at MDC Los Angeles, the electronic law 2 library was limited to federal case law and statutes and he could not research state 3 caselaw or statutes which he claims he needed for his Petition.7 (Id.) While at MDC 4 Brooklyn, the conditions were the same as MDC Los Angeles, and while the electronic 5 law library resources were useful for his federal case, it was not as to his California state 6 case. (Id.) He returned to CIM around February 10 or 12, 2020. (See id. at 15, 17.) 7 When he returned to CIM, he was again subject to around the clock controlled 8 movement that included a “total obstruction to the Law Library once again” until early 9 July 2020. (Id. at 15.) On July 17, 2020, he was allowed to visit the law library but for 10 only 15 minutes; however, the statute of limitations had already lapsed on July 14, 2020. 11 (Id.) 12 As a threshold matter, during the statute of limitations period, Petitioner claims 13 that he was unaware of the statute of limitations deadline while housed at GBDF and 14 CIM; therefore, he was unable to investigate. (Dkt. No. 29 at 15, 19.) However, the 15 Ninth Circuit has held ignorance of the law is not a reason to prevent the statute of 16 limitations from running. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) 17 (“a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary 18 circumstance warranting equitable tolling”); Whalem/Hunt v. Early, 233 F.3d 1146, 1149 19 (9th Cir. 2000) (en banc) (concurrence distinguishing between a “petitioner’s knowledge 20 of the legal basis of his claims”, which does not provide a basis for tolling or an 21 impediment to filing, and the petitioner’s “knowledge of the procedural rules that must be 22 complied with in order to get a hearing on the merits”, which may provide a basis for 23 tolling or an impediment to filing). Therefore, in this case, Petitioner’s lack of 24
25 26 7 Petitioner also claims while in federal custody, he could not access California state court records or maintain any study notes due to his subsequent transfer to MDC Brooklyn. (Dkt. No. 29 at 17.) 27 However, he does not bring a failure to access his state court records as a basis for the “state impediment” under § 2244(d)(1)(B); instead, he claims that he was denied his constitutional right to 28 1 knowledge or ignorance of the statute of limitations deadline is not a “state impediment” 2 to filing. See id. 3 Even if the Court accepts as true Petitioner’s inability to access the law library 4 from May 15, 2019 to July 16, 2019 and from February 10/12, 2020 to July 14, 2020 5 because he was in protective custody, Petitioner has not shown that he was denied access 6 to the law library or that prison officials interfered with his right to access to the courts 7 during the seven month period while he was in federal custody. He, in fact, 8 acknowledges he had access to the electronic law library, which contained only federal 9 materials and was useful in his federal case. (Dkt. No. 29 at 17.) 10 Petitioner’s argument that he could not access state caselaw or statutes is not 11 persuasive. A habeas petition filed in federal court must comply with AEDPA, a federal 12 statute, where in order to prevail, he must demonstrate that the state court judgment “(1) 13 resulted in a decision that was contrary to, or involved an unreasonable application of, 14 clearly established Federal law, as determined by the Supreme Court of the United 15 States.” See 28 U.S.C. § 2254(d)(1). Therefore, federal law applies to the claims in the 16 Petition and because federal caselaw and statutes were available to Petitioner at the 17 MDCs, Petitioner has not shown an unconstitutional or unlawful “state impediment” 18 prevented him from timely filing his Petition under § 2244(d)(1)(B). 19 3. 28 U.S.C. § 2244(d)(1)(D) 20 Next, AEDPA provides that, in certain cases, its one-year limitations period shall 21 run from “the date on which the factual predicate of the claim or claims presented could 22 have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). 23 Respondent argues that Petitioner has known or should have known the factual 24 predicates of his claims since at least May 15, 2019 when he was sentenced and pled 25 guilty. (Dkt. No. 23-1 at 4.) In his opposition, without supporting facts or reasons why, 26 Petitioner argues that the clock should be reset to begin either in March 2021, the earliest, 27 April 12, 2021 or May 2021, the latest, when prison operations reopened. (Dkt. No. 25 at 28 13.) In addition, in his amended Petition, Petitioner summarily asserts that he did not 1 appeal his conviction because the deadline to do so had expired by the time he exercised 2 due diligence and learned the factual predicate to his claims concerning his federal 3 habeas claims around April 6, 2021 relying on 28 U.S.C. § 2244(d)(1)(D). (Dkt. No. 16, 4 Am Pet. at 7, 14-15.) 5 The R&R concluded that Petitioner’s reasons seeking tolling under § 6 2244(d)(1)(D) was factually unsupported. (Dkt. No. 28 at 5-6.) In his objections, 7 Petitioner summarily repeats that he did not learn about the factual predicates to support 8 his claims until April 6, 2021. (Dkt. No. 29 at 4-5.) Yet, Petitioner does not provide any 9 facts to support a basis to toll the statute of limitations under § 2244(d)(1)(D). Thus, the 10 Court concludes that Petitioner has failed to demonstrate an entitlement to a later start 11 date on the statute of limitations under § 2244(d)(1)(D). See James v. Borg, 24 F.3d 20, 12 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of 13 specific facts do not warrant habeas relief.”). 14 4. Equitable Tolling 15 Equitable tolling of the statute of limitation is appropriate when the petitioner can 16 show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 17 circumstance stood in his way.’” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting 18 Pace v. DiGuglielmo, 544 U.S. 408 418 (2005)). First, “[t]he diligence required for 19 equitable tolling purposes is ‘reasonable diligence,’ not ‘maximum feasible diligence.’” 20 Id. at 653; see also Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012). The failure to 21 file a timely petition must be the result of external forces, not the result of the petitioner’s 22 lack of diligence. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). 23 Next, a petitioner is entitled to equitable tolling of AEDPA’s one-year statute of 24 limitations where “‘extraordinary circumstances beyond a prisoner’s control made it 25 impossible’” to file a timely petition. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 26 2003) (quoting Brambles v. Duncan, 330 F.3d 1197, 1202 (9th Cir. 2003)). A petitioner 27 seeking equitable tolling “must show that the extraordinary circumstances were the cause 28 of his untimeliness.” Bryant v. Ariz. Att'y Gen., 499 F.3d 1056, 1061 (9th Cir. 2007); see 1 Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003) (petitioner entitled to 2 equitable tolling “since prison officials' misconduct proximately caused the late filing.”). 3 A literal impossibility to file, however, is not required. Grant v. Swarthout, 862 F.3d 4 914, 918 (9th Cir. 2017) (stating that equitable tolling is appropriate even where “it 5 would have technically been possible for a prisoner to file a petition,” so long as the 6 prisoner “would have likely been unable to do so.”). 7 “‘[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very 8 high, lest the exceptions swallow the rule.’” Miranda v. Castro, 292 F.3d 1063, 1066 9 (9th Cir. 2002) (alteration in original) (quoting United States v. Marcello, 212 F.3d 1005, 10 1010 (7th Cir. 2000)). “Determining whether equitable tolling is warranted is a ‘fact- 11 specific inquiry.’” Spitsyn, 345 F.3d at 799 (quoting Frye v. Hickman, 273 F.3d 1144, 12 1146 (9th Cir. 2001)). 13 Respondent contends that Petitioner is not entitled to equitable tolling because he 14 has not alleged any grounds to support equitable tolling and nothing in the record 15 suggests his untimely filing of the petition was due to an extraordinary circumstance 16 beyond his control. (Dkt. No. 23-1 at 6.) Petitioner opposes arguing that he 17 demonstrated due diligence by having filed his petition and amended petition in this 18 Court as well as his other habeas petitions in other courts and that the “stay at home” 19 order due to the COVID 19 pandemic was an extraordinary circumstance beyond his 20 control and prevented him from timely filing his petition. (Dkt. No. 25 at 12-13.) He 21 claims that the one-year statute of limitations should begin either in March 2021, April 22 12, 2021, or May 2021 the latest, which is when prison operations reopened. (Id. at 13.) 23 The R&R concluded that Petitioner failed to demonstrate the existence of 24 extraordinary circumstances due to general claims of prison lockdowns and lack of access 25 to the law library due to the COVID-19 pandemic. (Dkt. No. 28 at 7-8.) The R&R noted 26 that a petitioner must set forth specific facts related to the pandemic that hindered his 27 ability to timely file a habeas petition. (Id. at 8.) The R&R also explained that while 28 there was a four-month period when Petitioner was denied access to the law library due 1 to COVID 19, Petitioner failed to explain why he was not able to file a petition in the 2 eight months prior to the lockdown. (Id. at 9.) 3 The Court agrees that Petitioner has failed to set forth facts related to the pandemic 4 that hindered his ability to timely file a habeas petition. In the opposition, Petitioner 5 simply asserts that the due to the Governor’s statewide “stay at home” order due to the 6 COVID-19 pandemic, prisoner movement was extremely limited, inmate programs were 7 suspended, and the law libraries were closed to physical access from March 2020 to 8 March 2021. (Dkt. No. 25 at 11-12.) Further, he claims that the law library paging 9 system was “woefully deficient”, unintelligible and understaffed. (Id.) He also 10 summarily asserts that he acted with due diligence as demonstrated by the filing of the 11 Petition and Amended Petition as well as his other habeas petitions8. (Id. at 12.) 12 A petitioner must show diligence throughout the one-year statute of limitations. 13 See Smith v. Davis, 953 F.3d 582, 593 n.3 (9th Cir. 2020) (“has been pursuing his rights 14 diligent” . . . “indicates a need for a petitioner to show his diligence continued up through 15 the point of filing his habeas petition in federal court.”). Courts have recognized the 16 impediments to legal research and law library access were imposed on prisoners due to 17 the COVID-19 pandemic but have held that petitioners must demonstrate or explain how 18 they were diligent in pursuing their rights despite the restrictions. See Donald v. Pruitt, 19 853 Fed. App’x 230, 234 (10th Cir. 2021) (petitioner not entitled to equitable tolling 20 based on limited access to the law library during COVID-19 and petitioner failed to 21 demonstrate he was pursuing his rights during the period before the COVID-19 22 restrictions took effect); Mack, 578 F. Supp. 3d at 157 (petitioner did not establish that he 23 diligently pursued his rights during the pendency of the limitations period and unable to 24 show “why the resources at his disposal during the pendency of those restrictions, 25 including postal mail, were insufficient for that purpose.”); Sloan v. United States, Case 26
27 8 Petitioner merely states “other habeas petitions exhibited therein” without providing any details what 28 1 No. 18-cr-40051, 2021 WL 6102164, at *3 (C.D. Ill. Dec. 23, 2021) (petitioner failed to 2 explain why he was not able to pursue his claim prior to the COVID-19 pandemic when 3 law library access was not limited and failed to explain any steps he took to pursue his 4 claim while library access was limited due to COVID-19 restrictions); United States v. 5 Henry, Civil No. 2:20-cv-01821, 2020 WL 7332657, at *4 (W.D. Pa. Dec. 14, 2000) 6 (“The bottom line is that the COVID-19 pandemic does not automatically warrant 7 equitable tolling for any petitioner who seeks it on that basis. The petitioner must 8 establish that he was pursuing his rights diligently and that the COVID-19 pandemic 9 specifically prevented him from filing his motion.”). 10 Here, the Court has already concluded that, under § 2244(d)(1)(B), Petitioner 11 failed to demonstrate an unconstitutional or unlawful “state impediment” to support his 12 untimely filing while he was in federal custody because he had access to the law library 13 and relevant legal research materials. At the same time, Petitioner has not explained how 14 he was diligent in pursuing his rights while in federal custody from July 18, 2019 to 15 February 10, 2020, the period before the COVID-19 restrictions.9 16 Moreover, once COVID-19 restrictions were imposed in March 2020, besides 17 complaining of the restrictions to the law library and law library paging systems, 18 Petitioner is silent as to any actions he took to pursue and file his claims despite these 19 restrictions. See Vanderark v. Greene, No. 20-1417, 2021 WL 2228059, at *3 (C.D. Ill. 20 June 2, 2021) (“Numerous habeas petitions have been filed in this Court over the last 21 year. . . despite limitations caused by the COVID-19 pandemic.”); Sloan, 2021 WL 22 6102164, at *3 (“Notably, at no time during this pandemic have litigants been unable to 23 file pleadings with the Court.”). Therefore, Petitioner has failed to demonstrate “due 24 diligence” in pursuing and filing his claims during the COVID-19 restrictions from 25 March 2020 through July 14, 2020 when the one year statute of limitations expired. 26
27 9 Petitioner has also not explained how he was diligent from February 10, 2020 when he returned to state 28 1 In his objections, Petitioner also raises a new argument that he was denied his right 2 to access to the courts through inadequate facilities or assistance from prison officials 3 which warrants equitable tolling while he was in federal custody. (Dkt. No. 29 at 10-11, 4 17-18, 21.) He additionally argues, for the first time, that his trial counsel’s failure or 5 refusal to provide him with his case file created extraordinary circumstances beyond his 6 control that delayed the filing of his habeas petition. (Id.) 7 As previously held, Petitioner failed to explain his due diligence in the pursuit of 8 his claims and, on this basis, the Court finds that Petitioner is not entitled to equitable 9 tolling. See Pace, 544 U.S. at 418 (a party seeking equitable tolling bears the burden of 10 two elements – pursuing his rights diligently and some extraordinary circumstance stood 11 in the way); Chaidez v. Tilton, No. CIV S–08–1980 JAM EFB P, 2009 WL 3048911, at 12 *4 (E.D. Cal. Sept. 18, 2009) (because extraordinary circumstance was not demonstrated, 13 the court declined to consider issue of diligence). 14 Nonetheless, even if the Court considered the second factor, Petitioner has not 15 demonstrated extraordinary circumstances beyond his control that prevented his timely 16 filing of a petition. While a complete lack of access to a law library and legal materials 17 may constitute an extraordinary circumstance that qualifies for equitable tolling, limited 18 access does not. See Ramirez, 571 F.3d at 998 (recognizing that a “complete lack of 19 access to a legal file may constitute an extraordinary circumstance” but “[o]rdinary prison 20 limitations on [petitioner’s] access to the law library” is not “extraordinary”); Robinson v. 21 Marshall, 405 Fed. Appx. 241 (9th Cir. 2010) (equitable tolling claim fails because 22 prisoner “did not demonstrate how limited access to the library was the cause of his 23 failure to timely file his petition”). 24 In this case, Petitioner admits he had access to the electronic law library while 25 housed in federal detention facilities containing relevant federal legal materials from 26 around July 18, 2019 to February 10, 2020. In fact, all 22 of the cases relied upon by 27 Petitioner in his attached exhibit to his original petition (ECF No. 1, Ex. B) are cases 28 decided by the United States Supreme Court or a federal appellate court. The Petitioner’s 1 claim and discussion consists of a page and a half which belies the idea that limited 2 access to the law library was the cause of Petitioner’s failure to file a timely petition. The 3 Court concludes that Petitioner has failed to demonstrate that inadequate facilities or 4 prison officials’ interference with his access to the courts constitute extraordinary 5 circumstance beyond his control which prevented him from filing a timely petition. 6 Petitioner additionally argues that if lack of access to the courts does not 7 demonstrate extraordinary circumstances, then his attorney’s misconduct by failing to 8 provide him with his case file constitutes an extraordinary circumstance. (Dkt. No. 29 at 9 21.) He asserts that he made an in-person request for his case file on May 15, 2019, then 10 made written requests by mail around May 20, 2019, and May 29, 2021, made a request 11 via a New York Federal Defender on August 5, 2019, another request by email via 12 another counsel on November 24, 2019, and then again on January 9, 2020, February 9, 13 2020, and March 17, 2021. (Id.) In essence, he claims that he never received his case 14 file, yet he was able to file the Petition on April 12, 2021. The petition itself is primarily 15 based upon interactions between Petitioner and his defense lawyer where certain 16 promises and representations were made and broken. Therefore, his attorney’s alleged 17 failure to provide him with his state court case file was not an extraordinary circumstance 18 beyond his control to support equitable tolling. In sum, Petitioner is not entitled to 19 equitable tolling. 20 5. Cause and Prejudice 21 Finally, in his objections, Petitioner raises for the first time that “cause and 22 prejudice” that causes a “fundamental miscarriage of justice” is an exception to the 23 statute of limitations.10 (Dkt. No. 29 at 3.) Specifically, he claims that his attorney’s 24 ineffective assistance of counsel and prosecutorial misconduct in inducing his guilty plea 25 26 27 10 Petitioner argues that the Respondent and the R&R fail to recognize “cause and prejudice” was raised in the amended Petition. (Dkt. No. 29 at 3.) However, the amended Petition did not raise “cause and 28 1 constitute a fundamental miscarriage of justice, and as such, constitute cause and 2 prejudice that should excuse his untimely filing. (Id. at 11-12; 23-25.) 3 Petitioner improperly conflates the “cause and prejudice” exception based on a 4 state procedural default with an exception under AEDPA’s statute of limitations. See 5 Hultman v. Paramo, No. ED CV 18-1439-CJC (PLA), 2019 WL 3213731, at *4 (C.D. 6 Cal. May 13, 2019) (“Petitioner's argument that he has shown cause and prejudice 7 warranting an exception to the procedural bar doctrine is irrelevant to this timeliness 8 determination . . . .”). 9 “In all cases in which a state prisoner has defaulted his federal claims in state court 10 pursuant to an independent and adequate state procedural rule, federal habeas review of 11 the claims is barred unless the prisoner can demonstrate cause for the default and actual 12 prejudice as a result of the alleged violation of federal law, or demonstrate that failure to 13 consider the claims will result in a fundamental miscarriage of justice.” Coleman v. 14 Thompson, 501 U.S. 722, 750 (1991) (emphasis added). Whether a habeas petition is 15 procedurally barred from federal review due to a state procedural rule is a separate 16 determination from whether the petition is timely filed under AEDPA's statute of 17 limitations. See Holland v. Florida, 560 U.S. 631, 650 (2010) (noting the doctrine of 18 procedural default asks whether “federal courts may excuse a petitioner's failure to 19 comply with a state court's procedural rules, notwithstanding the state court's 20 determination that its own rules had been violated . . . [e]quitable tolling, by contrast, 21 asks whether federal courts may excuse a petitioner's failure to comply with federal 22 timing rules, an inquiry that does not implicate a state court's interpretation of state law” 23 (emphasis in original)); see also Cooper v. Neven, 641 F.3d 322, 328 (9th Cir. 2011) 24 (“whether . . . [a federal petitioner's] claims run afoul of AEDPA's statute of limitations is 25 a separate issue” from “the district court's procedural default findings”). Therefore, 26 Petitioner’s argument that cause and prejudice may constitute an exception to AEPDA’s 27 statute of limitations is not meritorious. 28 While AEDPA's statute of limitations has no “cause and prejudice” exception, 1 under Schlup v. Delo, 513 U.S. 298 (1995), “a credible claim of actual innocence 2 constitutes an equitable exception to AEDPA's limitations period, and a petitioner who 3 makes such a showing may pass through the Schlup gateway and have his otherwise 4 time-barred claims heard on the merits.” Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 5 2011); see McQuiggin v. Perkins, 569 U.S. 383, 391-396 (2013) (holding that “actual 6 innocence gateway” to federal habeas review that applies to procedural bars in Schlup v. 7 Delo, 513 U.S. 298, 327 (1995), and House v. Bell, 547 U.S. 518 (2006), extends to 8 petitions that are time-barred under AEDPA). However, “[i]n order to present otherwise 9 time-barred claims to a federal habeas court under Schlup, a petitioner must produce 10 sufficient proof of his actual innocence to bring him within the narrow class of cases . . . 11 implicating a fundamental miscarriage of justice.” Lee, 653 F.3d at 937 (internal 12 quotation marks and citation omitted). “To be credible, such a claim requires petitioner 13 to support his allegations of constitutional error with new reliable evidence—whether it 14 be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 15 evidence—that was not presented at trial.” Schlup, 513 U.S. at 324. 16 Petitioner improperly seeks relief under the “cause and prejudice” standard instead 17 of through the actual innocence Schlup gateway. However, even if he were asserting 18 actual innocence, he has not argued that he is innocent of the underlying charges he was 19 convicted on or provided the requisite “new reliable evidence” required for an actual 20 innocence claim. See Fahr v. Arizona, No. CV-20-8114-PCT-DGC(DMF), 2021 WL 21 3668882, at *13 (D. Az. Mar. 16, 2021) (actual innocence provides no relief because she 22 admitted her guilt by pleading guilty and did not provide any new reliable evidence to 23 support actual innocence). Therefore, Petitioner has not presented a credible claim of 24 actual innocence such that he “may pass through the Schlup gateway and have his 25 otherwise time-barred claims heard on the merits.” Lee, 653 F.3d at 932. Petitioner’s 26 argument seeking an exception to AEDPA’s statute of limitations is without merit. 27 / / / 28 / / / 1 C. Certificate of Appealability 2 Under AEDPA, a state petitioner seeking to appeal a district court’s denial of a 3 habeas petition must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). 4 The district court may issue a certificate of appealability if the petitioner “has made a 5 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 6 Section 2253(c)(1) applies to an appeal of a final order entered on a procedural question 7 antecedent to the merits, for instance a dismissal on statute of limitations 8 grounds. See Slack v. McDaniel, 529 U.S. 473, 483 (2000). “Determining whether a 9 COA should issue where the petition was dismissed on procedural grounds has two 10 components, one directed at the underlying constitutional claims and one directed at the 11 district court's procedural holding.” Id. at 484-85. “When the district court denies a 12 habeas petition on procedural grounds without reaching the prisoner's underlying 13 constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of 14 reason would find it debatable whether the petition states a valid claim of the denial of a 15 constitutional right and that jurists of reason would find it debatable whether the district 16 court was correct in its procedural ruling.” Id. at 484; see also James v. Giles, 221 F.3d 17 1074, 1077 (9th Cir. 2000). As each of these components is a “threshold inquiry,” the 18 federal court “may find that it can dispose of the application in a fair and prompt manner 19 if it proceeds first to resolve the issue whose answer is more apparent from the record and 20 arguments.” Slack, 529 U.S. at 485. Supreme Court jurisprudence “allows and 21 encourages” federal courts to first resolve the procedural issue. See id. 22 The Court concludes that Petitioner has not made a showing that reasonable jurors 23 would find it debatable whether he states a valid claim of the denial of a constitutional 24 right and whether its procedural ruling is incorrect. Accordingly, the Court DENIES a 25 certificate of appealability. 26 Conclusion 27 Based on the above, the Court GRANTS Respondent’s motion to dismiss the 28 amended petition for writ of habeas corpus as time barred. The Court also DENIES a 1 || certificate of appealability. The Court further DENIES Petitioner’s motion to expedite 2 || ruling, filed on November 28, 2022, as moot. (Dkt. No. 30.) The Clerk of Court is 3 || directed to close the case. 4 IT IS SO ORDERED. 5 ||Dated: March 10, 2023 □□ 6 Cor athe Cade 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28