EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a state prisoner proceeding without counsel this petition for writ of habeas corpus under 28 U.S.C. § 2254. Respondent moves to dismiss the action as time-barred and partially unexhausted. ECF No. 15. For the following reasons, the petition, with appropriate equitable tolling, must be considered timely but nonetheless should be dismissed with leave to amend for failure to exhaust all claims in the state courts.
Petitioner pleaded no contest to corporal injury to a child, corporal injury to a cohabitant, dissuading a witness, and assault with a deadly weapon (plus sentencing enhancements) in the criminal case underlying this petition. ECF No. 16, Resp't's Notice of Lodging Documents in Paper, Lodged Document (hereinafter "Lodg. Doc.") No. 1 at 3. The California Court of Appeal stated the underlying facts as follows:
Id. at 1-3. Petitioner was sentenced to sixteen years.
Respondent argues that the petition is untimely. Under the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), a one-year limitations period for seeking federal habeas relief begins to run from the latest of: (1) the date the judgment became final on direct review or the expiration of the time for seeking such review (or April 25, 1996, if the judgment became final prior to AEDPA's enactment), (2) the date on which a state-created impediment to filing is removed, (3) the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review, or (4) the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D); Malcom v. Payne, 281 F.3d 951, 955 (9th Cir. 2002).
No statute tolls the limitations period "from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed . . .." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). However, if a petitioner properly files a state post-conviction application prior to the expiration of the limitations period, the period is tolled and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). "[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is "pending" during the intervals between a lower court decision and the filing of a new petition in a higher court if the second petition was filed within a "reasonable time" after the denial of the first. Carey v. Saffold, 536 U.S. 214, 221 (2002); Stancle v. Clay, 692 F.3d 948, 956 (9th Cir. 2012); see also Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011) (finding that delays of ninety-one days and eighty-one days are "far longer than the Supreme Court's thirty-to-sixty-day benchmark for California's `reasonable time' requirement," and are, without adequate explanation, unreasonable under California law).
A federal habeas application does not provide a basis for statutory tolling, Duncan v. Walker, 533 U.S. 167, 181-82 (2001), nor does a state petition filed after the federal limitations period has expired, Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
A petitioner may be entitled to statutory tolling for the time that additional rounds of state habeas petitions are pending (provided they were filed prior to the expiration of the limitations period), although the time between rounds is not tolled. Cross v. Sisto, 676 F.3d 1172, 1178-79 (9th Cir. 2012); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). For tolling to be applied based on a subsequent round, that subsequent set of petitions cannot be untimely or improperly successive. Porter, 620 F.3d at 958.
The limitations period may also be equitably tolled where a habeas petitioner establishes two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631 (2010). Petitioner has the burden of showing facts entitling him to equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). The threshold necessary to trigger equitable tolling is very high, "lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Equitable tolling may be applied only where a petitioner shows that some external force caused the untimeliness. Id.
In addition, the statute of limitations is subject to an actual innocence exception.
Petitioner's appeal of his conviction was denied by the California Court of Appeal on September 9, 2013. Lodg. Doc. No. 1. Petitioner did not seek further direct review, but filed three state habeas petitions. The first was filed in the Sutter County Superior Court on June 1, 2014 and denied July 9, 2014. Lodg. Doc. Nos. 3, 4. The second was filed in the California Court of Appeal on September 16, 2014 and denied on September 25, 2014. Lodg. Doc. Nos. 5, 6. The last was filed in the California Supreme Court on October 17, 2014 and denied on April 29, 2015. Lodg. Doc. Nos. 8, 9. This petition was filed on March 31, 2016. ECF No. 1.
Respondent correctly notes that petitioner had 40 days from the date the Court of Appeals denied his direct appeal (September 9, 2013) to seek review in the California Supreme Court and that his conviction became final on the expiration of that 40 days. See Cal. R. Ct. 8.366(b)(1) ("[A] Court of Appeal decision in a [criminal case], including an order dismissing an appeal involuntarily, is final in that court 30 days after filing."); Cal. R. Ct. 8.500(e)(1) ("A petition for review must be served and filed within 10 days after the Court of Appeal decision is final in that court."). Thus, the limitations period began October 20, 2013 — the day after the deadline for seeking direct review from the California Supreme Court expired. It ran until petitioner filed his first state habeas petition on June 1, 2014, for a total of 224 days.
The limitations period was then tolled for the pendency of petitioner's state petitions. While respondent argues that the period should not be tolled between the ruling on his Superior Court petition on July 9, 2014 and the filing of his Court of Appeals petition on September 16, 2014 because that 69 day period is unreasonable, the weight of authority in this circuit finds such delays—which are so near the presumptively-reasonable window of 60 days—to be reasonable where, as here, the petitioner has revised the petition during the break. Compare Lodg. Doc. No. 3 with Lodg. Doc. No. 5; Lucas v. Holt, No. 2:14-cv-2357-WBS-EFB P, 2015 U.S. Dist. LEXIS 113415, at *10-12 (E.D. Cal. Aug. 26, 2015) (collecting cases). Accordingly, the limitations period began again on April 30, 2015, the day after the California Supreme Court denied the final petition.
Absent further tolling, the limitations period would expire 141 days later (added to the already-elapsed 224 days for a total of 365) — on September 18, 2015. Petitioner argues that two reasons justify equitable tolling of the limitations period, however. First, petitioner claims that he was "heavily sedated on psychotropic medications" between January 2015 and July 2015. ECF No. 21 at 2. The U.S. Court of Appeals for the Ninth Circuit has held that a "putative habeas petitioner's mental incompetency is a condition that is, obviously, an extraordinary circumstance beyond the prisoner's control" that justifies equitable tolling. Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003). But petitioner here has not shown that his mental illness, or the treatment he received for it, was such that it rendered him unable to file this petition. In fact, petitioner's evidence consists solely of a page entitled "Interdisciplinary Progress Notes—General Psychiatry" dated October 8, 2014 on which a psychiatrist noted: "Reports meds help and doing ok . . . . Depression better . . . . Eats and sleeps well, meds help; energy normal, jogs . . . ." ECF No. 21 at 9. The psychiatrist wrote that petitioner was "stable" and had "no acute issues." Id. Thus, the court lacks a basis on which to find that petitioner's mental illness or medication rendered him unable to file his federal petition and tolling for that reason is inappropriate.
Second, according to petitioner and two items of evidence he has produced, his legal materials were among property that was lost during his transfer to Pelican Bay State Prison on July 30, 2015. ECF No. 21 at 2, 10, 11. While petitioner got some of his property back in November 2015, the legal materials were not returned, having been thrown in the trash. Id. The deprivation of legal materials by prison officials constitutes an extraordinary circumstance that justifies equitable tolling. Espinoza-Matthews v. California, 432 F.3d 1021, 1027 (9th Cir. 2005). While respondent argues that petitioner has not shown how being deprived of his "transcripts" made him unable to file his petition, petitioner has shown that not only was he deprived of transcripts, but that the entirety of his legal materials was thrown out when he was transferred. Respondent also argues that petitioner was able to make his state filings without these materials (ECF No. 26 at 4) but the facts shown by petitioner are that the materials were thrown out on July 30, 2015, after all his state cases had ended. Thus, petitioner has shown that he was denied his legal property from July 30, 2015 onward and that this deprivation constitutes an extraordinary circumstance. In addition, petitioner has shown that he was pursuing his rights diligently, as his evidence shows that he tried to obtain his legal materials through at least two administrative appeals following his transfer. These factors justify the tolling of the limitations period from that date until the filing of this petition on March 31, 2016.
On July 30, 2015 (the date of petitioner's transfer and the loss of his legal materials), 92 additional days of the limitations period had elapsed (following the denial of his California Supreme Court petition). Adding that number to the 224 days that passed between the finality of the conviction and the filing of petitioner's state habeas petitions yields 316 days. Because, when statutory and equitable tolling principles are applied, less than 365 days elapsed between the finality of the conviction and the filing of this action, respondent's motion to dismiss the petition as untimely should be denied.
A district court may not grant a petition for a writ of habeas corpus unless the petitioner has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). A state will not be deemed to have waived the exhaustion requirement unless the state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3).
Exhaustion of state remedies requires that petitioners fairly present federal claims to the highest state court, either on direct appeal or through state collateral proceedings, in order to give the highest state court "the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotations omitted). "[A] state prisoner has not `fairly presented' (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law." Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by 247 F.3d 904 (9th Cir. 2000). "[T]he petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident . . . ." Id. (citations omitted); see also Gray v. Netherland, 518 U.S. 152, 162-63 (1996) ("[A] claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief."); Duncan, 513 U.S. at 365-66 (to exhaust a claim, a state court "must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.").
In addition to identifying the federal basis of his claims in the state court, the petitioner must also fairly present the factual basis of the claim in order to exhaust it. Baldwin v. Reese, 541 U.S. 27, 29 (2004); Robinson v. Schriro, 595 F.3d 1086, 1101 (9th Cir. 2010). "[T]he petitioner must . . . provide the state court with the operative facts, that is, `all of the facts necessary to give application to the constitutional principle upon which [the petitioner] relies.'" Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)). Where a claim included in a federal petition has not been exhausted, the petition must be dismissed with leave to amend and without prejudice to the filing of a fully-exhausted petition unless the petitioner has requested a stay. Rhines v. Weber, 544 U.S. 269 (2005). Petitioner has not requested a stay in this action.
The petition presents four claims: (1) false testimony was presented against him at trial by witness DeAnthony Ward; (2) petitioner's plea was not knowing and voluntary because he was not advised of his constitutional rights or the potential consequences of the plea; (3) the prosecutor withheld exculpatory evidence from the defense; and (4) trial counsel rendered ineffective assistance by representing that petitioner would get probation if he pleaded no contest and failing to investigate petitioner's mental disability. ECF No. 1. Respondent argues that the third claim was not presented to the California Supreme Court. Petitioner does not dispute that he did not present the claim to that court, and review of his petition there accords with respondent's position that the claim was not presented. Lodg. Doc. No. 7. Because petitioner has not presented his third claim to the California Supreme Court and has made no request to stay this action while he does so, respondent's motion to dismiss the petition as partially unexhausted should be granted without prejudice and with leave to amend to give petitioner the opportunity to file an amended petition that contains only exhausted claims or to seek a stay under Rhines, 544 U.S. at 277.
For the reasons presented above, respondent's motion to dismiss the petition on timeliness grounds should be denied. However, petitioner has not presented all of the claims contained in the instant petition to the California Supreme Court, and it is therefore RECOMMENDED that:
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
