RALPH ZAREFSKY, Magistrate Judge.
Pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California, the undersigned submits this Report and Recommendation to the Honorable Philip S. Gutierrez, United States District Judge. The undersigned recommends that the Court grant Respondent's motion to dismiss and dismiss Claims Two and Four and portions of Claim Three of the Second Amended Petition with prejudice as untimely.
A Los Angeles County jury convicted Petitioner William Sadowski of murdering a police officer, with findings that the murder was committed during a carjacking and that he had used a deadly weapon to commit the murder (CAL. PENAL CODE §§ 187, 190.2, 12022). (Lodged Doc. No. 1.) Petitioner was sentenced to life without the possibility of parole, plus a determinate aggregate concurrent term of fifteen years.
Petitioner timely appealed his conviction to the California Court of Appeal. On May 31, 2011, the Court of Appeal affirmed the judgment. Petitioner then filed a petition for review in the California Supreme Court. Therein, he asserted four claims for relief: (1) his constitutional rights to due process and a fair trial were violated by the overwhelming presence at trial of uniformed police officers; (2) the prosecutor committed various acts of misconduct during closing arguments; (3) the prosecutor introduced insufficient evidence to support the jury's finding that Petitioner was sane when he committed his crimes; and (4) Petitioner's sentence of life without parole constituted cruel and unusual punishment under the California Constitution. The California Supreme Court denied the petition on September 14, 2011.
Subsequently, on December 7, 2012, Petitioner, who was represented by counsel, filed a petition for writ of habeas corpus in the Los Angles Superior Court. Therein, he asserted seven claims for relief:
While that petition was pending, Petitioner, still represented by counsel, filed a federal petition for writ of habeas corpus in this Court on March 27, 2013. Therein, he raised the same seven claims that he previously had asserted in his superior court habeas petition. Claims One, Five, and Six of the federal petition roughly corresponded to three of the claims that Petitioner had previously asserted in the petition for review that he filed in the California Supreme Court. Additionally, portions of Claim Three corresponded to the prosecutorial misconduct claim that he asserted in his petition for review.
Respondent moved to dismiss the federal petition as mixed, that is, containing both exhausted and unexhausted claims. In response, Petitioner acknowledged that Claims Two, Four, and Seven, as well as portions of Claims Three were unexhausted. Consequently, rather than oppose Respondent's motion to dismiss, Petitioner requested that the undersigned stay his petition, either pursuant to the procedure outlined in Rhines v. Weber, 544 U.S. 269, 275-76, 125 S.Ct. 1528, 161 L. Ed. 2d 440 (2005) or pursuant to the procedure outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). As explained more fully below, in a Rhines stay, the Court stays the action, both exhausted and unexhausted claims. To do so, however, the Court must find good cause for the failure to exhaust. Rhines, 544 U.S. at 275. In a Kelly stay, the Court dismisses the unexhausted claims and stays the exhausted claims. A Kelly stay does not require a showing of good cause. However, since the unexhausted claims have been dismissed, a petitioner seeking to add them back in after exhausting them must show either that they relate back to the original unexhausted claims, or that they otherwise are not barred by the statute of limitations. See King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009).
Respondent opposed the request for a Rhines stay, but did not oppose the request for a Kelly stay. On September 17, 2013, the undersigned issued a minute order granting Petitioner's unopposed request to stay the action pursuant to Kelly. (Minute Order, dated Sept. 17, 2013 (Docket No. 16).) Accordingly, on October 16, 2013, Petitioner filed a first amended petition, in which he deleted Claims, Two, Four, and Seven, as well as the portions of Claims Three.
Meanwhile, on August 20, 2013, in the Los Angeles Superior Court habeas action, Petitioner filed a reply to the respondent's opposition to his state habeas petition. No further briefing occurred in that case. On August 30, 2013 — before Petitioner's federal petition was stayed — the Los Angeles Superior Court denied Petitioner's state habeas petition. In a declaration that she submitted in this Court, Petitioner's counsel declares that she did not receive notice of the Los Angeles Superior Court's August 30, 2013 decision, even though she was counsel of record in that matter and, as such, entitled to notification of any developments in that case.
On November 18, 2013, nearly three months after the Los Angeles Court denied Petitioner's state habeas petition, Petitioner's counsel, in accordance with the undersigned's order, filed a status report of Petitioner's efforts to exhaust his unexhausted claims in state court. In connection with the November 18th status report, Petitioner's counsel submitted a declaration in which she stated, "[a]s of November 18, 2013, the matter is still pending in the Los Angeles Superior Court and no decision has been rendered." Petitioner's counsel's declaration makes no mention of any steps that she took to ascertain the status of the Los Angeles Superior Court action.
Over two months after filing the status report, on January 29, 2014, Petitioner's counsel, still having not received notice of the superior court's August 30, 2013 decision, called the Superior Court clerk to find out the status of the case. The clerk advised Petitioner's counsel that the Superior Court had denied the state habeas petition on August 30, 2013. Five days later, on February 3, 2014, Petitioner's counsel filed a petition for writ of habeas corpus on Petitioner's behalf in the California Court of Appeal, which denied the petition on March 13, 2014. Six days later, Petitioner's counsel filed a petition for writ of habeas corpus on Petitioner's behalf in the California Supreme Court, which denied the petition on May 14, 2014.
Having exhausted his unexhausted claims, Petitioner, on May 22, 2014, filed in this Court a motion for leave to file a Second Amended Petition. On June 19, 2014, the undersigned granted Petitioner's motion.
Thereafter, on August 15, 2014, Respondent filed the instant motion to dismiss. On December 18, 2014, Petitioner filed an opposition to Respondent's motion.
As noted, there are two types of stays potentially available to a federal habeas petitioner who files a petition containing both exhausted and unexhausted claims. First, the petitioner may seek a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005). In Rhines, the Supreme Court held that courts have the discretion to stay a "mixed petition" containing both exhausted and unexhausted claims and to hold it in abeyance while the petitioner exhausts the unexhausted claims in state court. A Rhines stay, however, is appropriate only in limited circumstances — namely, where the petitioner can show three things: (1) there was good cause for the petitioner's failure to exhaust his claims first in state court; (2) the unexhausted claims are potentially meritorious; and (3) the petitioner has not engaged in intentionally dilatory litigation tactics. 544 U.S. at 275. Under the Rhines procedure, there is, subject to reasonable limits, no risk that, once exhausted, the formerly unexhausted claims will be barred by the statute of limitations, as long as the original petition was timely filed. This is so because, under Rhines, the initially unexhausted claims are never dismissed.
Second, in the Ninth Circuit, the petitioner can seek a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). The unexhausted claims are no part of the federal petition during the stay, and the federal limitations period concerning them runs while the stay is in place. A Kelly stay involves the following three-step procedure: (1) the petitioner amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches the newly exhausted claims to the original petition. King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). Significant differences exist between a Kelly stay and a Rhines stay. Unlike a petitioner seeking a Rhines stay, a petitioner seeking a Kelly stay need not show good cause for his delay in exhausting his unexhausted claims. More importantly for purposes of Petitioner's case, a Kelly stay does not allow the petitioner to maintain a mixed petition in federal court while he returns to state court to exhaust his unexhausted claims.
After exhausting his previously unexhausted claims, a petitioner who elects to proceed under the Kelly procedure will be able to amend his federal petition and add back in his newly exhausted claims if those claims are timely. If the petitioner's newly exhausted claims otherwise would be untimely, the petitioner will be able to amend his petition to include them only if they share a "common core of operative facts" with the exhausted claims in his original petition under the "relation back" doctrine. See Mayle v. Felix, 545 U.S. 644, 662, 125 S.Ct. 2562, 162 L. Ed. 2d 582 (2005). Consequently, the Kelly procedure is a riskier one for the habeas petitioner than the alternative procedure under Rhines because the Kelly procedure does not protect a petitioner's unexhausted claims from expiring during a stay. See King, 564 F.3d at 1140-41.
Here, although Petitioner requested a stay under both Rhines and Kelly, his request was granted only as to the Kelly option. Accordingly, unless the newly exhausted claims are independently timely, Petitioner can prosecute them only if they share a "common core of operative facts" with the exhausted claims that Petitioner alleged in his first amended petition.
Claims added by amendment do not share a common core of operative facts, and thus do not relate back to the date of the original petition's filing, if the added claims assert new grounds for relief that rely on facts differing in time and type from the facts alleged in the original petition. Mayle v. Felix, 545 U.S. 644, 656-57, 125 S.Ct. 2562, 162 L. Ed. 2d 582 (2005); see Rhoades v. Henry, 598 F.3d 511 (9th Cir. 2010) (prosecutorial misconduct claims did not relate back to petition alleging claims concerning police misconduct, jailhouse informant testimony and alleged judicial bias); Hebner v. McGrath, 543 F.3d 1133 (9th Cir. 2008) (applying Mayle to deny relation back to amended claim challenging jury instruction concerning prior sexual misconduct, where petition challenged only admissibility of evidence of that conduct).
Here, Claims Two and Four, as well as portions of Claim Three, do not relate back to any of the claims that Petitioner asserted in the first amended petition. Although Claim Seven (the cumulative error claim), as it is alleged in the Second Amended Petition, also does not relate back to Petitioner's originally exhausted claims, the Court, as discussed below, shall construe that claim in such a way that allows relation back of that claim.
In his original petition and in his subsequent first amended petition, Petitioner alleged exhausted claims that dealt with the following issues: (1) excessive police presence at trial; (2) sufficiency of the evidence; (3) prosecutorial misconduct; and (4) cruel and unusual punishment. By contrast, Petitioner's newly exhausted Claims Two, Four, and Seven deal with the following issues: (1) trial counsel's failure to call a treating physician and present evidence of Petitioner's disability payments; (2) the trial court's failure to properly instruct the jury on how to assess witness testimony and counsel's failure to challenge the trial court's purported instructional error; and (3) the cumulative impact of all of the purported constitutional errors set forth in the Second Amended Petition. Aside from the cumulative error claim (discussed infra), none of these issues has any facts in common with the exhausted claims asserted in either the original petition or the first amended petition. Accordingly, they do not relate back to the first amended petition.
Similarly, portions of Petitioner's third claim for relief do not relate back to the prosecutorial misconduct claim set forth in the first amended petition. In his petition for review to the California Supreme Court, Petitioner asserted the following instances of prosecutorial misconduct:
In his original federal petition, Petitioner asserted these allegations of prosecutorial misconduct, but added the following unexhausted allegations:
In addition, Petitioner alleged that his trial counsel provided ineffective assistance of counsel in failing to object to "some, but not all of the prosecutor's misconduct" and that appellate counsel provided ineffective assistance of counsel in failing to raise the foregoing two allegations of prosecutorial misconduct.
With the exception of his somewhat undefined ineffective assistance of trial counsel claim, none of Petitioner's newly added allegations of prosecutorial misconduct relates back to any of his originally exhausted allegations of prosecutorial misconduct. Although Petitioner's originally exhausted claim included an allegation that the prosecutor made improper appeals to sympathy, the facts underlying that allegation differ from his current claim that the prosecutor violated the "Golden Rule" by asking the jury to consider the victim's feelings and arguing that the jury members themselves or their loved ones could have been victims. In his original claim, Petitioner faulted the prosecutor for "ask[ing] the jurors for sympathy for [the victim's] family and . . . turn[ing] to the [victim's] family which was surrounded by numerous LAX police officers." (Petition for Review at 34.) To the extent that the prosecutor also asked the jury to consider the victim's feelings and urged the jury to consider their own loved ones, that act is separate from urging the jury to sympathize with the victim's family. Likewise, Petitioner's newly added vouching allegation is factually distinct from his original vouching claim. In his original claim, he criticized the prosecutor for vouching for Petitioner's sanity during the sanity phase of the trial: in his newly added claim, he criticizes the prosecutor for vouching for the prosecution's witnesses. Both allegations involve different aspects of the prosecutor's closing argument. As to Petitioner's ineffective assistance of appellate counsel claim, that does not relate back to the originally exhausted allegations of prosecutorial misconduct because it is based only on appellate counsel's failure to assert the newly-added prosecutorial misconduct allegations.
Petitioner's ineffective assistance of trial counsel claim presents a more difficult question. If the claim is limited only to counsel's failure to object to the originally exhausted allegations of prosecutorial misconduct, then it relates back to those allegations. See Ha Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 2013) (claim alleging appellate counsel was ineffective for failing to raise double jeopardy argument on direct appeal related back to petitioner's claim that his rights were violated under the Double Jeopardy Clause). By contrast, to the extent that Petitioner's claim is based on counsel's failure to object to the newly-added allegations of prosecutorial misconduct, it does not relate back and is, therefore, untimely. As explained below, neither statutory tolling nor equitable tolling render this newly-added claim timely. Accordingly, the Court shall construe Petitioner's ineffective assistance of trial counsel claim in Claim Three as relating only to counsel's failure to object to the originally exhausted allegations of prosecutorial misconduct.
Petitioner's seventh claim for relief stands on the same footing as the ineffective assistance of trial counsel component of Claim Three. In his seventh claim for relief, Petitioner contends that the cumulative impact of the alleged constitutional trial errors requires reversal. To the extent that the claim involves only those errors identified in the originally exhausted claims, the cumulative error claim relates back to the original petition. Otherwise, it does not relate back and is untimely. For the same reasons stated above, the Court construes Petitioner's seventh claim for relief to involve only those errors identified in the originally exhausted claims.
Although Respondent also maintains that Petitioner's sixth claim for relief does not relate back to any exhausted claim in the first amended petition, the Court disagrees. In Claim Six, Petitioner contends that his sentence of life without the possibility of parole constitutes cruel and unusual punishment under both the Federal Constitution and California's Constitution. (See Petition, Memo. of Points and Auth. at v.) To be sure, when Petitioner filed his original petition, the federal component of Petitioner's claim was unexhausted because, in his petition for review, he alleged only that his sentence violated California's ban on cruel and unusual punishment. However, Petitioner has now exhausted that component of the claim. Moreover, the state component and the federal component of the claim share the same operative facts. Consequently, the federal component of the claim relates back to the state component. Accordingly, the federal component of the claim is timely.
In sum, Claims Two and Four and the portions of Claim Three discussed above do not relate back to any of the exhausted claims set forth in Petitioner's first amended petition. Consequently, Petitioner cannot prosecute those newly exhausted claims unless they are timely.
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") provides in relevant part:
28 U.S.C. § 2244(d).
Here, the California Supreme Court denied Petitioner's petition for review on September 14, 2011. Accordingly, Petitioner's conviction became final ninety days later, on December 13, 2011, when his time to petition for certiorari in the United States Supreme Court expired. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Therefore, Petitioner had until December 13, 2012 to assert his newly exhausted claims in a timely federal petition. 28 U.S.C. § 2244(d)(1)(A). However, Petitioner did not assert those claims until June 19, 2014. Consequently, those claims are untimely, unless either statutory or equitable tolling renders them timely.
Statutory tolling applies only to properly filed applications for state collateral relief. Gaston v. Palmer, 417 F.3d 1030, 1038 (9th Cir. 2005). When statutory tolling is applicable, it does not extend to the time between the date on which a judgment becomes final and the date on which the petitioner files his first state collateral challenge because, during that time, there is no case "pending." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Once an application for post-conviction review commences, however, it is "pending" until the petitioner "complete[s] a full round of [state] collateral review." Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir. 2003) (citing Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003)). The period tolled includes the time between a lower court decision and the filing of a new petition in a higher court, as long as the intervals between the filing of those petitions are "reasonable." Delhomme, 340 F.3d at 819 (citing Biggs, 339 F.3d at 1048 n.1).
Here, statutory tolling does not render the newly exhausted claims timely. Petitioner first raised his newly exhausted claims in state court in the habeas petition that he filed in the Los Angeles Superior Court on December 7, 2012. By that time, 359 days had elapsed on the limitations period. Although the limitations period was tolled for the 266 days while that petition was pending in the superior court, it was not tolled for 157-day period between the date on which the superior court denied the petition and the date on which Petitioner filed his next state habeas petition in the California Court of Appeal. California has never definitively stated what is "reasonable" in terms of the intervals between the denial of a petition in one court and the filing of a subsequent petition in a higher court. See Velasquez v. Kirkland, 639 F.3d 964, 967 (9th Cir. 2011). The United States Supreme Court, however, has instructed courts to assume that California law does not differ significantly from other states with determinate timeliness rules. Evans v. Chavis, 546 U.S. 189, 198, 126 S.Ct. 846, 163 L. Ed. 2d 684 (2006). Therefore, unjustified filing delays longer than thirty to sixty days are unreasonable. Id. Consequently, statutory tolling is inapplicable to such delays. Id. Here, Petitioner waited 157 days after the denial of his superior court habeas petition to file his next state habeas petition. Consequently, he is not entitled to statutory tolling for that period.
Moreover, Petitioner is not entitled to statutory tolling in connection with either of his subsequent state habeas petitions. By the time he filed those petitions, the statute of limitations had already expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of a limitations period that has ended before the state petition was filed"); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (holding that state habeas petition filed after expiration of AEDPA limitation period could not toll limitation period "because the limitations period had already run").
Finally, the fact that Petitioner had a federal habeas petition pending from December 11, 2012 until now does not alter that result. Statutory tolling is not applicable to habeas petitions pending in federal court. Rhines v. Weber, 544 U.S. 269, 274-75, 125 S.Ct. 1528, 161 L. Ed. 2d 440 (2005) (citing Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 150 L. Ed. 2d 251 (2001)).
Accordingly, Petitioner is not entitled to statutory tolling. Thus, absent equitable tolling, the newly exhausted claims are untimely.
AEDPA's limitations period may be subject to equitable tolling, if the petitioner shows that extraordinary circumstances prevented him from filing a timely federal habeas petition and that he acted diligently in pursuing his rights. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010); Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). The petitioner bears the burden of showing that equitable tolling is appropriate. Miranda, 292 F.3d at 1065.
Here, Petitioner contends that he is entitled to equitable tolling of the statute of limitations from August 30, 2013, the date on which the Los Angeles Superior Court denied his first state habeas petition, until January 29, 2014, the date on which Petitioner's counsel learned that the Superior Court petition had been denied. Equitable tolling, according to Petitioner, is warranted for this more than five month period because the Superior Court neglected its duty to notify Petitioner's counsel that the petition had been denied on August 30, 2013. Petitioner maintains that his counsel had no reason to contact the Superior Court or to check the Superior Court's online docket during this more than five month period because she had every reason to believe that the Superior Court would notify her if it had resolved Petitioner's state habeas petition. For the reasons explained below, Petitioner is entitled to no equitable tolling based on the Superior Court's failure to notify counsel of its August 30, 2013 order denying Petitioner's state court habeas petition.
A "prisoner's lack of knowledge that the state courts have reached a final resolution can provide grounds for equitable tolling if the prisoner has acted diligently in the matter." Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (quoting Woodward v. Williams, 263 F.3d 1135, 1143 (10th Cir. 2001)). In order to determine whether the petitioner acted diligently in pursuing his rights, courts must look at (1) the date on which the petitioner actually received notice of the final decision of the court; (2) whether he acted diligently to obtain notice; and (3) whether the delayed notice, and not his lack of diligence, was the cause of his untimely filing. Ramirez, 571 F.3d at 998.
Applying this test, district courts in the Ninth Circuit routinely have held that pro se petitioners who are in no way responsible for the lack of notice and who act diligently in the interim are entitled to equitable tolling. See, e.g., Evans v. Soto, 2013 WL 5179242, *6-7 (E.D. Cal. Sept. 13, 2013) (pro se prisoner's lack of notice that state court had resolved his case warranted equitable tolling where delayed notification was due, in part, to prison transfer and where prisoner diligently inquired regarding state case's status); Lewis v. Mitchell, 173 F.Supp.2d 1057, 1061-62 (C.D. Cal. 2001) (equitable tolling warranted for five month period following state court's ruling and petitioner's notice of ruling where prison erroneously returned mailed notification of state court's denial to sender and petitioner made inquires regarding case status).
By contrast, courts within and outside the Ninth Circuit generally hold that no equitable tolling is warranted based on a petitioner's lack of notice of a state court decision where the petitioner is represented by counsel. See, e.g., Alderete v. McEwen, 2014 WL 721952 (C.D. Cal. Feb. 20, 2014) (no equitable tolling for twelve day period from date on which state court denied petition to date on which counsel checked court website to find that petition had been denied because counsel could have checked website earlier); LaCava v. Kyler, 398 F.3d 271, 276 (3d Cir. 2005) (petitioner not entitled to equitable tolling based on failure to receive notice of state court's denial of his petition where petitioner was represented by counsel in state collateral proceedings); Davis v. Lavan, 2004 WL 828367, *4 (E.D. Pa. March 12, 2004) (no equitable tolling where counsel was unaware for two and half months after decision that lower court had denied state habeas petition because "counsel could have learned of the denial at any time"). In denying equitable tolling, those cases have reasoned that, unlike a pro se prisoner, an attorney would have no impediment in determining a case's status.
Although a minority of courts have found equitable tolling appropriate where a counseled petitioner lacks notice of a state court decision, those courts have relied on the fact that the petitioner acted diligently in attempting to determine the status of the state action or that the petitioner was effectively abandoned by counsel. Coffin v. Cate, 2013 WL 164106, *6 (E.D. Cal. Jan. 15, 2013) (equitable tolling warranted where counsel during direct review process failed to inform petitioner of state court denial and where petitioner made numerous, unsuccessful attempts to contact attorney in the interim); Kirk v. Felker, 2010 WL 1949310,*5-6 (E.D. Cal. May 13, 2010) (equitable tolling warranted where counsel, who "essentially . . . abandoned" petitioner, did not inform petitioner of denial of direct appeal and where petitioner diligently sought information on status of appeal).
Indeed, only one district court case in the Ninth Circuit has found that a petitioner who is represented by counsel is entitled to equitable tolling due to a lack of notice without simultaneously finding either that the petitioner was diligent in attempting to obtain notice or that he was abandoned by counsel. See Dorthick v. Hamlet, 2007 WL 1430041, *4 (N.D. Cal. May 14, 2007). In Dorthick, the petitioner, who was represented by counsel, filed a state habeas petition that was denied, but counsel was not notified of the denial even though he was listed as the attorney of record. Id. After over a year and a half had passed, counsel was browsing the state court's website and realized that the petition had been denied. Id. Although the district court noted that counsel could and should have been more diligent in learning of the status of the case, the district court nevertheless found that equitable tolling was warranted because counsel had justifiably relied on the state court to notify him when it rendered its decision. Id.
Dorthick, however, has little persuasive value because it was decided nearly two years before the Ninth Circuit decided Ramirez. There, as set forth above, the Ninth Circuit held that a lack of notice can justify equitable tolling only if, among other things, the petitioner can show that he diligently attempted to find out the status of the case. Ramirez, 571 F.3d at 997-998. In Dorthick, the District Court did not determine that the petitioner or his counsel acted diligently; on the contrary, the District Court effectively found that the lack of notice in that case was attributable to run-of-the-mill attorney neglect. Dorthick, 2007 WL 1430041 at *4 ("It is true that counsel could have checked the status of the petition earlier than he did, and that a more careful lawyer probably would have checked earlier than a year and a half after filing, as counsel here did."). In light of Ramirez, and its requirement to establish diligence on the petitioner's part, the soundness of Dorthick's legal analysis is questionable, as it is clear that neither the petitioner nor his counsel exercised diligence in that case. Not surprisingly, no court has ever cited Dorthick in connection with an argument that a petitioner's lack of notice of a state court's decision warrants equitable tolling.
Here, taking Petitioner's assertion as true that the Superior Court never notified him or his counsel of its August 20, 2013 order denying his state habeas petition, Petitioner has failed to show that he is entitled to equitable tolling of the statute of limitations. Unlike in most cases where a lack of notice has justified equitable tolling, Petitioner has been represented by counsel at all relevant times. Consequently, he cannot show that the Superior Court's failure to notify counsel actually prevented him from filing a timely petition because, unlike a pro se prisoner, counsel had no impediment to ascertaining the status of Petitioner's Superior Court petition. Indeed, as counsel sets forth in her declaration, finding out the status of the Superior Court petition involved nothing more than making a simple phone call to the court — a call that could have been made at any point during the more than five month period after the Superior Court denied the petition. Alternatively, counsel could have found out the status of the case at any time by accessing the Superior Court's online docket.
Furthermore, Petitioner has failed to show that he or his counsel exercised diligence in attempting to determine the status of the Superior Court petition. A petitioner acts diligently in the face of a lack of notice of a state court decision by making inquires, either to counsel or the court or both, in an effort to determine the status of his state case. See Coffin, 2013 WL 164106 at *6 (petitioner made numerous, unsuccessful attempts to contact attorney to determine status of case); compare with Aguilera-Guerra v. Ryan, 2012 WL 6765589, *4 (D. Ariz. Dec. 7, 2012) (petitioner did not act diligently where he made no inquiry regarding status of state court case over fourteen month period).
Here, Petitioner failed to act diligently between the date on which the Superior Court denied the petition and the date over five months later on which counsel finally called the superior court. Unlike the petitioners in Collin and Kirk, Petitioner has submitted no evidence suggesting that he made any inquires of either counsel or the Superior Court regarding the status of his case over the course of the more than five month period after his Superior Court petition was denied.
Counsel, likewise, failed to act diligently during this period. Indeed, counsel directly concedes that she made no effort to determine the status of the case until she finally called the Superior Court clerk on January 29, 2014. Nor can counsel credibly claim that she had no reason to check the status of the Superior Court petition before that date. On the contrary, on November 18, 2013 — that is, approximately three months after filing Petitioner's reply in connection with the Superior Court petition — counsel filed a status report and declaration in this Court in which she stated that the Superior Court action was "still pending" and that "no decision has been rendered." (Status Report, Decl. Fay Arfa ¶ 3 (Docket No. 24).) Neither counsel nor Petitioner provides any explanation why counsel would not either check the Superior Court's website or contact the court by phone before making such a representation to this Court — particularly since, as evidenced by subsequent events, a simple phone call to the Superior Court would have yielded the information needed. Put simply, Petitioner's lack of notice of the Superior Court's decision was attributable more to neglect on counsel's part than it was to any extraordinary circumstance. Counsel's failure to contact the Superior Court for more than five months is all the more perplexing considering that the final brief in that matter (submitted by counsel on Petitioner's behalf) was filed approximately three months before counsel represented to this Court that the matter was still pending. And, Petitioner has not provided a persuasive explanation as to why, after filing the November 18, 2013 status report, counsel waited an additional two months before inquiring about the status of the Superior Court action.
Moreover, Petitioner is not entitled to equitable tolling based on his counsel's lack of diligence, as the failure to adequately monitor Petitioner's case in the Superior Court amounts to no more than mere negligence. "[Routine instances of attorney negligence do not constitute an `extraordinary circumstance' that requires equitable tolling." See Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003); Holland, 130 S. Ct. at 2564 (stating that "garden variety claim of excusable neglect" does not warrant equitable tolling). Although egregious attorney misconduct might justify equitable tolling, such conduct is not at issue here. Compare with Holland, 130 S. Ct. at 2564-65 (observing that failing to timely file federal habeas petition might warrant equitable tolling because attorney failed to research proper filing date, petitioner repeatedly alerted attorney to importance of timely filing petition, and attorney failed to communicate with client for period of years despite petitioner's pleas for information).
Nor is this a case where counsel was aware that the state court had resolved Petitioner's case, but effectively abandoned Petitioner by failing to inform him. See Gibbs v. Legrand, 767 F.3d 879, 887 (9th Cir. 2014) (attorney's failure to inform petitioner of state court denial of habeas petition constituted abandonment and warranted equitable tolling where attorney guaranteed to keep petitioner informed of case status and where petitioner repeatedly inquired about case status); see also Rodriguez v. Arizona Atty. Gen., 2010 WL 582194, *9-10 (D. Ariz. Feb. 11, 2010); Gonzalez v. Gipson, 2014 WL 3734770, *4 (N.D. Cal. July 24, 2014). Here, for more than five months, both counsel and Petitioner appear to simply have done nothing to determine the status of Petitioner's state habeas petition.
Under these circumstances, Petitioner cannot show that either his lack of notice of the state court's decision or his attorney's failure to inquire about the status of the state habeas petition constitutes an extraordinary circumstance warranting equitable tolling of the statute of limitations. Accordingly, Claims Two and Four and the portions of Claim Three discussed herein of the Second Amended Petition are barred by the applicable statute of limitations.
For the foregoing reasons, IT IS RECOMMENDED that the District Court issue an Order: (1) accepting this Report and Recommendation; and (2) granting Respondent's motion to dismiss and dismissing Claims Two, Four, Seven, and the portions of Claim Three discussed herein of the Second Amended Petition with prejudice as untimely.
