REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable S. James Otero, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on August 24, 2016, bearing a signature date of August 20, 2016. Respondent filed an Answer on October 17, 2016, asserting that the Petition is untimely and unexhausted. Respondent also filed Lodged Documents on October 17, 2016. Petitioner failed to file a timely Reply to the Answer, despite Court orders that he do so. See Minute Orders filed November 7, 2016, and December 28, 2016. On February 10, 2017, the Court directed Respondent to file a copy of a habeas corpus petition Petitioner recently filed in the California Supreme Court. On February 14, 2017, Respondent filed a copy of the petition requested.

BACKGROUND

A Superior Court jury found Petitioner guilty of multiple counts of forcible sodomy (Lodged Document 1). Petitioner received a sentence of 42 years in state prison (id.). The California Court of Appeal affirmed (Lodged Document 4). The California Supreme Court denied review (Lodged Document 6). On April 20, 2015, the United States Supreme Court denied certiorari (Lodged Document 8).

On March 26, 2016, Petitioner constructively filed1 habeas corpus petitions in both the California Court of Appeal and the California Supreme Court (Lodged Documents 9, 11). On April 6, 2016, the California Court of Appeal summarily denied the petition (Lodged Document 10). On May 18, 2016, the California Supreme Court denied the petition with a citation (Lodgment Document 12).

On November 30, 2016, Petitioner constructively filed another habeas corpus petition in the California Supreme Court ("Notice of Lodging, etc.," filed February 14, 2017). On January 18, 2017, the California Supreme Court denied the petition with citations.2

SUMMARY OF PETITIONER'S CONTENTIONS

Petitioner contends:

DISCUSSION

I. The Petition Is Untimely.

The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:

"AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis." Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).

Petitioner's conviction became final on April 20, 2015, when the United States Supreme Court denied certiorari. See Rhines v. Weber, 544 U.S. 269, 272 (2005) (conviction becomes final following United States Supreme Court's denial of petition for certiorari). Therefore, the statute of limitations commenced running on April 21, 2015, unless subsections B, C, or D of 28 U.S.C. section 2244 (d) (1) furnish a later accrual date. Porter v. Ollison, 620 F.3d at 958 (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).

A. No Delayed Accrual

Subsection B of 28 U.S.C. section 2244 (d) (1) has no application in the present case. Petitioner does not allege, and this Court finds no indication, that any illegal state action prevented Petitioner from filing the present Petition sooner.

Subsection C of section 2244 (d) (1) also does not furnish a later accrual date. Petitioner does not assert any claim based on a constitutional right "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." See Dodd v. United States, 545 U.S. 353, 360 (2005) (construing identical language in section 2255 as expressing "clear" congressional intent that delayed accrual inapplicable unless the United States Supreme Court itself has made the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) (for purposes of second or successive motions under 28 U.S.C. section 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds the new rule to be retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity principles of Teaque v. Lane, 489 U.S. 288 (1989), to analysis of delayed accrual rule contained in 28 U.S.C. section 2244 (d) (1) (C)).

Subsection D of section 2244 (d) (1) also does not furnish a later accrual date. Under subsection D, the "`due diligence' clock starts ticking when a person knows or through diligence could discover the vital facts, regardless of when their legal significance is actually discovered." Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir.), cert. denied, 133 S.Ct. 769 (2012); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001); see also United States v. Pollard, 416 F.3d 48, 55 (D.D.C. 2005), cert. denied, 547 U.S. 1021 (2006) (habeas petitioner's alleged "ignorance of the law until an illuminating conversation with an attorney or fellow prisoner" does not satisfy the requirements of section 2244 (d) (1) (D)). Petitioner knew or should have known, no later than the time of his sentencing, the "vital facts" underlying all of his claims. Even if Petitioner did not realize the legal significance of these facts until later, subsection D would not delay the accrual of those claims. See Ford v. Gonzalez, 683 F.3d at 1235.

In sum, Petitioner is not entitled to delayed accrual. The one-year statute of limitations began running on April 21, 2015. Absent sufficient tolling or an equitable exception, the Petition is untimely.

B. Insufficient Statutory Tolling

Section 2244 (d) (2) tolls the statute of limitations during the pendency of "a properly filed application for State post-conviction or other collateral review." The statute of limitations is not tolled between the conviction's finality and the filing of Petitioner's first state court habeas petition. See Porter v. Ollison, 620 F.3d at 958; Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000).

Petitioner did not file any state court habeas petition until the statute had run for almost 11 months following the United States Supreme Court's April 20, 2015 denial of certiorari. This Court assumes arguendo the statute then was tolled from the March 26, 2016 constructive filing of Petitioner's first state court habeas petitions through the California Supreme Court's May 18, 2016 denial. Such tolling is insufficient to rescue the present Petition from the bar of limitations because Petitioner did not constructively file the present Petition until the passage of approximately three additional months after May 18, 2016.

Petitioner's subsequent filing of another habeas corpus petition in the California Supreme Court does not affect the limitations analysis. In certain circumstances, a habeas petitioner may be entitled to "gap tolling" between the denial of a state court habeas petition and the filing of a "properly filed" habeas petition in a higher state court. See Carey v. Saffold, 536 U.S. 214, 219-221 (2002). Here, however, Petitioner filed another habeas corpus petition in the same court, the California Supreme Court. "Gap tolling" between petitions filed in the same court is unavailable unless the subsequent petition was:

Stancle v. Clay, 692 F.3d 948, 953 (9th Cir. 2012), cert. denied, 133 S.Ct. 1465 (2013) (quoting King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003), abrogated on other grounds, Evans v. Chavis, 546 U.S. 189 (2006)).

In the present case, Petitioner's most recent California Supreme Court petition was not "limited to an elaboration of the facts relating to the claims in the first petition." Compare "Notice of Lodging, etc.," filed February 14, 2017, with Lodged Document 11. In particular, Petitioner's most recent California Supreme Court petition alleged claims nowhere mentioned in his previous California Supreme Court petition. See id. Accordingly, "gap tolling" is unavailable to Petitioner. See Hernandez v. Spearman, 764 F.3d 1071, 1077 (9th Cir. 2014) (the addition of a new claim in the second state petition filed in the same court prevents the operation of "gap tolling"); accord Crain v. Warden, 2015 WL 4940465, at *3 (June 30, 2015), adopted, 2015 WL 4934176 (C.D. Cal. Aug. 18, 2015).3

Petitioner is also not entitled to statutory tolling in connection with the habeas corpus petition previously filed in this Court.4 The pendency of a federal petition does not toll the statute of limitations under 28 U.S.C. section 2244 (d) (2). Duncan v. Walker, 533 U.S. 167, 172-82 (2001).

C. No Equitable Tolling

AEDPA's statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010) (citations omitted). "[A] `petitioner' is entitled to `equitable tolling' only if he shows `(1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); accord Menominee Indian Tribe v. United States, 136 S.Ct. 750, 755-56 (2016); see also Lawrence v. Florida, 549 U.S. 327, 336 (2007). 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.), cert. denied, 558 U.S. 897 (2009) (citations and internal quotations omitted). Petitioner bears the burden to show equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009). Petitioner must show that the alleged "extraordinary circumstances" were the "cause of his untimeliness." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006), cert. denied, 549 U.S. 1317 (2007) (brackets in original; quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)).

In the present case, Petitioner has failed to allege any grounds for equitable tolling, and no grounds appear from the record. To the extent Petitioner might argue that his alleged lack of legal assistance and/or legal sophistication constitute "extraordinary circumstances" warranting equitable tolling, any such argument would lack merit. See Waldron-Ramsey v. Pacholke, 556 F.3d at 1013 n.4 ("we have held that a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling") (citation omitted); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("we now join our sister circuits and hold that a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling"); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 528 U.S. 1007 (1999) ("[N]either a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling. . . . It is irrelevant whether the unfamiliarity is due to illiteracy or any other reason"); Loza v. Soto, 2014 WL 1271204, at *6 (C.D. Cal. Mar. 26, 2014) ("To allow equitable tolling based on the fact that most prisoners do not have legal knowledge or training would create a loophole that would negate the intent and effect of the AEDPA limitation period.").

D. No "Relation Back"

For purposes of the statute of limitations, the present Petition does not "relate back" to Petitioner's prior federal action, which was dismissed without prejudice. See Rasberry v. Garcia, 448 F.3d at 1155 (habeas petition does not relate back to the date of filing of prior federal habeas petition which was dismissed without prejudice); Dils v. Small, 260 F.3d 984, 985 (9th Cir. 2001) ("Dils argues that his third petition relates back to his first petition. Our decisional law forecloses that contention if the first petition was no longer pending"; citing Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000)); Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir.), cert. denied, 528 U.S. 963 (1999) (present federal habeas proceeding does not relate back to the date of filing prior federal habeas proceeding dismissed without prejudice); accord Neverson v. Bissonnette, 261 F.3d 120, 126 (1st Cir. 2001); Marsh v. Soares, 223 F.3d 1217, 1219-20 (10th Cir. 2000), cert. denied, 531 U.S. 1194 (2001); Warren v. Garvin, 219 F.3d 111, 114 (2d Cir.), cert. denied, 531 U.S. 968 (2000); Fisher v. Ramirez-Palmer, 219 F.Supp.2d 1076, 1078-79 (E.D. Cal. 2002); see also McClendon v. North Am. Rockwell Corp., 1970 WL 106, at *6 (C.D. Cal. April 27, 1970) ("Absent a savings statute which specifically permits a plaintiff to refile an action after a dismissal not on the merits within a limited period of time (there is no federal savings statute), the law is clear that a dismissal without prejudice leaves the situation the same as if the suit had never been brought.").

The Ninth Circuit sometimes has permitted "relation back" in a habeas action where there was something "improper" about the District Court's dismissal of a prior habeas action. See, e.g., Anthony v. Cambra, 236 F.3d 568, 573-74 (9th Cir. 2000), cert. denied, 533 U.S. 941 (2001) ("Anthony"). There was nothing improper about this Court's dismissal of Petitioner's prior habeas action. See "Report and Recommendation of United States Magistrate Judge," filed in the prior action on May 5, 2016; see also Rasberry v. Garcia, 448 F.3d 1150, 1155 ("Anthony" does not stand for the proposition that a second habeas petition can relate back to a previously dismissed first petition, but merely endorsed the district court's exercise of its equitable power to correct a mistake. Anthony does not extend beyond that context."). Notably, Petitioner did not file a notice of appeal from the judgment in the prior action.

E. No Equitable Exception

There exists an equitable exception to the AEDPA statute of limitations for "actual innocence." McQuiggin v. Perkins, 133 S.Ct. 1924 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en banc). "[T]enable actual-innocence gateway pleas are rare." McQuiggin v. Perkins, 133 S. Ct. at 1928. The Court must apply the standards for gateway actual innocence claims set forth in Schlup v. Delo, 513 U.S. 298 (1995) ("Schlup"). See McQuiggin v. Perkins, 133 S. Ct. at 1928. "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror [or other trier of fact], acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. (quoting Schlup, 513 U.S. at 329).

In order to make a credible claim of actual innocence, a petitioner must "support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324; see also Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003), cert. denied, 541 U.S. 998 (2004) (holding that "habeas petitioners may pass Schlup's test by offering `newly presented' evidence of actual innocence"); Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) ("[A] claim of actual innocence must be based on reliable evidence not presented at trial.").

Petitioner has produced no new, reliable evidence tending to show that he is actually innocent of the charges of which he stands convicted. The equitable exception to the statute of limitations has no application in the present case.

II. The Court Need Not Determine the Exhaustion Issues.

Respondent contends that certain of Petitioner's claims are still unexhausted. In light of the Petition's untimeliness, the Court need not and does not determine whether Petitioner's claims are unexhausted. See, e.g., Perez v. Hartley, 2013 WL 4208280, at *3 n.7 (C.D. Cal. Aug. 14, 2013) (court need not determine whether the petitioner's claims are unexhausted when those claims are untimely).

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.