ARTHUR NAKAZATO, Magistrate Judge.
Before the Court is a petition for writ of habeas corpus ("Petition") brought by Joshua Anthony Blount ("Petitioner"), a state prisoner represented by retained counsel. The Petition is brought pursuant to 28 U.S.C. § 2254 and raises three claims directed at Petitioner's June 4, 2008 conviction in the California Superior Court for Orange County (case no. 06HF1927) of one count of first degree murder, four counts of attempted murder, and findings that he committed the murder by drive-by shooting and personally discharged a firearm causing death and great bodily injury. He was sentenced to a term of life in state prison. For the reasons set forth below, Petitioner is ordered to show cause why his Petition should not be dismissed with prejudice because it is time-barred.
Habeas Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("Habeas Rules"), 28 U.S.C. foll. § 2254, requires a judge to "promptly examine" a habeas petition and "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Local Rule 72-3.2 of this Court also provides "[t]he Magistrate Judge promptly shall examine a petition for writ of habeas corpus, and if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief, the Magistrate Judge may prepare a proposed order for summary dismissal and submit it and a proposed judgment to the District Judge." C.D. Cal. R. 72-3.2. Further, an untimely habeas petition may be dismissed sua sponte, however, the district court must give the petitioner adequate notice and an opportunity to respond before doing so. Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675 (2006); Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001); see also Wood v. Milyard, ___ U.S. ___, 132 S.Ct. 1826, ___ (2012) (reaffirming Day's holding that district courts are permitted to consider, sua sponte, the timeliness of a state prisoner's habeas petition, and itself holding that "courts of appeals, like district courts, have the authority — though not the obligation — to raise a forfeited timeliness defense on their own initiative.").
The Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which establishes a one-year statute of limitations for state prisoners to file a habeas petition in federal court. 28 U.S.C. § 2244(d)(1); see Lindh v. Murphy, 521 U.S. 320, 327-37, 117 S.Ct. 2059 (1997). In most cases, the limitations period begins to run from "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 244(d)(1)(A).
The face of the Petition and relevant state court records
Therefore, for purposes of AEDPA's limitations period, Petitioner's judgment became final on February 22, 2011, the day the United States Supreme Court denied his petition for certiorari. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) ("direct review" under § 2244(d)(1)(A) includes a petition for a writ of certiorari in the United States Supreme Court). The statute of limitations then started to run the next day, on February 23, 2011, and ended a year later on February 22, 2012. 28 U.S.C. § 2244(d)(1)(A); see also Patterson v. Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001) (the limitations period begins to run on the day after the triggering event pursuant to Fed. R. Civ. P. 6(a)). Petitioner's retained counsel did not file his pending Petition until June 1, 2012 — 100 days after the expiration of the limitations period. Accordingly, absent some basis for tolling or an alternative start date to the limitations period under 28 U.S.C. § 2244(d)(1), the pending Petition is time-barred.
AEDPA includes a statutory tolling provision that suspends the limitations period for the time during which a "properly-filed" application for post-conviction or other collateral review is "pending" in state court. 28 U.S.C. § 2244(d)(2); Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008); Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005). An application is "pending" until it has achieved final resolution through the state's post-conviction procedures. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134 (2002). The face of the Petition, exhibits, and relevant state court records establish Petitioner's retained counsel filed one state habeas petition, in the California Supreme Court (case no. S200245). His counsel filed that petition on February 21, 2012, just one day before the AEDPA limitations period expired. (Pet. at 3-4, Ex. D; state court records.) That petition was denied on May 23, 2012, with a citation to In re Dixon, 41 Cal.2d 756, 759 (1953).
Petitioner also filed a prior federal habeas action, which has no bearing on the Court's timeliness analysis.
Despite receiving the statutory tolling to which he is entitled, Petitioner's pending Petition is still untimely.
In rare instances, AEDPA's one-year limitations period can run from "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 is removed, if the applicant was prevented from filing by such State action." 28 U.S.C. § 2244(d)(1)(B). Asserting that the statute of limitations was delayed by a state-created impediment requires establishing a due process violation. Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002). Petitioner's filings do not set forth any facts that show he is entitled to relief under this provision.
AEDPA provides that, if a claim is based upon a constitutional right that is newly recognized and applied retroactively to habeas cases by the United States Supreme Court, the one-year limitations period begins to run on the date which the new right was initially recognized by the Supreme Court. 28 U.S.C. § 2244(d)(1)(C). Petitioner's filings do not set forth any facts that show he is entitled to relief under this provision.
AEDPA also provides that, in certain cases, its one-year limitations period shall run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D); Hasan v. Galaza, 254 F.3d 1150, 1155 (9th Cir. 2001). Petitioner's filings do not set forth any facts that show Petitioner is entitled to an alternate start date to the limitations period based upon the late discovery of the factual predicate.
AEDPA's limitations period "is subject to equitable tolling in appropriate cases." Holland v. Florida, ___ U.S. ___, 130 S.Ct. 2549, 2560 (2010). However, "[e]quitable tolling is justified in few cases" and "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)).
"[A] litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807 (2005); Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079 (2007). Pace's diligence prong requires the petitioner to show he engaged in reasonably diligent efforts to file his § 2254 petition throughout the time the limitations period was running. Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006); see also Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (equitable tolling requires a showing that "the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll" and "extraordinary circumstances prevented him from filing his petition on time"). The petitioner must also demonstrate that he exercised reasonable diligence in attempting to file his habeas petition after the extraordinary circumstances began, otherwise the "link of causation between the extraordinary circumstances and the failure to file [is] broken." Spitsyn, 345 F.3d at 802. Pace's "extraordinary circumstances" prong requires the petitioner to "additionally show that the extraordinary circumstances were the cause of his untimeliness, and that the extraordinary circumstances made it impossible to file a petition on time." Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal quotations and citations omitted). Further, equitable tolling determinations are "highly fact-dependent," Mendoza, 449 F.3d at 1068, and the petitioner "bears the burden of showing that equitable tolling is appropriate." Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005).
Additionally, although "we do not require [the petitioner] to carry a burden of persuasion at this stage in order to merit further investigation into the merits of his argument for [equitable] tolling," Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003), "[w]here the record is amply developed, and where it indicates that the [alleged extraordinary circumstance did not] cause the untimely filing of his habeas petition, a district court is not obligated to hold evidentiary hearings to further develop the factual record, notwithstanding a petitioner's allegations...." Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010); see also Elmore v. Brown, 378 Fed. Appx. 664, 666 (9th Cir. 2010) ("[W]here the record is sufficient to permit the district court — and us on appeal — to evaluate the strength of the petitioner's [equitable tolling] claim, the district court does not necessarily abuse its discretion if it denies the petitioner a hearing.") (cited pursuant to Ninth Circuit Rule 36-3).
Apparently anticipating that the pending Petition would be found untimely, Petitioner argues he should be entitled to equitable tolling on the basis that:
(Memorandum of Points and Authorities (attached to the Petition) at 3-4.) Petitioner also attached to the Petition the declaration of his counsel's legal assistant stating that she was assigned to handle office mail pertaining to Petitioner's case, that she was out of the office from May 25 to 29, and that upon her return to work on May 30, she "processed all the mail on my desk," which included the letter from the California Supreme Court notifying Petitioner his habeas petition had been denied. She states she then worked with two attorneys "all day" on May 30 to complete the pending Petition. (Pet., Ex. E.)
Petitioner is not entitled to equitable tolling because he fails to satisfy both of Pace's requirements. Pace, 544 U.S. at 418. First, he has not been pursuing his rights diligently throughout the time the limitations period was running. Mendoza, 449 F.3d at 1070; Smith, 208 F.3d at 17. His entire argument places undue emphasis on actions taken on a single day long after the original limitations period expired, but ignores the fact that he did nothing for approximately the first ten months the limitations period was running. See Mendoza, 449 F.3d at 1070 (a petitioner seeking equitable tolling must demonstrate he made diligent efforts "during the running of the AEDPA time limitation...."). Moreover, all he did at that point was file a mixed federal habeas petition that was subject to dismissal. Notably, Petitioner was then given an opportunity to avoid his current predicament by deleting the unexhausted claim and proceeding with an amended petition on his exhausted claims. (See CV 11-1936 VBF (AN), [4], [8].) Petitioner chose instead to object to the magistrate judge's orders (See id. at [9]) and then, while awaiting this Court's decision,
Second, Petitioner also fails to satisfy Pace's second prong, that some extraordinary circumstance stood in his way. As already alluded to, routine occurrences such as the delivery of mail do not constitute extraordinary circumstances that make timely filing impossible. Ramirez, 571 F.3d at 997; Allen v. Lewis, 255 F.3d 798, 800 (9th Cir. 2001) (to establish that an extraordinary circumstance made it impossible to file a petition on time, "at the very least, the prisoner must show that the `extraordinary circumstances' were the but-for and proximate cause of his untimeliness."). Additionally, while the Court finds minor mail delays caused by holidays are also routine, unextraordinary occurrences that do not warrant equitable tolling, Petitioner has nevertheless failed to establish there was any holiday-related delay in his mail delivery. Specifically, he has not indicated, nor has he attached any exhibits showing by time stamp or otherwise, what date the California Supreme Court's letter notifying him of the May 23 denial was actually mailed and delivered to his counsel's law office by the United States Postal Service. Based on the declaration proffered by his counsel's assistant (Pet., Ex. E) the letter could have arrived as early as Friday, May 25, because no mail relating to Petitioner's case was checked or opened on May 25 or 29.
Petitioner's filings do not establish he is entitled to equitable tolling.
Based on the foregoing, the Court finds this action is untimely. Accordingly, Petitioner shall have until
IT IS SO ORDERED.