YVONNE GONZALEZ ROGERS, District Judge.
Petitioner Rafael Cuevas, a state prisoner, filed the instant pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court is Respondent's renewed motion to dismiss the instant petition as untimely under the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). Dkt. 28. Respondent also moves to dismiss claims 4-10 in the petition on the additional ground that they are procedurally barred from review. Petitioner filed an opposition to the renewed motion. Dkt. 29. Respondent filed a reply. Dkt. 30.
Having read and considered the papers submitted and being fully informed, the Court GRANTS Respondent's renewed motion and dismisses the petition with prejudice.
As discussed in the Court's March 17, 2015 Order denying Respondent's previously-filed motion to dismiss, the following procedural background is undisputed:
Dkt. 25 at 1-2 (footnote in original).
On June 27, 2014, in lieu of an answer, Respondent moved to dismiss the petition as untimely and procedurally barred. Dkt. 9. After full briefing by the parties, the Court issued an order finding that the petition "is barred as untimely under 28 U.S.C. § 2244(d)(1) unless he can show that he is entitled to equitable tolling." Dkt. 25 at 6. In his opposition to the motion, Petitioner had argued that he is entitled to equitable tolling on the grounds that his limited law library access prevented him from filing a timely federal habeas petition. Dkt. 23 at 2. However, the Court found that Respondent had not adequately addressed that argument. Dkt. 25 at 9. Consequently, the Court denied the motion to dismiss the petition as untimely, without prejudice to Respondent's renewing the motion and addressing equitable tolling. Id. at 9-10. Additionally, the Court declined to address at that time Respondent's alternative argument that claims 4-10 of the petition are procedurally barred. Id. at 10 footnote 4.
In the instant motion to dismiss, Respondent renews the argument that all of the claims in the petition are untimely and addressed the matter of equitable tolling. Dkt. 28 at 3-9. He also renews the argument that claims 4-10 of the petition are procedurally barred. Id. at 9. Petitioner has filed an opposition. Dkt. 29. Respondent has filed a reply. Dkt. 30.
AEDPA, effective April 24, 1996, imposes a limitations period on petitions for a writ of habeas corpus filed by state prisoners. In prisoner actions challenging non-capital state convictions or sentences, a habeas petition must be filed within one year of, inter alia, the date the judgment became final after the conclusion of direct review or the time passed for seeking direct review. 28 U.S.C. § 2244(d)(1). "Direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Accordingly, if a petitioner fails to seek a writ of certiorari from the United States Supreme Court, AEDPA's one-year limitations period begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002); Bowen, 188 F.3d at 1159 (same).
In the present case, the California Supreme Court denied review on December 1, 2010. The judgment became final for purposes of the AEDPA statute of limitations ninety days later, on March 1, 2011. See id. The one-year limitations period, therefore, began to run on that date. As such, Petitioner had until March 1, 2012 to file the instant petition. See 28 U.S.C. § 2244(d).
Petitioner did not file the present petition until April 25, 2012,
The Supreme Court has determined that AEDPA's statute of limitations is subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). However, equitable tolling is unavailable in most cases because extensions of time should be granted only if "`extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (citation omitted), overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). The party 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," preventing timely filing. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). "[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Id. at 1066 (internal quotations and citation omitted). At the same time, "[r]ather than let procedural uncertainties unreasonably snuff out a constitutional claim, the issue of when grave difficulty merges literally into `impossibility' should be resolved in [a petitioner's] favor." Lott v. Mueller, 304 F.3d 918, 920 (9th Cir. 2002). When a prisoner is proceeding pro se, his allegations regarding diligence in filing a federal petition on time must be construed liberally. Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006).
As mentioned above, the Court has found that the instant federal petition filed on April 25, 2012 is untimely by two months. Petitioner has previously sought equitable tolling based on his limited law library access of only three hours a week during the "relevant time frame," which is construed to be from the date the limitations period began running on March 1, 2011 to the end of the one-year limitations period on March 1, 2012. Dkt. 23 at 2. "[O]rdinary prison limitations on . . . access to the law library and copier" do not constitute extraordinary circumstances or make it impossible to file on time. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal quotation marks and citations omitted); see, e.g., Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (per curiam) (prisoner's pro se status, law library missing a "handful" of reporter volumes, and reliance on inmate helpers who were transferred or too busy to attend to his petitions are not extraordinary circumstances "given the vicissitudes of prison life"). However, the Court still found it "conceivable that equitable tolling might be warranted because Petitioner claims he was prevented from preparing a timely petition due to his limited access to the law library." Dkt. 25 at 8-9.
In the present renewed motion to dismiss, Respondent again argues that Petitioner's entire allegation of limited access to the library in his opposition was that he was "afforded an average of less than 3 hours per week of access [to] a law library." Dkt. 28 at 7 (citing to Dkt. 23 at 2). As Respondent has argued in its original motion to dismiss, he again argues in his renewed motion that a limitation of "three hours per week of law library time" is not extraordinary, and that Petitioner was not hindered from working on his petition in his cell. Id. However, in response to the Court's request to address Petitioner's claim that his limited access to the law library prevented him from filing a timely petition, counsel for Respondent has
Id., Ex. 6 ("Ott Decl.") ¶¶ 2-3 (footnote in original). Counsel claims that he received from CCC the documents attached as Exhibit 1 to the renewed motion, which consist chiefly of copies of pages of a law library visitation log during the relevant time frame.
After submitting the aforementioned information relating to Petitioner's law library access, Respondent also presents the Court with the established rules concerning permissible law library access, and he argues that Petitioner "has offered nothing indicating he availed himself of such access." Dkt. 28 at 7. Respondent explains the law library access rules and argues Petitioner's limited efforts to avail of such access, as follows:
Id. at 8 (footnote omitted). Upon reviewing the record, this Court agrees with Respondent that the record shows that Petitioner did not avail of the CDCR's permissible law library access. Thus, it seems that even though Petitioner has argued that he was limited to "less than 3 hours per week" of law library access and such a limitation prevented him from filing a timely federal petition, Respondent rebuts such an allegation by showing that Petitioner's limited efforts to avail of law library access indicates that it was his lack of diligence as opposed to his limited access to the law library that was the cause of his untimeliness.
Moreover, even if Petitioner's allegation were true—that he was limited to "less than 3 hours per week" of law library access—such limitations are not extraordinary on their face, and should have provided more than enough time for Petitioner to have prepared the original petition he filed on April 25, 2012. See Dkt. 4. Examining the instant federal petition that was filed, his claims are simply skeletal, containing very little analysis. Id. at 10-22. The need for substantial law library access is not suggested by the instant petition or this record.
In addition, Petitioner has never explained why access to the law library was necessary at all. The record shows that on December 3, 2010, before the limitations period commenced, Petitioner's appellate counsel, John Ward, Esq., explained that he recommended that Petitioner file "a petition for habeas corpus in the U.S. District Court, Northern District of California" and Attorney Ward included the correct federal court address: "450 Golden Gate Avenue, San Francisco, California 94102." Dkt. 28, Ex. 1; Dkt. 28-1 at 8. Attorney Ward provided Petitioner with a blank habeas petition form and a blank application to proceed in forma pauperis. Id. Attorney Ward also explained that the "deadline for that [federal] petition is February 29, 2012." Id. Furthermore, Petitioner does not deny he was in possession of his state court record, and thus presumably he could have prepared the bulk of the petition he filed within his cell.
In sum, Petitioner fails to show either that he has been diligent or that "extraordinary circumstances" stood in his way and prevented a timely filing. Petitioner fails to explain why the alleged three-hour-a-week law library access was insufficient, or why he did not consistently avail of such weekly access to the law library during the relevant period.
In his opposition to the renewed motion, Petitioner concedes that he has made "critical mistakes . . . in [his] good faith attempt to present his petition and pursue[] justice." Dkt. 29 at 2. He does not dispute that his petition is untimely, instead he stresses that aside from his limited access to the law library, he is "highly unqualified" to "litigate as a profession" and that "the breadth and the scope of the material were of great significance to the timely filing of the petition." Id. The Court construes the aforementioned as Petitioner's renewed argument that he is entitled to equitable tolling based on his pro se status and voluminous case file in addition to his limited access to the prison law library. As mentioned in the Court's Order denying the previously-filed motion to dismiss, a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling. Dkt. 25 at 8 footnote 3, 9 (citing Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)). The Court noted that "when accompanied with the fact that Petitioner's law library access was limited and his case file was voluminous, such circumstances could arguably be considered `extraordinary.'" Id. at 9. However, the Court stressed that "it is important to note that the standard for equitable tolling requires both the presence of an extraordinary circumstance and the inmate's exercise of diligence." Id. (citing Holland, 560 U.S. at 649; Pace, 544 U.S. at 418). At the time the Court denied Respondent's previously-filed motion to dismiss, the question of Petitioner's diligence was unclear. Id. However, after further factual development of the record, the Court has found above that Petitioner has failed to show that he exercised the requisite diligence in attempting to gain access to the law library in order to file a timely petition. Thus, without the requisite presence of an extraordinary circumstance and Petitioner's exercise of diligence, Petitioner's allegation of his pro se status alone does not entitle him to equitable tolling. Rasberry, 448 F.3d at 1154; cf. Cantu-Tzin v. Johnson, 162 F.3d 295, 299-300 (5th Cir. 1998) (pro se status during state habeas proceedings did not justify equitable tolling); United States v. Flores, 981 F.2d 231, 236 (5th Cir. 1993) (pro se status, illiteracy, deafness and lack of legal training not external factors excusing abuse of the writ). Moreover, Petitioner reasserts that the record in his case file is "voluminous," but he makes no attempt to describe the record in order to justify equitable tolling, despite his burden to do so. Respondent argues that their copy fits easily into "three banker's boxes" and adds that "[s]uch size is not unusual, however, particularly for a murder case." Dkt. 30 at 2. Respondent additionally argues that "[i]n any event, the Legislature presumably contemplated that 28 U.S.C. § 2244(d) would apply to state judgments regardless of the size of their records." Id. (citing Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) (dismissing federal habeas petition challenging capital judgment as untimely because it was filed one day late)). This Court agrees, and finds that Petitioner is not entitled to equitable tolling based on his "voluminous" case file.
Petitioner next asserts that as a consequence of "day to day operations" at the prison, there are "difficulties faced in attempting to access the Facility C Law Library on the Lassen Yard at California Correctional Center." Dkt. 29 at 2. Petitioner's argument is unavailing because he does not assert he was housed in the "Lassen Yard" during any or all of the relevant time frame of March 1, 2011 through March 1, 2012. However, even if he were housed there during the relevant time frame, the circumstances he describes are not unusual. See Dkt. 29 at 2-3. Restricted movement, even a lockdown preventing an inmate from visiting a law library altogether, is not an "extraordinary circumstance," but rather a fact of life for an incarcerated inmate. See Ramirez, 571 F.3d at 998. Petitioner's conclusory statement that he was unable to go to the law library while housed in the "Lassen Yard" does not specifically detail the efforts he made to access the law library, when he made them and how they were or were not successful. See Dkt. 29 at 2-3. Petitioner merely describes alleged difficulties in visiting the prison law library, but the Court has already analyzed Petitioner's argument above that his access to the law library was limited. And the Court has determined that the three-hour-once-a-week law library access that Petitioner alleges simply is not, on its face, an extraordinary circumstance alone or when coupled with Petitioner's lay-man status. See Ramirez, 571 F.3d at 998. Indeed, "the Constitution does not require that prisoners (literate or illiterate) be able to conduct generalized research, but only that they be able to present their grievances to the courts—a more limited capability that can be produced by a much more limited degree of legal assistance." Lewis v. Casey, 518 U.S. 343, 360 (1996). "[T]he ability to prepare and file a habeas petition on time is not dependent on unlimited access to the law library. It generally suffices to have access to one's legal materials (which most prisoners keep in their cells) and some degree of access to a law library or `paging system.'" Hebner v. McGrath, 2001 U.S. Dist. LEXIS 9477, *10 (N.D. Cal. 2001), rev'd on other grounds, 60 F. App'x 691 (9th Cir. 2003). Here, Petitioner was always in possession of his trial record, and was aware of its contents, having sat through the trial it documented. Petitioner presumably could have prepared the bulk if not all of his petition within his cell, as the Court has indicated above.
In conclusion, the Court finds that Petitioner's pro se status, his voluminous case file, and his limited access to the prison law library did not make it impossible for him to file a federal petition on time, Beeler, 128 F.3d 1288; nor were they the cause of his untimeliness, Pace, 544 U.S. at 418. Accordingly, Respondent's renewed motion to dismiss is GRANTED.
The federal rules governing habeas cases brought by state prisoners have been amended to require a district court that dismisses or denies a habeas petition to grant or deny a certificate of appealability ("COA") in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (effective December 1, 2009).
For the reasons stated above, Petitioner has not shown "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA is DENIED.
For the reasons stated above,
IT IS HEREBY ORDERED THAT:
1. Respondent's renewed motion to dismiss petition (dkt. 28) is GRANTED, and the petition is DISMISSED with prejudice.
2. A certificate of appealability is DENIED. Petitioner may seek a certificate of appealability from the Ninth Circuit Court of Appeals.
3. The Clerk of the Court shall enter judgment, terminate all pending motions, and close the file.
4. This Order terminates Docket No. 28.
