REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Michael W. Fitzgerald, 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

On April 1, 2016, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody," bearing a March 27, 2016 signature and service date. On May 25, 2016, Respondent filed an Answer asserting that the Petition is untimely. On June 17, 2016, Petitioner filed a Reply.

BACKGROUND

In 2010, a Ventura County Superior Court jury found Petitioner guilty of several crimes, including assault with intent to commit rape during a burglary and attempted kidnapping (Petition at 2). Petitioner received a prison sentence of 13 years to life (Lodgment 1 at 162-65).

On April 9, 2012, the California Court of Appeal affirmed the Superior Court's judgment (Petition at 3). On June 27, 2012, the California Supreme Court denied Petitioner's petition for review (id.). Petitioner did not file a petition for certiorari in the United States Supreme Court (Petition at 5). Petitioner did not file any habeas corpus petition in state court until 2015 (Petition at 3-5). In that year, Petitioner filed three such petitions (id.; Lodgments 9, 11 and 13).

SUMMARY OF PETITIONER'S CLAIMS

Petitioner claims that the trial court erred by allegedly: restricting Petitioner's cross-examination of the investigating officer; concealing the investigating officer's asserted sexual harassment of Petitioner; and sentencing Petitioner to a concurrent term on one of the counts instead of staying sentence on that count (Petition at 5-6).

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 September 25, 2012, upon the expiration of ninety days from the California Supreme Court's June 27, 2012 denial of Petitioner's petition for review. See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) ("direct review cannot conclude for purposes of § 2244(d)(1)(A) until the availability of direct appeal to the state courts, [citation], and to this Court, [citation] has been exhausted"); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (period of "direct review" after which state conviction becomes final for purposes of section 2244(d)(1) includes the 90-day period for filing a petition for certiorari in the United States Supreme Court). Therefore, the statute of limitations commenced running on September 26, 2012, unless subsections B, C or D of 28 U.S.C. section 2244(d)(1) apply in the present case. See 28 U.S.C. § 2244(d)(1)(A); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (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

1. Subsection 2244(d)(1)(B)

To warrant delayed accrual because of an "impediment . . . created by State action" within the meaning of subsection (d)(1)(B), a petitioner must show a causal connection between the impediment and his or her failure to file a timely petition. Bryant v. Arizona Atty. General, 499 F.3d 1056, 1059-60 (9th Cir. 2007) (citations omitted). A petitioner "must satisfy a far higher bar than that for equitable tolling." Ramirez v. Yates, 571 F.3d 993, 1000 (9th Cir. 2009). A petitioner is entitled to delayed accrual under subsection (d)(1)(B) only if the impediment "altogether prevented him from presenting his claims in any form, to any court." Id. at 1001 (emphasis original; citation omitted).

Petitioner does not allege, and the record does not show, that any illegal conduct by the State or those acting for the State "made it impossible for [Petitioner] to file a timely § 2254 petition in federal court." See id. at 1000-01. Subsection B does not delay accrual in Petitioner's case.

2. Subsection 2244(d)(1)(C)

Subsection C of section 2244(d)(1) is also inapplicable. 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 Teague v. Lane, 489 U.S. 288 (1989), to analysis of delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)).

3. Subsection 2244(d)(1)(D)

Subsection D of section 2244(d)(1) is also inapplicable. 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.C. Cir. 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 before the end of his direct appeal all of the "vital facts" concerning his claims. Indeed, all of his claims arose from events Petitioner personally witnessed during his trial or sentencing. Even if Petitioner did not realize the legal significance of these events until 2015, subsection D is inapplicable. See id.

Thus, Petitioner is not entitled to delayed accrual. Accordingly, the statute of limitations began running on September 26, 2012. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner filed the present Petition in 2016. Absent sufficient tolling or an equitable exception, the Petition is untimely.

B. No 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).

In the present case, although the one year statute of limitations began running in 2012, Petitioner did not file his first state court habeas petition until 2015, long after the statute would have expired. Petitioner's belatedly filed state court habeas petitions could not revive or otherwise toll the statute. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas petition "well after the AEDPA statute of limitations ended" does not affect the limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) ("[a] state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled").

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)).

Petitioner appears to seek equitable tolling based on his alleged indigency, his reported inability to retain counsel to represent him, and his claimed ignorance of the law. Such circumstances do not warrant equitable tolling. 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); Roy v. Lampert, 465 F.3d at 970 ("pro se status, on its own, is not enough to warrant equitable tolling"); 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"); Griffin v. Grounds, 2010 WL 5287524, at *3 (E.D. Cal. Dec. 17, 2010), aff'd, 472 Fed. App'x 527 (9th Cir. 2012) ("Petitioner's inability to afford a lawyer does not justify equitable tolling."); Jimenez v. Hartley, 2010 WL 5598521, at *5 (C.D. Cal. Dec. 6, 2010), adopted, 2011 WL 164536 (C.D. Cal. Jan. 13, 2011) (allegations that petitioner was uneducated, illiterate and indigent insufficient); Oetting v. Henry, 2005 WL 1555941 at *3 (E.D. Cal. June 24, 2005), adopted, 2005 WL 2000977 (E.D. Cal. Aug. 18, 2005) ("Neither an inmate's ignorance of the law nor pro se status are the sort of extraordinary events upon which a finding of equitable tolling may be based"); see also Bermudez v. Lewis, 58 Fed. App'x 268, 269 (9th Cir. 2003) (even if the petitioner were "illiterate, indigent [and] ignorant of the law," these problems "would not constitute extraordinary circumstances preventing timely filing"); 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.").

Petitioner also asserts that he cannot read or understand English and that "some of these [prison] law librarys [sic] don't have Spanish speak[ing] clerks" and have "limited" or no "Spanish books" ("Memorandum of Points and Authorities, etc." attached to Petition at 3). As discussed below, such assertions fail to demonstrate entitlement to equitable tolling.

"[A] non-English-speaking petitioner seeking equitable tolling must, at a minimum, demonstrate that during the running of the AEDPA time limitation, he was unable, despite diligent efforts, to procure either legal materials in his own language or translation assistance from an inmate, library personnel, or other source." Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006) (remanding for consideration of the issue of equitable tolling where the Spanish speaking petitioner asserted that none of the prison librarians or clerks spoke Spanish, there were no Spanish language books in the library and, despite returning to the library several times during the one year limitations period, the petitioner had been unable to obtain any translation assistance). As evidenced by Petitioner's state court habeas petitions, Petitioner had translation assistance in 2015. Petitioner has failed to demonstrate why he could not have obtained translation assistance in earlier years. Indeed, Petitioner has failed to allege any facts showing that, during the period of limitations, he exercised "diligent efforts" to obtain legal materials in Spanish and to obtain "translation assistance from an inmate, library personnel, or other source." Equitable toling is unavailable. See United States v. Aguirre-Ganceda, 592 F.3d 1043, (9th Cir.), cert. denied, 560 U.S. 978 (2010) (rejecting equitable tolling where a petitioner with allegedly limited English proficiency failed to show diligence in obtaining legal materials in his own language or translation assistance); see also Phan v. Beard, 584 Fed. App'x 841 (9th Cir. 2014), cert. denied, 136 S.Ct. 154 (2015) (no equitable tolling where the petitioner failed to show he "diligently attempted to procure legal materials in [his native language] or assistance in filing his federal habeas petition"); Garcia v. Yates, 422 Fed. App'x 584 (9th Cir. 2011) (no equitable tolling where, although the petitioner "submitted some evidence that he attempted to procure both legal assistance and legal materials in Spanish, he has not shown that, throughout the period for which tolling is sought, he was diligently pursuing either legal materials in his own language or translation assistance from an inmate, library personnel, or other source") (citations and quotations omitted); Perez v. Marshall, 2009 WL 4507729, at *6 (S.D. Cal. Oct. 16, 2009) (no equitable tolling where the record demonstrated that the petitioner had obtained an interpreter after the running of the statute of limitations but failed to demonstrate that the petitioner had exercised diligence in seeking an interpreter during the limitations period).

D. No Equitable Exception

There exists an equitable exception to the AEDPA statute of limitations for "actual innocence." "[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] expiration of the statute of limitations." McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (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).

"`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998); Calderon v. Thompson, 523 U.S. 538, 559 (1998); Muth v. Fondren, 676 F.3d 815, 819, 822 (9th Cir.), cert. denied, 133 S.Ct. 292 (2012). 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.

In the present case, Petitioner has presented no new reliable evidence of "actual innocence." The equitable exception to the statute of limitations is inapplicable. The Petition is 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.