ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

MANUEL L. REAL, District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition without prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Manuel L. Real, 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 September 7, 2018, Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody," bearing an August 28, 2018 signature date. On October 3, 2018, Respondent filed a "Motion to Dismiss, etc.," asserting, inter alia, that the Petition is untimely. On December 4, 2018, Petitioner belatedly filed opposition.

BACKGROUND

On December 19, 2000, a Superior Court jury found Petitioner guilty of lewd acts on children (Lodgment 1 at 193-95). On February 9, 2001, Petitioner received two concurrent life terms with the possibility of parole after a minimum of 15 years (Lodgment 1 at 231-32, 238). On February 27, 2003, the California Court of Appeal affirmed (Lodgment 10). On May 14, 2003, the California Supreme Court denied Petitioner's petition for review (Lodgment 12). Petitioner did not file a petition for certiorari in the United States Supreme Court (Petition at 5). Between the California Supreme Court's May 14, 2003 denial of review and Petitioner's filing of the present Petition, Petitioner did not file any state court habeas corpus petition or any other application for state collateral review (Petition at 3-5).

SUMMARY OF PETITIONER'S CLAIMS

Petitioner's claims allege: (1) a Miranda violation occurring during arrest and interrogation; (2) ineffective assistance of counsel for failure to object to certain trial evidence; (3) errors occurring during jury selection; (4) "prosecutorial misconduct"; and (5) a procedural error occurring during sentencing.

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 August 12, 2003, upon the expiration of ninety days from the California Supreme Court's May 14, 2003 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 August 13, 2003, 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).

The record does not reflect 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, 568 U.S. 1053 (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)). No later than the conclusion of Petitioner's direct appeal, Petitioner plainly knew, or should have known, the "vital facts" concerning all of his claims.

The running of the statute of limitations does not await a petitioner's gathering of "every possible scrap of evidence that might support his claim." Jurado v. Burt, 337 F.3d 638, 644 (6th Cir. 2003); see also Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998); Powelson v. Sullivan, 2006 WL 2263908, at *3 (N.D. Cal. Aug. 8, 2006) (petitioner not entitled to delayed accrual of claim challenging sentence, where petitioner was present at 1988 sentencing hearing, although petitioner allegedly did not obtain physical evidence supporting claim until 2005 when he looked in his prison file); Tate v. Pierson, 177 F.Supp.2d 792, 800 (N.D. Ill. 2001), aff'd, 52 Fed. App'x. 302 (7th Cir. 2002), cert. denied, 538 U.S. 965 (2003) ("[a]ccrual does not await the collection of evidence supporting the facts"). Petitioner is not entitled to a delay of accrual because of any alleged lack of access to documents concerning his case because, no later than the conclusion of his direct appeal, Petitioner was or should have been aware of the factual predicates for his claims. See Tolbert v. Cockrell, 2001 WL 1516744, at *4 (N.D. Tex. Nov. 7, 2001) ("Tolbert is confusing his knowledge of the factual predicates of his claims with the time permitted for gathering evidence in support of his claims"); see also Lloyd v. Vannatta, 296 F.3d 630, 633 (7th Cir. 2002), cert. denied, 537 U.S. 1121 (2003) (absence of transcripts, including transcripts of prosecutor's closing argument, did not entitle petitioner to equitable tolling on claim of prosecutorial misconduct, where petitioner "was present at trial and knew the basis on which he could have asserted prosecutorial misconduct"); Smith v. Carroll, 2004 WL 1588293, at *4 (D. Del. July 12, 2004) (petitioner not entitled to equitable tolling on account of allegedly missing transcripts, where factual predicates for petitioner's claims were raised in earlier state court appeal; "Smith has not demonstrated how a complete trial transcript was necessary for him to file a habeas petition based on facts he already knew").

Thus, Petitioner is not entitled to delayed accrual. Accordingly, the statute of limitations began running on August 13, 2003. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner constructively filed the present Petition over fifteen years later. 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." Tolling under section 2244(d)(2) is unavailable to Petitioner because Petitioner did not file any "application for State post-conviction or other collateral review" following the conclusion of direct review.

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's assertion that he has never possessed "all portion[s] of [his] legal documents" does not justify equitable tolling. As a result of Petitioner's presence at trial and sentencing, Petitioner had personal knowledge of the factual bases for his present claims without a need to review any "legal documents." See Ford v. Pliler, 590 F.3d 782, 790 (9th Cir. 2009), cert. denied, 562 U.S. 843 (2010) ("Ford is not entitled to equitable tolling on the ground that he did not have his legal files because the record shows he was aware of the factual basis of his claims without them"); see also Tibbs v. Adams, 441 Fed. App'x 443, 444 (9th Cir. 2011), cert. denied, 565 U.S. 1135 (2012) (although petitioner's counsel may have kept petitioner's legal file from petitioner throughout the limitations period, equitable tolling unavailable because there was no indication that, had petitioner received his file sooner, he would have filed a timely federal petition).

Petitioner's alleged lack of legal assistance, alleged poverty and alleged ignorance of the law cannot 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); 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."); 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 deemed insufficient); 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").

D. 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 submitted no new, reliable evidence tending to show that he is actually innocent of any of the charges of which he stands convicted. In his opposition, filed December 4, 2018, Petitioner vaguely references "DNA evidence." Petitioner also attached various documents to this opposition, and to the Petition, including news articles of uncertain relevance to Petitioner's particular case. Petitioner's references and attachments (considered individually or collectively) do not satisfy the Schlup standard. The equitable exception to the statute of limitations has no application in the present case. 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.

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.