EDWARD REED, District Judge.
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner. On October 24, 2011, the court issued an order directing respondents to show cause and file such proof as they may have to demonstrate whether petitioner is entitled to equitable tolling of the one-year limitations period (ECF #4). Before the court is respondents' response to that order (ECF #10), and petitioner's reply (ECF #15).
On April 27, 2006, petitioner was charged via information with count 1: felony murder with the use of a deadly weapon and count II: discharging a firearm in a structure, both felonies (exhibit 3 to respondent's response to order to show cause, ECF #10).
More than three and one-half years later on November 20, 2010, petitioner filed a petition for postconviction writ of habeas corpus in state court (ex. 33). On March 2, 2011, the state district dismissed the petition as untimely (ex. 44; findings of fact, conclusions of law and order filed on March 11, 2011, ex. 47). On September 15, 2011, the Nevada Supreme Court affirmed the dismissal of the petition as untimely (ex. 56). Remittitur issued on October 12, 2011 (ex. 58).
On October 13, 2011, petitioner filed this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF #2). On October 24, 2011, the court directed respondents to respond to an order to show cause regarding petitioner's assertions that he is entitled to equitable tolling (ECF #4). Petitioner claims that he is schizophrenic and illiterate and that another inmate assisted him with his federal petition (ECF #s 2, 15). Petitioner also alleges that he is and has been incompetent and that he has been treated with anti-psychotic drugs (id.). Respondents argue these claims are belied by the record and that petitioner is not otherwise entitled to equitable tolling (ECF #10).
The Antiterrorism and Effective Death Penalty Act (AEDPA) amended the statutes controlling federal habeas corpus practice to include a one-year statute of limitations on the filing of federal habeas corpus petitions. With respect to the statute of limitations, the habeas corpus statute provides:
28 U.S.C. § 2244(d).
The United States Supreme Court has held that a habeas petitioner's state postconviction petition, which was rejected by the state court as untimely under the statute of limitations, is not "properly filed," within the meaning of the statutory tolling provision of the AEDPA limitations period. Pace v. DiGuglielmo, 544 U.S. 408, 412-16 (2005). The Court in Pace v. DiGuglielmo held as follows:
Id. at 413-14.
In the present case, as discussed, petitioner was convicted, pursuant to a guilty plea, and judgment was entered on February 13, 2007 (ex. 21). He did not pursue a direct appeal. Petitioner took no action whatsoever until he filed a state postconviction petition for writ of habeas corpus on November 20, 2010 (ex. 33). As petitioner had no properly filed application for state postconviction or other collateral review pending during the period of time between the time his judgment of conviction became final and the time, more than three and one-half years later, he filed his state postconviction petition, this time is not statutorily tolled on that basis. See 28 U.S.C. § 2244(d)(2). Accordingly, petitioner's federal habeas petition, filed on October 13, 2011, is untimely pursuant to 28 U.S.C. § 2244(d).
The United States Supreme Court has held that the AEDPA's statute of limitations, at 28 U.S.C. "§ 2244(d) is subject to equitable tolling in appropriate cases." Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). The Supreme Court reiterated that "a petitioner is entitled to equitable tolling only if he shows: `(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland, 130 S.Ct. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Court made clear that the "exercise of a court's equity powers . . . must be made on a case-by-case basis," while emphasizing "the need for flexibility" and "avoiding [the application of] mechanical rules." Holland, 130 S.Ct. at 2563 (internal quotations and citations omitted). In making a determination on equitable tolling, courts must "exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case." Holland, 130 S.Ct. at 2563.
Here, petitioner claims that he filed his federal petition more than three years late due to "incompetency and ineffective assistance of counsel." He claims that he is illiterate, schizophrenic and that defense counsel failed to have him examined for competency at the time that he entered into his guilty plea agreement (ECF #15).
A petitioner's alleged ignorance of the law, lack of legal sophistication and lack of legal assistance do not constitute extraordinary circumstances and cannot justify equitable tolling. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 2009) ("we have held that a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting 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 petitioners lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling"). Moreover, a petitioner's illiteracy does not provide a basis for equitably tolling the limitations period. See, e.g., Gazzeny v. Yates, 2009 WL 294199, at *6 (C.D.Cal. Feb. 4, 2009) ("A prisoner's illiteracy or ignorance of the law do not constitute extraordinary circumstances" for tolling of statute of limitations); Barnett v. Knowles, 2006 WL 824474, at *5 (N.D.Cal. Mar. 29, 2006) (illiteracy and pro se status are not ordinarily extraordinary circumstances or external factors that may excuse failure to comply with federal habeas procedures); Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999) (lack of familiarity with legal process, even if caused by illiteracy, is not a basis for tolling statute of limitations); see also Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (rejecting illiteracy as cause for petitioner's procedural default stemming from failure to timely pursue his remedy to state supreme court).
Next, petitioner's claim that he is and has been incompetent is belied by the record. He asserts that defense counsel failed to "move for a competency hearing" (ECF #15 at 5). However, petitioner included with his petition documentation demonstrating that his counsel did in fact arrange a competency evaluation (ECF #2 at 50-54). A forensic competency evaluation concluded that he was competent to stand trial, did not exhibit delusional qualities, understood the charges against him, and was aware of the definition of plea bargain and why one might be advantageous (id.). The evaluator noted that petitioner's responses seemed to be self-serving and that while petitioner claimed that he had experienced auditory hallucinations 24 years ago, he had claimed nothing until recently (id.).
Further, respondents provided documentation that demonstrates that petitioner sent a kite to his prison caseworker on May 26, 2007, after his February 13, 2007 judgment of conviction, asking for help (ex. 63 at 28). He indicated that he wanted to go back to court and try to change his plea and get his case overturned (id.). On July 2, 2007, petitioner sent a kite indicating that he wanted to go to the law library to look for cases similar to his and to look for a lawyer (id. at 25). Respondents argue that these kites belie petitioner's claims that he is or was incompetent and that his incompetency prevented him from timely filing his federal habeas petition.
The court concludes that petitioner has failed to demonstrate (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland, 130 S.Ct. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Next, petitioner argues that his actual innocence claim overcomes the procedural bar of untimeliness pursuant to Schlup v. Delo, 513 U.S. 298 (1995). Respondents argue that petitioner's guilt is "conceded or plain," pursuant to Schlup because he pled guilty, and that his claim of actual innocence fails because he has not presented any new reliable evidence (ECF #10 at 7-10).
In Schlup, the United States Supreme Court explained that a claim of actual innocence is "a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Schlup, 513 U.S. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). To be credible, a gateway claim of actual innocence requires a petitioner "to 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." Id. at 324. While the Schlup standard does not require absolute certainty about the petitioner's guilt or innocence, it is a demanding standard that permits review only in the extraordinary case. House v. Bell, 547 U.S. 518, 537 (2006) (internal quotations and citations omitted); see also Schlup, 513 U.S. at 324 (emphasizing that "in the vast majority of cases, claims of actual innocence are rarely successful"). A petitioner's burden at the gateway stage is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt. House, 547 U.S. at 537.
Respondents point out that petitioner has not offered any new evidence at all (ECF #10 at 8). Petitioner has presented only information that was available at the time he entered his guilty plea. Petitioner merely asserts that no reasonable juror would find him guilty beyond a reasonable doubt based on his interpretation of this previously available material. In December 2006, petitioner pleaded guilty to second-degree murder in the shooting death of his wife.
He included the following with his federal petition:
The court agrees with respondents that this is not the type of evidence that the U.S. Supreme Court identified in Schlup as new and reliable. These documents are not "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Schlup, 513 U.S. at 324. Petitioner offers material that was available to him when he entered his guilty plea, and none of the material is "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence" that demonstrates his actual innocence. The court notes that it is not clear that the actual innocence gateway applies to a case such as this involving a guilty plea. See Smith v. Baldwin, 510 F.3d 1127, 1140 (9
Petitioner's federal petition is untimely. Petitioner has failed to demonstrate any basis for equitable tolling or to excuse the statute of limitations. Because the federal habeas petition was untimely filed, and because petitioner is not entitled to statutory or equitable tolling, this action must be dismissed.
In order to proceed with an appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9
