ROBERT E. JONES, District Judge.
Petitioner, Bruce Henderson, brings this Petition (doc. #2) for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the sentence imposed by the State of Oregon following petitioner's plea of guilty to one count of Robbery in the Second Degree. Respondent filed an Answer (doc. #12) and a Response (doc. #11) to the Habeas Petition alleging that petitioner failed to file his habeas corpus petition within the applicable one-year statute of limitations period pursuant to 28 U.S.C. § 2244. In his Reply Regarding The Statute of Limitations (doc. #33), petitioner admits that his habeas corpus petition was not timely filed, but requests that the court equitably toll the statute of limitations and reach the merits of his petition. Upon careful review of the record in this case, the court concludes that petitioner is not entitled to equitable tolling, and that an evidentiary hearing is unnecessary because no facts have been alleged that would entitle petitioner to relief. Petitioner did not timely file his habeas corpus petition; accordingly, it is dismissed.
On October 7, 2003, petitioner pled guilty to robbery and was sentenced in the Lane County Circuit Court to 120 months imprisonment and three years of supervised release. (Case No. 20-03-15377, Resp. Ex. 101). Soon thereafter petitioner notified the Office of Public Defense Services that he wanted to appeal his case. (Pet. Ex. 1). Through that correspondence, on November 19, 2003, petitioner was alerted to the available avenues to challenge his sentence including both post-conviction relief and federal habeas corpus relief. (Pet. Ex. 1). The letter from the OPDS advised petitioner to file for post-conviction relief as soon as possible and that, "there is a one-year time period for filing federal habeas corpus relief." (Pet. Ex. 1).
Eight months later, petitioner filed for post-eonviction relief in Malheur Circuit Court on July 21, 2004. (Resp. Ex. 103). The petition for post-conviction relief was denied by the Circuit Court. (Resp. Ex. 110). The Circuit Court's decision was summarily affirmed by the Oregon Court of Appeals. (Resp. Ex. 114). The Oregon Supreme Court denied review and the judgment became final on May 8, 2007. (Resp. Ex. 116, 117).
On September 23, 2007, petitioner sent correspondence to an Oregon Department of Corrections paralegal, Nelson, including all of his legal materials. (Pet. Ex 2). In his communication, petitioner expressed that he was unsure whether or not he could still file a federal habeas corpus petition, but that he was waiting on the opportunity to make his legal call to be sure. (Pet. Ex. 2). A few days later, on September 26, 2007, a prison staff member, Rochester, responded to petitioner that, "you have about 3 months to file a federal habeas." (Pet. Ex. 2) This advice turned out to be inaccurate, as the petition was actually due on September 3, 2007.
On November 30, 2007, petitioner signed his federal habeas corpus petition and it was filed in the official court record on December 10, 2007. The parties agree that petitioner's habeas corpus petition was 90 days late. (Pet. Reply at 4). Petitioner argues that the statute of limitations should be equitably tolled because extraordinary circumstances prevented him from filing his petition for habeas corpus on time.
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a "1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). Statutory tolling of this limitation period is available for "[t]he time during which a properly filed application for State post-conviction or other collateral review ... [is pending]." 28 U.S.C. § 2244(d)(2). The parties agree that the AEDPA limitation period was tolled while petitioner pursued post-conviction relief. Accounting for this tolling, petitioner's federal habeas petition was due September 3, 2007.
Petitioner did not sign the instant federal habeas petition until 90 days after the statute of limitations had run. However, the U.S. Supreme Court has recognized that in certain situations equitable tolling of § 2244(d) may be appropriate.
The existence of extraordinary circumstances sufficient to justify equitably tolling the statute of limitations under AEDPA is based on a "determination [that] is highly fact dependent."
The Ninth Circuit has found that extraordinary circumstances exist where "external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim."
The first extraordinary circumstance that petitioner identifies as preventing his timely filing is his almost continuous incarceration in segregation. Petitioner argues that he has spent no more than 18 days outside of disciplinary segregation during his incarceration. (Pet. Reply at 7). As a consequence of his segregation in the Intensive Management Unit (IMU), petitioner has had his access to telephone calls and the law library severely limited.
A petitioner who is temporarily deprived of access to his legal file is not entitled to equitable tolling as a matter of law.
However, a sufficiently long deprivation of legal materials can justify equitable tolling. In
As noted above, however, petitioner "bears the burden of showing his own diligence and that the hardship caused by lack of access to his materials was an extraordinary circumstance that caused him to file his petition [90 days] late."
Petitioner has alleged that segregation in the IMU has significantly limited his access to legal resources. While it is clear from petitioner's citations to the administrative rules of the prison that limitations on legal resources do exist as a result of segregation, petitioner has not alleged how these limitations in fact prevented his timely filing. Petitioner had 116 days from the date judgment was final on his petition for post-conviction relief in which to file his habeas petition. Petitioner has neither alleged facts nor adduced any evidence to suggest that this was an insufficient amount of time to fill out the fifteen-page form petition that is available for prisoners to file habeas claims.
The cases in which the deprivation of a prisoner's legal files have resulted in equitable tolling are distinguishable from petitioner's case. For instance in
Further, in
Finally, petitioner's allegations that it was impossible in fact to file on time are belied by the fact that he was apparently simultaneously preparing a motion to correct his sentence in Lane County Circuit Court. On November 29, 2007, one day before signing his habeas petition, petitioner filed his motion to correct. (Resp. Ex. 118). Since petitioner was able to find the time and legal resources to prepare a motion for state court during this period, the circumstances of his incarceration were not an extraordinary impediment. Further, the fact that he was also working on his state motion to correct suggests that, had he spent that time diligently preparing his federal habeas petition, he might have been able to file it on time.
The second extraordinary circumstance that petitioner identifies is that he received inaccurate information on the filing deadline from a prison staff member. Petitioner has shown that he sent correspondence to the prison paralegal inquiring about his habeas claim. A prison staff member wrongly replied to that correspondence that petitioner had about three months to file. The inaccuracy of this advice, while extremely unfortunate, is not dispositive for the petitioner in this case; this allegation does not rise to the level of extraordinary circumstances sufficient to equitably toll the statute of limitations.
Ultimately, petitioner was responsible for correctly calculating the limitations period and timely filing his federal habeas petition. See
The Ninth Circuit has ruled that equitable tolling must meet a very high threshold.
A petitioner should be afforded the opportunity for an evidentiary hearing when he makes "a good-faith allegation that would, if true, entitle him to equitable tolling." Laws v. Lamarque. 351 F.3d 919, 921 (9th Cir. 2003). While in some ways this is a close case, petitioner's brief is devoid of allegations that would elevate his circumstances from unfortunate to extraordinary. Petitioner is not able to trathfully allege that due to his segregation he had no access to the federal habeas petition form; no access to writing implements; that he sent persistent communication to the prison paralegal; or that he persistently sought his legal phone call to no avail. Any number of trathful allegations that could demonstrate petitioner's extraordinary deprivation might have resulted in an evidentiary hearing, but the facts do not support such a finding in this case.
Based on the foregoing, petitioner has not made a showing sufficient to equitably toll the statute of limitations; accordingly, his Petition for Writ of Habeas Corpus (doc. #2) is untimely, and is DISMISSED WITH PREJUDICE. Defendant's request for an evidentiary hearing is DENIED. Pending motions, if any, are DENIED AS MOOT.
The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.