Opinion
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a state prisoner with counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This action proceeds on the March 14, 2008, petition. Currently pending before the court are petitioner's response to the court's August 7, 2008, order to show cause and respondent's motion to dismiss this action as untimely. This matter was set for hearing on October 29, 2008. See L.R. 78-230(b). However, petitioner's counsel was ill and could not appear. Therefore, the parties stipulated to submitting the matter on the papers. Accordingly, the court discharges the order to show cause.
For the reasons explained below, the court finds that the petition is late and recommends that respondent's motion to dismiss be granted.
I. Procedural History
On January 13, 2004, petitioner was convicted of various offenses in California. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof (Lodged Doc.) 1. Petitioner appealed, and the judgment was affirmed. Lodged Doc. 2. He requested the California Supreme Court to review the appellate court's decision, Lodged Doc. 3, and that request was denied on July 13, 2005. Lodged Doc. 4. As explained below, petitioner's conviction was final 90 days later, i.e., October 11, 2005. Then, 334 days later, on September 11, 2006, he filed a petition for a writ of habeas corpus in the trial court. Lodged Doc. 5. That court denied relief on October 18, 2006, in part because the petition was not timely under state law. Lodged Doc. 6. On December 7, 2007, he sought relief in the appellate court, which denied relief without comment on December 13, 2007. Lodged Docs. 7, 8. Finally, he sought relief in the California Supreme Court on December 21, 2007, which denied relief on January 30, 2008. Lodged Docs. 9. 10.
Apparently believing that the petition would be deemed filed the date it was mailed, counsel attempted on February 22, 2008, to mail the federal petition for filing. Pet., Attach. 1. However, the postal service returned it because counsel had not personally delivered it to the post office. Id. Thus, counsel personally delivered the petition to the post office for mailing. Forty-three days after the California Supreme Court's denial of post-conviction relief, on March 14, 2008, petitioner filed his federal habeas application.
This court directed respondent to file a response to the petition. On June 27, 2008, respondent filed a motion to dismiss and noticed the matter for hearing. See L.R. 78-230(c). Petitioner failed to file an opposition or a statement of non-opposition. Thus, on August 7, 2008, the court issued an order directing petitioner's counsel to show cause for his failure to respond to the motion and to file an opposition thereto. Petitioner timely responded.
II. Order to Show Cause
In his response to the order, petitioner's counsel explained that his wife has been extremely ill, and this illness has distracted him from his law practice. Counsel candidly states that he will accept any sanctions imposed by the court. The court accepts counsel's explanation and, in light of counsel's circumstances and timely response to the order to show cause, declines to impose sanctions. The order to show cause is discharged.
III. Motion to Dismiss
A. Standards
A one-year limitation period applies to applications for writs of habeas corpus filed by state prisoners. 28 U.S.C. § 2244(d)(1). The habeas statutory scheme provides that the limitation period is tolled for "[the time during which a properly filed application for State post-conviction or other collateral review... is pending ...." 28 U.S.C. § 2244(d)(2) (emphasis added). In California, a properly filed post conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold , 536 U.S. 214, 223 (2002). A motion is deemed "properly filed" when "its delivery and acceptance are in compliance with the applicable laws and rules governing filings," including the time for filing. Artuz v. Bennett , 531 U.S. 4, 8 (2000). Where a state court has denied a post-conviction motion as untimely, that motion was not "properly filed," for purposes of 28 U.S.C. § 2244(d)(2). Pace DiGuglielmo , 544 U.S. 408 , 414 (2005).
A court may grant equitable tolling when "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Calderon v. United States District Court (Kelly) , 163 F.3d 530, 541 (9th Cir. 1998) (en banc). "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). These circumstances must actually cause the untimeliness. Spitsyn v. Moore , 345 F.3d 796, 799 (9th Cir. 2003).
B. Analysis
Respondent contends that the petition was filed more than one year after his conviction was final. He argues that the petitioner is not entitled to statutory tolling because all of the postconviction motions filed in state court were untimely under California law and, therefore, were not "properly filed" for purposes of 28 U.S.C. § 2244(d)(2).
Petitioner concedes that the state courts denied relief on the ground of untimeliness. However, he argues that the trial court's denial of habeas relief was erroneous, and that in any event he is entitled to equitable tolling. The court finds that by focusing on whether petitioner's motions for post-conviction relief in the state courts were "properly filed," the parties miss the most basic point. The petition is untimely regardless of whether the post-conviction motions were properly filed. Moreover, petitioner has not demonstrated that he is entitled to equitable tolling.
i. The Petition is Untimely Regardless of Whether the Post-Conviction Motions were "Properly Filed"
The first inquiry in any analysis concerning the timeliness of an action must be when the limitation period began to run. In this case, there is no question that the period commenced when the petitioner's conviction became final on direct review. See 28 U.S.C. § 2244(d)(1)(A). The conviction became final 90 days after the California Supreme Court denied the petitioner's request for review of the appellate court's decision. See Bowen v. Roe , 188 F.3d 1157, 1159 (9th Cir. 1999). Thus, the conviction was final on October 11, 2005. Petitioner therefore had until October 11, 2006, to file his federal application. He filed it on March 14, 2008. Absent tolling the application is late and this action must be dismissed.
Thus, the next inquiry is whether statutory tolling applies, and if so, whether enough time is tolled to make any difference. If the petition is untimely with the extra time provided by tolling, then it cannot be timely without it. Here, petitioner used 334 days between October 11, 2005, the date his conviction became final, and September 11, 2006, the date he filed a post-conviction motion in the trial court. After the trial court denied relief, petitioner proceeded in an orderly fashion to the appellate court and to the California Supreme Court, which denied relief on January 30, 2008. Petitioner already had used 334 days of the limitation period and, with tolling, he therefore had 31 days remaining from January 30, 2008, to file his federal petition. That 31 days expired on February 22, 2008. Petitioner did not file the federal petition until March 14, 2008. Therefore, even with statutory tolling the federal petition is nearly one month late. The court now turns to the question of equitable tolling.
ii. Equitable Tolling
The next inquiry is whether petitioner can prove grounds for equitable tolling that would warrant deeming the federal petition to be timely. See Miranda v. Castro , 292 F.3d 1063, 1065 (9th Cir. 2002) (petitioner has the burden of proving entitlement to equitable tolling). Petitioner argues that his attorney's mishandling the mailing of the petition provides a basis for granting equitable tolling. However, it is well established that attorney negligence generally is not an extraordinary circumstance. See Frye v. Hickman , 273 F.3d 1144, 1146 (9th Cir. 2001) (counsel's miscalculation of filing date not an extraordinary circumstance). Here, petitioner alleges that on February 22, 2008, counsel attempted to mail the federal petition for filing, but it was returned by the postal service because counsel had not personally delivered it to the post office. Thus, counsel had to personally deliver the petition for mailing, which accounts for the filing date of March 14.
However, this circumstance, while arguably outside of petitioner's control, does not affect the petition's timeliness. The Local Rules of this Court require parties represented by counsel to file electronically unless they obtain permission from the assigned judge or magistrate judge to file in paper. L. R. 77-121(d), 5-133(a), (b). Through counsel, petitioner filed his application in paper, and it was deemed filed on March 14, 2008, the date it was received by the Clerk of the Court. L.R. 5-134(a). It appears that petitioner's counsel simply did not know that the court utilizes electronic filing. Moreover, it appears that counsel assumed that the petition would be deemed filed as of the date he mailed it. However, a habeas petition is deemed filed the date it is mailed only if the petitioner is proceeding without counsel. See Houstan v. Lack , 487 U.S. 266, 276 (1988) (for a prisoner without counsel, a notice of appeal is deemed timely filed as of the date it was delivered to prison staff to be mailed to the court). Counsel's lack of awareness about this court's electronic filing rules and about the applicability of the prisoner mailbox rule apparently resulted from negligence. However, as noted, under Frye , counsels conduct here cannot constitute extraordinary circumstances that would warrant equitable tolling. See Frye v. Hickman , 273 F.3d at 1146.
Nothing in the record shows that counsel obtained permission to file in paper.
Petitioner also argues that in deciding when to file his federal application, he in good faith relied on Ninth Circuit precedent that later was overruled. The Ninth Circuit recently held that state prisoners may seek equitable tolling for having delayed filing a federal petition based on Ninth Circuit precedent that subsequently is invalidated. See Harris v. Carter , 515 F.3d 1051, 1056 (9th Cir. 2008). Petitioner asserts that he delayed filing in federal court based on Dictado v. Ducharme , 244 F.3d 724, 727-28 (9th Cir. 2001), in which the Ninth Circuit held that in a state with exceptions to its timeliness rules for post-conviction motions, an untimely motion was "properly filed" for purposes of § 2244(d)(2). The United States Supreme Court overruled Dictado on April 27, 2005, when it held that regardless of exceptions to a state's rules, an untimely state post-conviction application is not "properly filed." Pace v. DiGugliemo , 544 U.S. 408, 413-414 (2005). The state courts found that the post-conviction motions were untimely under California's rules. Petitioner's counsel concedes as much. But he argues that he is entitled to the benefit of § 2244(d)(2) because he in good faith relied on Dictado , and therefore "he could pursue relief in state courts without jeopardizing his ability to file a federal habeas petition." Harris v. Carter , 515 F.3d 1051, 1055 (9th Cir. 2008). The argument fails.
As respondent notes in his reply, petitioner pursued post-conviction relief in the state courts after the Supreme Court overruled Dictado . Pace was decided on April 27, 2005. Petitioner began pursuing post-conviction relief in the state courts nearly five months later, on September 11, 2006, when he filed a habeas petition in the trial court. It simply is not possible for petitioner to have relied on Dictato in deciding when to file his federal application. Thus, he has failed to demonstrate that he is entitled to equitable tolling under Harris .
IV. Conclusion
For the reasons explained, the court finds that the March 14, 2008, petition for a writ of habeas corpus is untimely. Respondent's motion must be granted and this action must be dismissed.
Accordingly, it is hereby ORDERED that the August 7, 2008, order to show cause is discharged.
Further, it is RECOMMENDED that respondent's June 27, 2008, motion to dismiss be granted and this action be dismissed as untimely.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan , 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).