Opinion
No. C 02-2786 CW (PR).
June 15, 2005
ORDER DISMISSING PETITION AS UNTIMELY
INTRODUCTION
In response to the Court's Order to Show Cause, Respondent filed a motion to dismiss Petitioner's habeas petition as untimely. Petitioner opposed the motion and Respondent filed a reply. In an Order dated March 25, 2003, the Court denied the motion without prejudice and directed Petitioner to produce evidence that his petition was timely filed. Because the evidence presented by Petitioner does not establish that the petition was timely filed, the petition is dismissed as untimely.
BACKGROUND
On June 10, 1998, Petitioner was convicted of carjacking pursuant to a plea agreement and was sentenced to eighteen years in State prison. He did not file a direct appeal. On about October 24, 2001, he filed a petition for a writ of habeas corpus in the California Supreme Court. The petition was denied summarily on February 27, 2002, and that denial became final thirty days later, on March 29, 2002. On March 13, 2002, Petitioner filed a habeas petition in superior court, which was denied on the merits on March 27, 2002. Petitioner filed his federal petition on June 11, 2002.
DISCUSSION
I. APPLICABLE LAW
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996, imposed a statute of limitations on petitions for a writ of habeas corpus filed by State prisoners. Petitions filed by prisoners challenging non-capital State convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional State action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1).
The running of the limitations period is tolled for the time period "during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending" in State court. See 28 U.S.C. § 2244(d)(2). The limitations period is not tolled during the time between the date on which a final decision is issued on direct appeal and the date on which the first State collateral challenge is filed. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).
The one-year limitations period can also be equitably tolled.Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). Equitable tolling is unavailable in most cases, however, because it is applied only if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Id. (citation and internal quotation marks omitted). "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). The petitioner bears the burden of showing that this "extraordinary exclusion" should apply to him.Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
A federal or State habeas petition is deemed filed on the date the prisoner submits it to prison authorities for filing, rather than on the date it is received by the courts. Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2001), vacated and remanded on other grounds by Carey v. Saffold, 122 S. Ct. 2134 (2002). This is known as "the mailbox rule." Id.
II. ANALYSIS
Petitioner was convicted on June 9, 1998, and the conviction became final on August 8, 1998, when he failed to seek leave to appeal. See Cal. Penal Code § 1237.5; Cal. Rules of Court 31(d). The one-year limitations period, therefore, began to run on that date. Absent tolling, the limitations period would have expired on August 8, 1999. Petitioner did not file his federal petition until June 11, 2002, almost four years later. Petitioner has argued that the unavailability of AEDPA materials in the Mule Creek State Prison library at the time his federal habeas petition was due constituted an impediment to his filing a timely petition and also provides grounds for equitable tolling of the limitations period. Cf. Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (holding that the unavailability of materials in prison law library explaining the AEDPA may warrant equitable tolling or a delayed commencement of the limitations period pursuant to § 2244(d)(1)).
When he first responded to Respondent's motion to dismiss the petition as untimely, Petitioner stated that in "late 2000" he wrote to a federal public defender about his case and she sent him a copy of the AEDPA. He stated that was the first time he became aware of the statute and its one-year filing deadline. Based upon this assertion the Court calculated the applicable filing deadlines and informed Petitioner that in order for the present petition to be deemed timely he must allege facts susceptible to proof which establish that he learned of the statute of limitations "no earlier than December 29, 2000," and that the Mule Creek State Prison law library did not have AEDPA materials before that date. In response, Petitioner has filed an affidavit in which he states that he first learned of the statute of limitations "on or about Oct. 2000" when another inmate received notice of the statute from a federal public defender. He also states that the library at Mule Creek State Prison did not obtain a copy of the AEDPA until October 24, 2001, and that he filed his first State habeas petition on that same date. Based on these assertions, Petitioner argues that the one-year statute of limitations began to run on October 24, 2001, and he had until October 24, 2002, therefore, to file his federal petition. Petitioner filed his federal petition on June 5, 2002.
The Ninth Circuit has suggested that a petitioner's inability to access information about the statute of limitations deadline may warrant equitable tolling. See Whalem/Hunt, 233 F.3d at 1148. In Whalem/Hunt, the petitioner averred both that his prison's law library did not have the materials describing the AEDPA and that he "`had no knowledge of any limitations period'" before then. Id. at 1147. By contrast, Petitioner has alleged two different scenarios pertaining to when he first learned of the limitations period, but neither satisfy the Whalem/Hunt standard.
As noted above, when Petitioner first responded to Respondent's motion to dismiss the petition as untimely he alleged that he had received a copy of the AEDPA from a federal public defender in "late 2000." The Court told Petitioner that his petition would be timely only if he could allege that he learned of the statute no earlier than December 29, 2000. In his most recently filed affidavit Petitioner now states that he learned of the one-year deadline some time in October 2000, and only a year later had actual access to the statute when the AEDPA arrived in his prison's law library. The Court is unable to reconcile these conflicting factual statements by Petitioner. In either case, however, he has failed to allege facts which establish that he learned of the statute only after December 29, 2000, or which entitle him to equitable tolling until October 24, 2001.
In the first scenario, Petitioner had actual access to the statute in "late 2000," and he has not alleged facts which establish that he obtained access only after December 29, 2000. Therefore, as explained in the Court's prior Order denying the motion to dismiss, under this set of facts the petition is untimely.
In the second scenario, Petitioner first learned of the statute some time in October, 2000, but did not have access to a copy of the statute until October 24, 2001. The key fact an inmate needs to know is the existence of the deadline. A lack of physical access to the statute alone does not constitute "extraordinary circumstances" beyond a prisoner's control which make it "impossible" to file a timely petition. See Whalem/Hunt, 233 F.3d at 1147 (petitioner must show both that library did not have AEDPA materials and that he "`had no knowledge of any limitations period'" before then); cf. Malcolm v. Payne, 281 F.3d 951, 963 (9th Cir. 2002) (prisoner's "understandable" choice to postpone seeking federal habeas relief while pursuing State clemency proceedings was not beyond her control and therefore did not warrant equitable tolling). Nor does the lack of physical access amount to "an impediment to filing an application created by State action in violation of the Constitution" which delays the beginning of the limitations period. 28 U.S.C. § 2244(d)(1)(B). Accordingly, under this set of facts the statute began to run in October, 2000.
If the Court tolls commencement of the statute until October 31, 2000, the latest possible date in October, the petition nevertheless is untimely. If the statute began to run on October 31, 2000, only week remained before the statute's expiration date when Petitioner filed his first State habeas petition on October 24, 2001. When the California Supreme Court's decision denying the petition became final on March 29, 2002, Petitioner thus had one week to file his federal petition. But he did not hand his petition to prison authorities for mailing until June 5, 2002, more than two months later. Accordingly, the petition is untimely.
Petitioner has not presented evidence which entitles him to equitable tolling or to a delayed commencement of the statute of limitations such that his petition can be considered timely. Accordingly, the petition must be dismissed because it was not timely filed under 28 U.S.C. § 2244(d)(1).
CONCLUSION
For the foregoing reasons, the petition is DISMISSED WITH PREJUDICE as untimely. The Clerk of the Court shall enter judgment and close the file. All pending motions are TERMINATED.
IT IS SO ORDERED.