ORDER ADOPTING REPORT AND RECOMMENDATION DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

ROGER BENITEZ, District Judge

I. INTRODUCTION.

Petitioner Ricky Lenell Weaver ("Petitioner" or "Weaver"), through his counsel — Mr. John Fielding — has filed a petition for writ of habeas corpus ("Petition") under 28 U.S.C. § 2254.See, 28 U.S.C. § 2254 (". . . [A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court . . ."). Weaver seeks federal habeas relief on his convictions for possessions of a concealable firearm after having been convicted of robbery and cocaine for sale. See, California Penal Code § 12021.1(a) and California Health and Safety Code § 11351.5.

In February 2004, the Court found that the "[P]etition . . . appear[ed] to be untimely" under the one year limitations period prescribed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (Order dated February 3, 2004 at 8.25-26.) The Court then referred the matter to the Honorable Nita L. Stormes for a Report and Recommendation ("Report") on whether Weaver would be entitled to equitable tolling under Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003) or whether the doctrine of actual innocence would excuse his untimeliness. (Id. at 4.)

Judge Stormes issued a Report, finding Weaver is not entitled to equitable tolling under Spitsyn v. Moore and that the doctrine of actual innocence did not excuse Weaver's untimeliness. Thus, Judge Stormes recommended the Petition be dismissed.

Weaver, through his counsel, objects to Judge Stormes' findings. The Court has made a de novo review of the Report.See, 28 U.S.C. § 636(b)(1) (The Court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]."); see also, Wang v. Masaitis, 416 F.3d 992, 1000 (9th Cir. 2005). For the reasons that follow, the Court ADOPTS the Report in full. Accordingly, Weaver's Petition is DENIED as untimely. The Clerk shall close the file.

II. WEAVER'S PETITION IS UNTIMELY.

"AEDPA . . . impose[s] a one-year statute of limitations for state prisoners filing federal petitions for habeas corpus."Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). No one disputes, and the Court has already determined, that Weaver missed the AEDPA's one year deadline. Specifically, under 28U.S.C. § 2244(d)(1)(D), Weaver's limitations period started running on July 25, 2000, when Weaver became aware of the "factual predicate" of his claim. Weaver then waited 342 days before filing his first state habeas petition on July 2, 2001. Under AEDPA's statutory tolling provision — 28 U.S.C. § 2244(d)(2) — that filing tolled the limitations period until March 15, 2002, 30 days after the California Supreme Court denied Weaver's state habeas petition. See, Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). See also, Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir. 2001) (Per curiam);Cal. Rules of Court, Rule 29.4 (b). Having used up 342 days under the statute, Weaver had 23 days left, or until April 7, 2002, to file his federal Petition. He filed his Petition on October 21, 2002. So his Petition is late by about 197 days. The question now is whether he is entitled to equitable tolling. He is not.

A. Weaver Is Not Entitled To Equitable Tolling.

"[T]he one-year statute of limitations for filing a habeas petition may be equitably tolled if `extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.'" Spitsyn v. Moore, 345 F.3d at 799 (Citation omitted). Weaver "bears the burden of showing that this extraordinary exclusion should apply to him." Miranda v. Castro, 292 F.3d at 1065. He "must [also] show that the `extraordinary circumstances' were the cause of his untimeliness." Spitsyn v. Moore, 345 F.3d at 799.

"As a discretionary doctrine that turns on the facts and circumstances of a particular case, equitable tolling does not lend itself to bright-line rules." Id. at 801. However, "[e]quitable tolling should only apply where the petitioner . . . has demonstrated diligence in pursuing the matter." U.S. v. Martin, 408 F.3d at 1095. Where a petitioner is not reasonably diligent "throughout the period he seeks to toll" the chain of causation is broken. See, Baldayaque v. U.S., 338 F.3d at 150.

The critical time here is the 342 days between July 25, 2000 to July 2, 2001. In his objections and opposition to Respondent's Motion, Weaver argues he is entitled to equitable tolling during that time because his attorney mishandled his state habeas case. "[W]here an attorney's misconduct is sufficiently egregious, it may constitute an `extraordinary circumstance' warranting equitable tolling of AEDPA's statute of limitations." Spitsyn v. Moore, 345 F.3d at 800. In other words, "there are instances in which an attorney's failure to take necessary steps to protect his client's interests is so egregious and atypical that the court may deem equitable tolling appropriate." Ford v. Hubbard, 330 F.3d 1086, 1106 (9th Cir. 2003). Such was the case inSpitsyn v. Moore:

Though he was hired nearly a full year in advance of the [AEDPA] deadline, counsel completely failed to prepare and file a petition. Spitsyn and his mother contacted [counsel] numerous times, by telephone and in writing, seeking action, but these efforts proved fruitless. Furthermore, despite a request that he return Spitsyn's file, [counsel] retained it for the duration of the limitations period and more than two months beyond. That conduct was so deficient as to distinguish it from the merely negligent performance of counsel in Frye and Miranda.

Similarly, in Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003), the defendant's family retained an attorney in February 1997, only days after the Second Circuit affirmed his conviction. Id. at 148. One month later, the family members asked the attorney to file a habeas petition, but the attorney responded that the time to file such a petition had expired.Id. In fact, over fourteen months remained. Id. at 148-49. Instead, the attorney decided to file an early deportation motion. Id. at 149. Baldayaque's representative called the attorney every month, but the attorney assured her that he was "waiting for a court date." Id. In November 1997, the attorney filed the motion but cited no authority. Id. The time to file the a habeas petition expired in May 1998. Id. at 150. The deportation motion was denied in June 1998. Id. at 149. The attorney then informed the family that there was nothing he could do. Id. "In spite of being specifically directed by his client's representatives to file a [petition] [the attorney] failed to file such a petition at all." Id. at 152. The attorney "did no legal research on Baldayaque's case." Id. the attorney "never spoke to or met Baldayaque" Id. "When his letter to Baldayaque was returned, [the attorney] made no effort to locate Baldayaque." Id. The Court of Appeals found these actions "extraordinary." Id. at 152. See also, U.S. v. Martin, 408 F.3d 1089, 1095 (8th Cir. 2005) (Holding that equitable tolling applies where counsel "consistently lied to [petitioner] and his wife about the filing deadline; repeatedly lied to [petitioner] and his wife about the status of [petitioner's] case; refused to communicate with [petitioner] or his family; neglected to file any documents, belated or not, on [petitioner's] behalf; and failed to return any of [petitioner's] paperwork to him despite repeated requests and then demands. Such conduct presents the type of egregious attorney misconduct that may excuse an untimely filing.").

No such circumstances are present here. According to the record, and Weaver does not contend otherwise, in November 1999, Weaver retained Roseline Feral ("Feral") to represent him in seeking state post-conviction collateral relief. Between November and December 1999, Feral met with Weaver's trial counsel's investigator, reviewed documents, spoke with family members, and researched the court file. Feral also tried to contact Weaver's trial counsel, appellate counsel and the Office of the Public Defender for the release of Weaver's file. Feral did not receive the file until August 2000.

From January 2000 to August 2000, Feral tried to locate and interview all defense witnesses, and reviewed the trial transcripts. On July 25, 2000 — the triggering date of the state of limitations here — Feral met with Shirin Asadi, a witness that Weaver's trial and appellate counsel did not interview. In October 2000, Feral lost contact with Asadi. In January 2001, Feral re-established contact with Asadi through her attorney and received a signed declaration on February 14, 2001. From January 2001 to July 2001, Feral researched and drafted the state habeas petition.

On March 28, 2000, Feral wrote a letter to Weaver informing him that there was plenty of time to file his state habeas petition because there was no deadline. She also stated that a federal habeas petition needs to be filed "within a year of exhaustion of State remedies." In another letter dated April 11, 2000, Feral wrote, "[d]isregard what I said about the filing deadline. The one year deadline is from the time we exhaust all our State remedies. That means, one year from filing to the California Supreme Court. As far as filing with the Supremes, we have no deadline but can not sit on our . . . and do nothing like we have been."

In a letter dated February 20, 2001, Feral informed Weaver that she should be receiving a signed declaration from Asadi by the end of the week and that since she needed to obtain additional signed declarations, the habeas petition should be filed by the end of March 2001. She also wrote "[l]ike I told you, these things take time. And I told you not to dispair (sic) that I would get it done. You did not believe me. Here we are with a signed declaration in the mail. So do not sit there and tell me to file a piece of crap with nothing to back it up."

On March 13, 2001, Feral gave Weaver a declaration to sign and indicated that a petition would be ready shortly. She discussed some aspects of the case and wrote "[s]o please forgive me for not filing the Habeas like you kept insisting. It was your only chance and I did not want to leave Shirin out. Hope this puts you in a better mood. I'm not the flake you think I am."

On August 6, 2001, Feral wrote Weaver explaining why the Superior Court denied his petition. She also wrote, "[a]s far as the future, this is your decision how far you want to take it. The next stage is to renew the writ in the Fourth District. There is no time limit but I think we should do it within sixty days. Then it is with the State Supreme Court and then the Federal Circuit. We can not file in the Federal Courts until we have exhausted the state remedies." On April 12, 2002, Feral wrote to Weaver about his petition in the California Supreme Court.

Against this backdrop, Feral's conduct was not "sufficiently egregious", such that "it may constitute an `extraordinary circumstance' warranting equitable tolling of AEDPA's statute of limitations." Spitsyn v. Moore, 345 F.3d at 800. When retained, she promptly began investigating Weaver's case. Feral researched Weaver's case, kept him informed, and responded to his letters. There is also no indiction in the record that Feral ever refused to return Weaver's legal materials to him or otherwise denied him access to those materials. This is not an "instance in which an attorney's failure to take necessary steps to protect his client's interests [was] so egregious and atypical that the court may deem equitable tolling appropriate." Ford v. Hubbard, 330 F.3d 1086, 1106 (9th Cir. 2003).

As noted, the critical time here is between July 25, 2000 (when Feral interviewed Asadi and the statute began running) to July 2, 2001 when Feral filed Weaver's first state habeas petition, which tolled the statute of limitations. In that time, the statute ran for 342 days. This is critical since Weaver was left with only 23 days to file his Petition. This critical 342 days of delay appears to have resulted from Feral's failure to realize that the AEDPA's statute of limitations began to run on the day she interviewed Asadi. The record suggests that Feral believed the limitations period was going to run only after the California Supreme Court denied Weaver's habeas petition. Other than that, there is no explanation why Feral did not secure Asadi's declaration right after she was interviewed and before Feral lost contact with her. Nor is there any explanation why after Feral received Asadi's signed declaration on February 14, 2001, she waited four and half months — to July 2, 2001 — to file Weaver's state habeas petition. Significantly, Weaver had the burden to not only provide these explanations, but also show that Feral's conduct was "so egregious and atypical that the court may deem equitable tolling appropriate." Ford v. Hubbard, 330 F.3d at 1106. See also, Miranda v. Castro, 292 F.3d at 1065. He has not done so.

Given the lack of explanations, the only logical inference is that Feral made simple mistakes about the rules applied to the deadlines for filing of habeas petitions. "Such mistakes are ordinary." Baldayaque v. U.S., 338 F.3d at 152. And, "ordinary attorney negligence will not justify equitable tolling." Spitsyn v. Moore, 345 F.3d at 800. See also, Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) ("We conclude that the miscalculation of the limitations period by Frye's counsel and his negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling."). See also, Frye v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) ("In non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the `extraordinary' circumstances required for equitable tolling.");Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) ("[W]e cannot say that the lawyer's mistake in interpreting a statutory provision constitutes that `extraordinary circumstance' . . . that would justify equitable tolling."); Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) ("[C]ounsel's confusion about the applicable statute of limitations does not warrant equitable tolling."); Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) ("An attorney's miscalculation of the limitations period or mistake is not a basis for equitable tolling.").

This is true even if "counsel undertakes to offer . . . advice . . . regarding the availability of state or federal habeas relief." Miranda v. Castro, 292 F.3d at 1068. This is mainly "because [a petitioner] ha[s] no right to the assistance . . . of counsel regarding post-conviction relief. . . ." Id.; see also, Miller v. Keeney, 882 F.2d 1428, 1431-32 (9th Cir. 1989) ("The . . . right to the effective assistance of appellate counsel is derived entirely from the . . . right to appellate counsel, and the former cannot exist where the latter is absent."). See also, Roland v. Scribner, 2005 WL 2206578 at *4 (N.D.Cal. 2005) ("Because Petitioner was not entitled to an attorney in the first instance, and, in fact, could have filed for habeas relief pro se, the Court finds that the reason for the delay proffered by Petitioner does not constitute an extraordinary circumstance warranting equitable tolling.").

Lastly, Weaver has not directed the Court's attention to any affirmative actions he took, or was prevented from taking, to pursue his claim before his deadline for filing passed.

In sum, Weaver filed his federal habeas petition 197 days late. He has not shown that any extraordinary circumstances beyond his control made it impossible to file a petition on time. Therefore, Judge Stormes properly concluded that Weaver is not entitled to equitable tolling.

B. Doctrine of Actual Innocence Does Not Excuse Weaver's Untimeliness.

Weaver argues his untimeliness should be excused under the doctrine of actual innocence. Judge Stormes found Weaver's argument lacked merit. The Court agrees.

Constitutional claims that would otherwise be procedurally barred may be considered on the merits if a petitioner falls "within the `narrow class of cases . . . implicating a fundamental miscarriage of justice'", i.e., actual innocence.Schlup v. Delo ("Schlup"), 513 U.S. 298, 315 (1995) (Death penalty case where petitioner's procedurally barred claim may be considered on the merits if his claim of actual innocence implicates a fundamental miscarriage of justice). This serves as "a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claims considered on the merits." Id.

To pass through the "gateway", however, a petitioner "must show that it is more likely than not that no reasonable juror would have convicted him. . . ." Id. at 327. "It is not the district court's independent judgment as to whether reasonable doubt exists . . . rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do." Id. at 329. "A petitioner need not show that he is `actually innocent' of the crime he was convicted of committing; instead he must show that `a court cannot have confidence in the outcome of the trial.'" Majoy v. Roe, 296 F.3d 770, 776 (9th Cir. 2002) (quoting Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir. 1997)).

The Ninth Circuit has applied Schlup to post-AEDPA petitioners. See Majoy v. Roe, 296 F.3d at 776; Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir. 2002). However, neither the Supreme Court, nor the Ninth Circuit, has determined whether AEDPA's statute of limitations may be overridden by a showing of actual innocence. See, Majoy v. Roe, 296 F.3d at 776. Notwithstanding, Weaver has failed to offer any evidence meeting this requirement.

"The Supreme Court has stated that when considering Schlup claims, "`actual innocence' means factual innocence, not mere legal insufficiency." Jaramillo v. Stewart, 340 F.3d 877, 882-883 (9th Cir. 2003) (Citation omitted). "To establish actual innocence, petitioner must demonstrate that, in the light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. (Internal quotation omitted). That is "[i]t is not enough that the evidence shows the existence of a reasonable doubt; the petitioner must show that it is more likely than not that no reasonable juror' would have convicted him." Downs v. Hoyt, 232 F.3d 1031, 1040 (9th Cir. 2000). The Court "must [also] respect the province of the jury to determine the credibility of the witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict." Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Against this backdrop, Weaver cannot pass through the gateway. After considering the evidence in the record, including the evidence introduced at trial, the evidence not introduced at trial, and the evidence proffered by Weaver in this proceeding (Asadi's declaration), Weaver has failed to establish that it is more likely than not that no reasonable juror would have convicted him. In other words, the Court has absolute "confidence in the outcome of the trial.'" Majoy v. Roe, 296 F.3d at 776. Although the evidence against Weaver was largely circumstantial, "[c]ircumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction." Payne v. Borg, 982 F.2d 335, 341 (9th Cir. 1992).

The evidence at trial showed: on January 25, 1995, Francis Reilly, a security guard at Motel 6 in Carlsbad, observed suspicious activity in the vicinity of rooms 227 and 252. Reilly saw Weaver arrive at the motel in a station wagon, go to room 227, and leave with two women. Later, the women would return separately, each accompanied by a man other than Weaver. When this pattern of activity was repeated, Reilly contacted Carlsbad Police Officer Blake Burwell. After determining room 227 was registered to Weaver, who was on parole, Burwell called another officer, Donald Williams, to assist him. During a parole search of the room, Williams found a .357 revolver in a dresser drawer, along with men's clothing, including a pair of pants with a size 36 waist. Williams then went to room 252 and contacted a woman, who was asked to page Weaver by telephone.

Weaver arrived at the motel in a blue station wagon, along with Brian Hicks. Police arrested Weaver for being a felon in possession of a firearm, and in the search incident to the arrest found a key to room 209 at the Carlsbad Lodge.

Rooms 208 and 209 at the Carlsbad Lodge were registered to Weaver. In room 209, Williams found a locked safe. Williams radioed his fellow officers who were at the Motel 6 to check if Weaver had a key to a Sentry safe. A key to the safe was found under the seat cushion in the patrol car in which a handcuffed Weaver had been placed after his arrest. The safe key was delivered to Williams at the Carlsbad Lodge and it opened the safe in room 209. Williams found 23.9 grams of rock cocaine, $461 in cash, a checkbook for an account listing Weaver as a joint tenant, baggies, a small scale and .22 caliber bullets. A loaded .22 caliber semiautomatic pistol was found in a drawer.

The foregoing evidence sufficiently supports Weaver's convictions for possessions of a firearm and cocaine for sale. See, California Penal Code § 12021.1(a) and California Health and Safety Code § 11351.5. There is no question that the rooms in which weapons and drugs were found were registered to Weaver. Moreover, the key to the safe in which drugs and bullets were found was located under the seat cushion of the patrol car in which Weaver was sitting handcuffed. At the very least, this is circumstantial evidence supporting joint or constructive possession, custody or control of the guns or drugs by Weaver, and sufficient to sustain his conviction. See, People v. Patino, 160 Cal.App.3d 986, 996 (1984) ("Possession may be imputed when the contraband is found in a place immediately and exclusively accessible to the accused and subject to his dominion and control or to the joint dominion and control of the accused and another."); Frazzini v. Superior Court, 7 Cal.App.3d 1005, 1016 (1970) ("[E]lements of unlawful possession of drugs may be established by circumstantial evidence and any reasonable inferences drawn therefrom."). See also, People v. Cordova, 97 Cal.App.3d 665, 669-670 (1979); People v. Haynes, 253 Cal.App.2d 1060, 1064 (1967).

Weaver now argues that Asadi's testimony, which was not admitted at trial, somehow casts doubt on his convictions. Not so. Asadi was Hick's girlfriend who was living in room 208 of the Carlsbad Lodge on the night of the incident. Although she knew about the drugs, she was not involved in the drug trade. In a declaration, Asadi stated that she was aware that Lewis had bought a gun for her protection and that Hicks was involved in the possession and sales of drugs and had bought a small safe that he used to store drugs that was placed in room 209, Lewis' room.

But Asadi's testimony, even if true, is cumulative of other witness testimony at trial and thus does not undermine the confidence in the trial's outcome. See, U.S. v. Gilliam, 167 F.3d 1273, 1277 (9th Cir. 1999). For the defense, Nanette Shannon [ aka Shannon Michelle], who occupied room 227 at the Motel 6, testified that Weaver had rented the room for her and her boyfriend because they did not have money to pay for a place to live. She testified the gun found in the drawer belonged to her boyfriend and denied telling Williams the items in the drawer were Weaver's. The jury also heard evidence that Vivian Lewis, Weaver's former girlfriend, occupied room 209 at the Carlsbad Lodge. Lewis refused to testify on Fifth Amendment grounds, but her testimony was introduced through private investigator John Atwell and Parole Agent Michael Castro. Lewis had said that Weaver did not live in room 209 and did not know anything about the safe or its contents. The gun belonged to her; she obtained it after receiving obscene phone calls. Lewis also said the drugs in the safe belonged to her and Brian Hicks, who was living in room 208 with his girlfriend and her young son. Lewis and Hicks were dealing rock cocaine from room 209. Hicks also refused to testify on Fifth Amendment grounds. But like Lewis his testimony was introduced through other witnesses. Previously, he had told the defense investigator and Weaver's parole agent that the cocaine belonged to him and Lewis and Lewis owned the gun. Given the verdicts, the jury plainly discounted and disbelieved the defense evidence, and accepted the prosecution's version of the events as true. "[C]redibility choices in deciding which version of a story to believe are a matter for the jury." U.S. v. Cole, 755 F.2d 748, 755 (11th Cir. 1985).

In his objections, Weaver argues that Asadi's testimony would have been more credible than the statements made by Hicks and Lewis since Asadi was never charged with a crime. As Judge Stormes found, however, although Asadi was not involved in the drug business, she knew and saw what was going on. Therefore, it is not clear that her credibility would have been more favorable. In fact, Lewis and Hicks' admission concerning ownership of the drugs and a gun shortly after the incident would support their credibility. Further, nothing Asadi would have testified to would have diminished from the fact that Weaver had the keys to the safe that held the drugs and the ammunition.

III. CONCLUSION.

Weaver's Petition is untimely and he is not entitled to equitable tolling. Even if the doctrine of actual innocence excused untimely petitions, given the undisputed evidence in the record and the evidence Weaver has now proffered, the Court has confidence in the outcome of the trial. The Court ADOPTS Judge Stormes Report and in full. Weaver's Petition is DISMISSED as untimely. The Clerk shall close the file.

SO ORDERED.