Buff v. McEwan, No. 3:2011cv00372 - Document 11 (S.D. Cal. 2011)
Court Description: ORDER granting 8 Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus. Because he is not entitled to statutory or equitable tolling, Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus as barred by AEDPA's one-year statute of limitations is Granted. Signed by Magistrate Judge Ruben B. Brooks on 8/11/11. (All non-registered users served via U.S. Mail Service)(lao)
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Buff v. McEwan Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EVERETTE BUFF, 12 Petitioner, 13 v. 14 L. MCEWAN, WARDEN, 15 Respondent. ) ) ) ) ) ) ) ) ) ) Civil No. 11-CV-0372 RBB ORDER GRANTING RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [ECF No. 8] 16 17 Petitioner Everette Buff, a state prisoner proceeding pro se 18 and in forma pauperis, filed a Petition for Writ of Habeas Corpus 19 with exhibits on February 22, 2011, pursuant to 28 U.S.C. § 2254 20 [ECF Nos. 1, 5]. 21 judge jurisdiction. 22 argues that his state-appointed attorney introduced “false, forged, 23 and altered evidence” at his parole suitability hearing. 24 6.) 25 present at the hearing, which ultimately caused the parole board to 26 accept a five-year parole stipulation that Buff did not authorize. In his Petition, Buff consented to magistrate (Pet. 16, ECF No. 1.)1 In ground one, he (Id. at Buff claims that this evidence denied him his right to be 27 1 28 Because the pages in the Petition are not consecutively paginated, the Court will cite to it using the page numbers assigned by the electronic case filing system. 1 11cv0372RBB Dockets.Justia.com 1 (Id. at 9-10.) 2 Amendment right to due process was violated. 3 ground two, Buff argues that the California Court of Appeal 4 decision did not acknowledge the “due process implications” of his 5 appointed attorney’s actions and the parole board’s subsequent 6 decision to keep Buff in custody. 7 As a result, Petitioner contends his Fourteenth (Id. at 6.) In (Id. at 11.) The Court dismissed the case without prejudice and with leave 8 to amend for Petitioner’s failure to pay the five-dollar filing fee 9 or submit an application to proceed in forma pauperis [ECF No. 3]. 10 On February 28, 2011, Buff filed a motion to proceed in forma 11 pauperis, and the case was reopened [ECF No. 4]. 12 Respondent Leland McEwan filed a Motion to Dismiss Petition 13 for Writ of Habeas Corpus, along with a Memorandum of Points and 14 Authorities and a Notice of Lodgment on May 2, 2011 [ECF Nos. 8, 15 9]. 16 it is barred by the one-year statute of limitations set forth in 28 17 U.S.C. § 2244(d). 18 8.) 19 Reference of a Civil Action to a Magistrate Judge [ECF No. 10]. 20 The Petitioner did not file an opposition to Respondent’s Motion to 21 Dismiss. 22 McEwan argues that Buff’s Petition should be dismissed because (Mot. Dismiss Attach. #1 Mem. P. & A. 3, ECF No. On May 6, 2011, Respondent filed a Notice, Consent, and The Court has reviewed the Petition and Respondent’s Motion to 23 Dismiss and attachments. Although Civil Local Rule 7.1(f) provides 24 that the failure to oppose a motion may constitute consent to 25 granting the motion, this Court will evaluate the merits of 26 Respondent’s arguments. 27 reasons stated below, the Motion to Dismiss is GRANTED. S.D. Cal. Civ. R. 7.1(f)(3)(c). For the 28 2 11cv0372RBB 1 2 I. FACTUAL BACKGROUND On October 5, 1984, a jury found Buff guilty of first-degree 3 murder, and he was sentenced to twenty-five years to life in 4 prison. 5 D057345, slip op. at 1 (Cal. Ct. App. June 9, 2010).) 6 29, 2009, the Board of Parole Hearings (“BPH”) held a hearing on 7 Buff’s suitability for release on parole, at which Buff was 8 represented by his state-appointed attorney. 9 re Buff, No. EHC01327 (Cal. Super. Ct. Apr. 19, 2010) (order (Pet. 1-2, ECF. No. 1; See Lodgment No. 6, In re Buff, No. On January (Lodgment No. 4, In 10 denying petition for writ of habeas corpus at 1); Lodgment No. 6, 11 In re Buff, No. D057345, slip op. at 1.) 12 told his attorney that he wished to temporarily postpone the 13 hearing because Petitioner was unprepared. 14 Buff, No. D057345, slip op. at 1.) 15 instead, his attorney presented forged documents to the parole 16 board that indicated that Buff was stipulating to another five 17 years of incarceration. 18 the stipulation, making Buff ineligible for parole for five 19 additional years. 20 21 (Id.) Buff contends that he (Lodgment No. 6, In re Petitioner alleges that, At the hearing, the BPH accepted (Pet. Attach. #1 Ex. E, at 18, ECF No. 1.) II. PROCEDURAL BACKGROUND On February 1, 2010, Buff filed a petition for writ of habeas 22 corpus in the Imperial County Superior Court, which was denied on 23 March 2, 2010. 24 Super. Ct. filed Feb. 1, 2010) (petition for writ of habeas corpus 25 at 1); Lodgment No. 2, In re Buff, No. EHC01293 (Cal. Super. Ct. 26 Mar. 2, 2010) (order denying petition for writ of habeas corpus at 27 1-2).) 28 court, and it was denied again on April 19, 2010. (Lodgment No. 1, Buff v. Small, No. EHC01293 (Cal. He refiled his petition on March 22, 2010, in the same 3 (Lodgment No. 3, 11cv0372RBB 1 Buff v. Small, No. EHC01327 (Cal. Super. Ct. filed Mar. 22, 2010) 2 (petition for writ of habeas corpus at 1); Lodgment No. 4, In re 3 Buff, No. EHC01327 (order denying petition for writ of habeas 4 corpus at 1-2).) 5 California Court of Appeal for the Fourth District, Division One; 6 it was denied on June 9, 2010. 7 No. D057345 (Cal. Ct. App. filed May 17, 2010) (petition for writ 8 of habeas corpus at 1); Lodgment No. 6, In re Buff, No. D057345, 9 slip op. at 1-2). Next, Buff filed a habeas petition in the (Lodgment No. 5, Buff v. McEwan, On June 28, 2010, he filed a petition for habeas 10 corpus relief in the California Supreme Court, which was denied on 11 January 26, 2011. 12 (Cal. filed June 28, 2010) (petition for writ of habeas corpus at 13 1); Lodgment No. 8, http://appellatecases.courtinfo.ca.gov(select 14 “Supreme Court”; then enter supreme court case number). 15 his Petition for Writ of Habeas Corpus in this Court on February 16 22, 2011 [ECF No. 1]. (See Lodgment No. 7, In re Buff, No. S183998 III. 17 Buff filed STANDARD OF REVIEW 18 Buff’s Petition is subject to the Antiterrorism and Effective 19 Death Penalty Act (AEDPA) of 1996 because it was filed after April 20 24, 1996. 21 U.S. 202, 204 (2003) (citing Lindh v. Murphy, 521 U.S. 320, 326 22 (1997)). 23 corpus claims: 24 25 26 28 U.S.C.A. § 2244 (West 2006); Woodford v. Garceau, 538 AEDPA sets forth the scope of review for federal habeas The Supreme Court, a justice thereof, a circuit judge, or 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 only on the ground that he is in custody in violation of the Constitution or laws of the United States. 27 28 4 11cv0372RBB 1 28 U.S.C.A. § 2254(a) (West 2006); see also Reed v. Farley, 512 2 U.S. 339, 347 (1994); Hernandez v. Ylst, 930 F.2d 714, 719 (9th 3 Cir. 1991). 4 To present a cognizable federal habeas corpus claim, a state 5 prisoner must allege his conviction was obtained in violation of 6 the Constitution or laws of the United States. 7 2254(a). 8 violated his federal constitutional rights. 9 719; Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990); Mannhald 28 U.S.C.A § In other words, a petitioner must allege the state court Hernandez, 930 F.2d at 10 v. Reed, 847 F.2d 576, 579 (9th Cir. 1988). 11 a parole board’s decision also fall under the umbrella of habeas 12 review. 13 (“If the Board denies parole, the prisoner can seek judicial review 14 in a state habeas petition.”) 15 Petitions challenging Swarthout v. Cooke, 562 U.S. __, 131 S.Ct. 859, 860 (2011) A federal district court does “not sit as a ‘super’ state 16 supreme court” with general supervisory authority over the proper 17 application of state law. 18 (5th Cir. 1986); see also Lewis v. Jeffers, 497 U.S. 764, 780 19 (1990) (holding that federal habeas courts must respect state 20 court’s application of state law); Jackson, 921 F.2d at 885 21 (concluding federal courts have no authority to review a state’s 22 application of its law). 23 only to correct errors of federal constitutional magnitude. 24 Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989) 25 (stating that federal courts are not concerned with errors of state 26 law unless they rise to the level of a constitutional violation). Smith v. McCotter, 786 F.2d 697, 700 Federal courts may grant habeas relief 27 28 5 11cv0372RBB 1 In 1996, Congress “worked substantial changes to the law of 2 habeas corpus.” 3 1997). 4 5 6 Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. Amended section 2254(d) now reads: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgement of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -- 7 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 8 9 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 10 11 12 13 28 U.S.C.A § 2254(d). The Supreme Court, in Lockyer v. Andrade, 538 U.S. 63 (2003), 14 stated that “AEDPA does not require a federal habeas court to adopt 15 any one methodology in deciding the only question that matters 16 under section 2254(d)(1) -- whether a state court decision is 17 contrary to, or involved an unreasonable application of, clearly 18 established Federal law.” 19 court is therefore not required to review the state court decision 20 de novo, but may proceed directly to the reasonableness analysis 21 under § 2254(d)(1). 22 Id. at 71 (citation omitted). A federal Id. The “novelty” in § 2254(d)(1) is “the reference to ‘Federal 23 law, as determined by the Supreme Court of the United States.’” 24 Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir. 1996) (en banc), rev’d 25 on other grounds, 521 U.S. 320 (1997) (emphasis in original 26 deleted). 27 Supreme Court as the font of ‘clearly established’ rules.” 28 “[A] state court decision may not be overturned on habeas corpus Section 2254(d)(1) “explicitly identifies only the 6 (Id.) 11cv0372RBB 1 review, for example, because of a conflict with Ninth Circuit-based 2 law.” 3 state court decision is ‘contrary to, or involved an unreasonable 4 application of,’ an authoritative decision of the Supreme Court.” 5 Id. (citing Childress v. Johnson, 103 F.3d 1221, 1224-26 (5th Cir. 6 1997); Devin v. DeTella, 101 F.3d 1206, 1208 (7th Cir. 1996); see 7 Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996)). 8 9 10 11 12 13 14 Moore, 108 F.3d at 264. “[A] writ may issue only when the Furthermore, with respect to the factual findings of the trial court, AEDPA provides: In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgement of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1). 15 IV. 16 Petitioner seeks habeas relief on two grounds. DISCUSSION In ground one, 17 he alleges that the introduction of “false, forged and altered 18 evidence” at his parole hearing resulted in a five-year 19 unsuitability finding. 20 his due process rights under the Fourteenth Amendment. 21 particular, Buff claims he was scheduled to appear before the BPH 22 to determine if he was suitable for parole on January 29, 2009. 23 (Id.; see also Lodgment No. 4, In re Buff, No. EHC01327 (order 24 denying petition for writ of habeas corpus at 1); Lodgment No. 6, 25 In re Buff, No. D057345, slip op. at 1.)2 26 wrote a letter to the BPH on January 4, 2009, inquiring whether he (Pet. 6, ECF. No 1.) This deprived him of (Id.) In Petitioner contends he 27 2 28 At some places in Buff’s Petition, he alleges the hearing took place on January 27, 2009; at others, January 29, 2009. (See id. at 6-10.) 7 11cv0372RBB 1 would be appointed an attorney for the parole hearing. 2 (citing id. Attach. #1 Ex. A, at 2), ECF No. 1.) 3 one week before the hearing, his appointed attorney, Philip Osula, 4 met with Petitioner and advised him to forego the hearing because 5 Buff was “not prepared.” 6 (Pet. 6 Buff asserts that (Id.) Petitioner alleges that on January 27, 2009, he was escorted 7 from his cell to meet with Osula prior to the scheduled parole 8 hearing. 9 him a “BPH 1001(a) form” to complete. (Id. at 7.) During the meeting, Buff claims Osula handed (Id.) Buff checked the 10 section marked “Postpone Hearing” and wrote that the reasons were 11 due to “No Access to Paperwork, Not Enough Time to Confer With 12 Attorney.” 13 already been checked by someone else. 14 Ex. D, at 11).) 15 for Parole,” was checked off. 16 at 11).) 17 agreeing to the five-year unsuitability stipulation; he only wanted 18 the hearing postponed. 19 (Id.) He noticed that several boxes on the form had (Id. (citing id. Attach. #1 Specifically, the section entitled, “Not Suitable (Id. (citing id. Attach. #1 Ex. D, Buff maintains that he told Osula that Petitioner was not (Id. at 7-8.) According to Petitioner, during the hearing, Osula stipulated 20 to a five-year unsuitability for parole, against Buff’s 21 instructions. 22 Petitioner asserts Osula agreed to the stipulation and stated that 23 Buff “[r]ecognizes the fact he’s not ready for parole and he’s 24 definitely not suitable. 25 free, get–participate in self-help groups, get a v[o]cation and 26 [Buff] believes that five years would be sufficient for him to do 27 so.” (Id. (citing id. Attach. #1 Ex. E, at 16-17).) The He needs more time to be disciplinary (Id. (citing id. Attach. #1 Ex. E, at 18).) 28 8 11cv0372RBB 1 When Buff received the 1001(a) form back, he claims it had 2 been altered even further. 3 5 years of unsuitability” had been added, followed by the initials 4 “P.O.” (Id. (citing id. Attach. #1 Ex. D, at 11).) 5 (Id.) “Prisoner elects to stipulate to Petitioner alleges that his due process rights were violated 6 when Osula altered the form and falsely represented to the panel 7 that Buff was waiving his right to be present at the hearing. 8 at 9 (citing id. Attach. #1 Exs. D at 11, E at 16).) 9 intentionally misled the BPH and deprived Petitioner of his right Osula 10 to participate at the parole hearing. 11 alleges that because he never waived his right to be present at the 12 hearing, “[d]ue process demands a new hearing . . . . ” 13 (Id. at 10.) (Id. The Petitioner (Id.) In ground two, Petitioner challenges the California Court of 14 Appeal’s decision to deny his state habeas petition. 15 Buff asserts that the court of appeal failed to acknowledge the 16 “due process implications” of Osula’s actions and the Board’s 17 subsequent decision to deny Buff parole. 18 not authorize the state appointed attorney to waive his presence at 19 the hearing nor his right to speak and to present evidence [o]n his 20 behalf.” 21 Osula falsified the BPH 1001(a) form, which ultimately led to the 22 Board’s acceptance of the five-year stipulation. 23 Accordingly, Buff argues that his due process rights were violated. 24 (Id.) 25 (Id. at 12.) (Id.) (Id. at 11.) “Petitioner did Additionally, the Petitioner contends that (Id.) Respondent McEwan moves to dismiss the Petition as barred by 26 the one-year statute of limitations set forth 28 U.S.C. § 2244(d). 27 (Mot. Dismiss Attach. #1 Mem. P. & A. 3, ECF No. 8.) 28 claims that the BPH informed Buff of the five-year stipulated 9 Respondent 11cv0372RBB 1 denial by letter, dated February 18, 2009. 2 Attach. #1 Ex. B, at 4, ECF No. 1).) 3 claims he did not become aware of the stipulation until April of 4 2009. 5 Buff’s Petition was filed after the statute of limitations.” 6 “Assuming Buff discovered the five-year denial on May 1, 2009, he 7 was required to file his petition on May 1, 2010.” 8 Yet, he filed his Petition on February 16, 2011, “656 days after he 9 allegedly became aware of the five-year denial.” (Id.) (Id. (citing Pet. McEwan acknowledges that Buff Respondent alleges that “even based on this date, (Id.) (Id. at 3-4.) (Id. at 4.) 10 Finally, Respondent alleges that neither statutory nor equitable 11 tolling is available. 12 13 A. (Id. at 4-5.) The One-Year Statute of Limitations McEwan maintains that Buff’s Petition is barred by AEDPA’s 14 one-year statute of limitations and should be dismissed. 15 Dismiss Attach. #1 Mem. P. & A. 3, ECF No. 8.) 16 limitations for federal habeas corpus petitions is set forth in 17 AEDPA. 18 19 (Mot. The statute of As amended, § 2244(d) provides: (1) 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. The limitation period shall run from the latest of -- 20 21 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 22 23 24 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 25 26 27 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 28 10 11cv0372RBB 1 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 2 3 4 28 U.S.C.A. § 2244(d)(1). The one-year statute of limitations in 28 U.S.C. § 2244(d)(1) 5 applies to habeas petitions challenging denial of parole, and 6 beings to run the day after an inmate receives notice of the parole 7 board’s decision. 8 (9th Cir. 2003); Watson v. Woodford, 247 F. App’x 938, 939 (9th 9 Cir. 2007) (same); see also Shelby v. Bartlett, 391 F.3d 1061, 1066 Redd v. McGrath, 343 F.3d 1077, 1082, 1084-85 10 (9th Cir. 2004) (holding that limitations period for challenging 11 disciplinary order begins to run the day after receiving notice of 12 the denial of inmate’s appeal). 13 The parole hearing took place on January 29, 2009, and a 14 letter was sent to Buff on February 18, 2009, alerting him of the 15 five-year parole stipulation. 16 ECF No. 1.) 17 aware of the facts in support of [his] claim . . . on or about 18 April 2009.” 19 received notice on April 30, 2009, the statute of limitations would 20 have begun to run on May 1, 2009. 21 (explaining that the one-year statute of limitations under AEDPA 22 begins to run the day after an inmate learned of the parole board’s 23 decision). 24 on April 30, 2010. 25 46 (9th Cir. 2001) (quoting Fed. R. Civ. P. 6(a)) (“In computing 26 any amount of time prescribed or allowed . . . by any applicable 27 statute, the day of the act, event, or default from which the 28 designated period of time runs shall not be included.”) (See Pet. Attach. #1 Ex. B, at 4, Despite this letter, Buff alleges he “first became (Id. Attach. #1 Ex. C, at 8.) Assuming Petitioner See Redd, 343 F.3d at 1084 The one-year statute of limitations would have expired See Patterson v. Stewart, 251 F.3d 1243, 1245- 11 Buff filed 11cv0372RBB 1 his federal Petition almost a year later, on February 22, 2011. 2 (Pet. 1, ECF No. 1.) 3 sufficient statutory or equitable tolling, his claims are barred by 4 AEDPA’s statute of limitations. Therefore, unless he is entitled to 5 1. Statutory Tolling 6 Respondent McEwan argues that Buff is not entitled to 7 statutory tolling of the limitation period. (Mot. Dismiss Attach. 8 #1 Mem. P. & A. 4, ECF No. 8.) 9 superior court denied Buff’s habeas petition because it was not McEwan maintains that the state 10 filed within a reasonable time. 11 Buff, No. EHC01293 (order denying petition at 1-2)).) 12 Respondent notes that Buff filed “another improper, successive 13 petition” with the superior court and then with the state court of 14 appeal; both were deemed untimely. 15 In re Buff, No. EHC01327 (order denying petition for writ of habeas 16 corpus at 1-2); Lodgment No. 6, In re Buff, No. D057345, slip op. 17 at 1-2).) 18 tolling if his petition is denied as untimely by the California 19 courts.” 20 that because Buff is not entitled to statutory tolling, the statute 21 of limitations expired on May 1, 2009. 22 (Id. (citing Lodgment No. 2, In re The (Id. (citing Lodgment No. 4, Respondent alleges, “A petitioner is not entitled to (Id. (citing Pace, 544 U.S. at 417).) McEwan concludes (Id.) In his Petition, Buff does not include any facts that suggest 23 statutory tolling applies, and he has not opposed Respondent’s 24 Motion to Dismiss. (See Pet. 6-12, ECF No. 1.) 25 The statute of limitations period under AEDPA is tolled during 26 periods in which a petitioner is properly seeking collateral review 27 of a pending state court judgment. 28 2244(d) states, “The time during which a properly filed application 12 Specifically, 28 U.S.C. § 11cv0372RBB 1 for State post-conviction or other collateral review with respect 2 to the pertinent judgment or claim is pending shall not be counted 3 toward any period of limitation under this subsection.” 4 U.S.C.A. § 2244(d)(2); see also Pace v. DiGuglielmo, 544 U.S. 408, 5 410 (2005). 6 delivery and acceptance are in compliance with the applicable laws 7 and rules governing filings.” 8 (2000) (explaining that typical filing requirements include all 9 relevant time limits). 28 “[A]n application is ‘properly filed’ when its Artuz v. Bennett, 531 U.S. 4, 8 “When a postconviction petition is untimely 10 under state law, ‘that [is] the end of the matter’ for purposes of 11 § 2244(d)(2).” 12 536 U.S. 214, 226 (2002)); see also Zepeda v. Walker, 581 F.3d 13 1013, 1018 (9th Cir. 2009). 14 Pace, 544 U.S. at 414 (quoting Carey v. Saffold, The interval between the disposition of one state petition and 15 the filing of another may be tolled under “interval tolling.” 16 Carey, 536 U.S. at 223. 17 tolled for ‘all of the time during which a state prisoner is 18 attempting, through proper use of state court procedures, to 19 exhaust state court remedies with regard to a particular post- 20 conviction application.’” 21 Cir. 1999) (quoting Barnett v. Lamaster, 167 F.3d 1321, 1323 (10th 22 Cir. 1999)); see also Carey, 536 U.S. at 219-22. 23 limitations is tolled from the time a petitioner’s first state 24 habeas petition is filed until state collateral review is 25 concluded, but it is not tolled before the first state collateral 26 challenge is filed. 27 2007) (citing Nino, 183 F.3d at 1006). “[T]he AEDPA statute of limitations is Nino v. Galaza, 183 F.3d 1003, 1006 (9th The statute of Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. 28 13 11cv0372RBB 1 Even if Buff did not learn the result of his parole hearing 2 before April 30, 2009, the statute of limitations in his case began 3 to run on May 1, 2009. 4 petition until February 1, 2010, and it was denied as untimely on 5 March 2, 2010. 6 (petition for writ of habeas corpus at 1); Lodgment No. 2, In re 7 Buff, No. EHC01293 (order denying petition at 1-2) (“Petitioner has 8 waited almost a year to file his petition after notice of his 9 waiver. Yet, he did not file his first state habeas (Lodgment No. 1, Buff v. Small, No. EHC01293 Petitioner failed to raise his claims in a timely 10 fashion”).) 11 which was also denied on April 19, 2010. 12 Small, No. EHC01327 (petition for writ of habeas corpus at 1); 13 Lodgment No. 4, In re Buff, No. EHC01327 (order denying petition 14 for writ of habeas corpus at 1-2) (“The petition is denied as a 15 repetitive petition that does not allege a change in the applicable 16 facts or law.”).) 17 appellate court was also denied as untimely. 18 In re Buff, No. D057345, slip op. at 1-2 (“Buff’s petition is 19 clearly untimely.”).) 20 not “properly filed,” he is not eligible for statutory tolling 21 under § 2244(d)(2). Buff filed another habeas petition in superior court, (Lodgment No. 3, Buff v. A subsequent habeas petition filed with the (See Lodgment No. 6, Because Buff’s state habeas petitions were See Pace, 544 U.S. at 417. Interval tolling only applies to petitions that are “properly” 22 23 filed in state court. 28 U.S.C. § 2244(d)(2); Nino, 183 F.3d at 24 1006. 25 544 U.S. at 417. 26 interval tolling is not available. 27 Buff, No. EHC01293 (order denying petition at 1-2); Lodgment No. 4, 28 In re Buff, No. EHC01327 (order denying petition for writ of habeas Petitions that are untimely are not “properly” filed. Pace, Because Buff’s state petitions were untimely, 14 (See Lodgment No. 2, In re 11cv0372RBB 1 corpus at 1-2); Lodgment No. 6, In re Buff, No. D057345, slip op. 2 at 1; Pace, 544 U.S. at 417. 3 2. 4 Equitable tolling of the statute of limitations is appropriate 5 when “‘extraordinary circumstances beyond a prisoner’s control make 6 it impossible’” to file a timely petition. 7 F.3d 796, 799 (9th Cir. 2003) (quoting Brambles v. Duncan, 330 F.3d 8 1197, 1202 (9th Cir. 2003)); see also Stillman v. LaMarque, 319 9 F.3d 1199, 1202 (9th Cir. 2003). Equitable Tolling Spitsyn v. Moore, 345 “[A] litigant seeking equitable 10 tolling bears the burden of establishing two elements: 11 has been pursuing his rights diligently, and (2) that some 12 extraordinary circumstance stood in his way.” 13 418 (citations omitted); see also Lawrence v. Florida, 549 U.S. 14 327, 335 (2007); Rouse v. U.S. Dep’t of State, 548 F.3d 871, 878-79 15 (9th Cir. 2008); Espinoza-Matthews v. California, 432 F.3d 1021, 16 1026 (9th Cir. 2005). (1) that he Pace, 544 U.S. at 17 “‘[T]he threshold necessary to trigger equitable tolling 18 [under AEDPA] is very high, lest the exceptions swallow the rule.’” 19 Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting 20 United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). 21 The failure to file a timely petition must be the result of 22 external forces, not the result of the petitioner’s lack of 23 diligence. 24 “Determining whether equitable tolling is warranted is a ‘fact- 25 specific inquiry.’” 26 Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)). Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Spitsyn, 345 F.3d at 799 (quoting Frye v. 27 McEwan argues that Petitioner has not demonstrated that 28 extraordinary circumstances beyond his control made it impossible 15 11cv0372RBB 1 to file his Petition on time. 2 A. 4, ECF No. 8.) 3 took a year to find an inmate to draft his first state court 4 petition as insufficient to entitle Buff to equitable tolling. 5 (Id. at 5.) 6 (citing Pet. Attach. #1 Ex. C, at 8, ECF No. 1).) 7 argues, “Most inmates are ‘laypersons unlearned in the law.’” 8 (Id.) 9 should be dismissed. 10 (Mot. Dismiss Attach. #1 Mem. P. & Respondent dismisses Buff’s contention that it Petitioner is a layperson unlearned in the law. (Id. Yet, McEwan Accordingly, McEwan maintains, the federal habeas Petition (Id.) Buff alleges he initially “did not appreciate the legal 11 significance” of the events that occurred at his parole hearing. 12 (Pet. Attach. #1 Ex. C, at 8, ECF No. 1.) 13 another prisoner alerted Buff that he had a potential claim; he 14 realized he should “seek assistance in challenging the parole 15 board’s finding.” 16 claims he “exhausted every avenue available to [him] at Calipatria 17 . . . to find an inmate who was qualified and willing to assist 18 [him] with the appropriate legal challenge to the board’s findings 19 and [his] attorney’s acts or omissions.” 20 9.) 21 of 2010, when another inmate agreed to prepare the Petition on 22 Buff’s behalf. In April of 2009, (Id. Attach. #1 Ex. C, at 8-9.) Petitioner (Id. Attach. #1 Ex. C, at Buff asserts he was unable to obtain assistance until January (Id. Attach. #1 Ex. C, at 9.) 23 “[I]t is well settled that inexperience and ignorance of the 24 law are insufficient to constitute extraordinary circumstances[]” 25 to justify equitable tolling. 26 (FMO), 2009 WL 1598419, at *5 (C.D. Cal. June 4, 2009) (citations 27 omitted); see also Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th 28 Cir. 2006) (“[A] pro se petitioner’s lack of legal sophistication Furr v. Small, No. CV 08-6870 ODW 16 11cv0372RBB 1 is not, by itself, an extraordinary circumstance warranting 2 equitable tolling.”); Marsh v. Soares, 223 F.3d 1217, 1220 (10th 3 Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) 4 (“Ignorance of the law, even for an incarcerated pro se petitioner, 5 generally does not excuse prompt filing.”); Hines v. Runnell, 2003 6 U.S. Dist. LEXIS 7662 at *6 (N.D. Cal. Apr. 30, 2003); Fisher v. 7 Ramirez-Palmer, 219 F. Supp. 2d 1076, 1081 (E.D. Cal. 2002). 8 9 The Petitioner argues that because he lacks a legal education, he was initially unaware that he could state a habeas claim, and 10 when he understood that he had a viable claim, Buff was unable to 11 draft the Petition himself. 12 statements do not establish extraordinary circumstances. 13 “lack of legal sophistication” is not enough to entitle him to 14 equitable tolling. These Buff’s Raspberry v. Garcia, 448 F.3d at 1154. 15 V. 16 (Pet. Attach. #1 Ex. C, at 8.) CONCLUSION Because he is not entitled to statutory or equitable tolling, 17 Respondent’s Motion to Dismiss the Petition for Writ of Habeas 18 Corpus as barred by AEDPA’s one-year statute of limitations is 19 GRANTED. 20 21 Dated: August 11, 2011 RUBEN B. BROOKS United States Magistrate Judge 22 23 cc: All parties of record 24 25 26 27 28 17 K:\COMMON\BROOKS\CASES\HABEAS\BUFF0372\Order re MTD.wpd 11cv0372RBB
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