Perucci v. Belleque, No. 1:2009cv00352 - Document 42 (D. Or. 2010)
Court Description: Opinion and Order. The Petition for Writ of Habeas Corpus 2 is DISMISSED. Signed on 12/15/2010 by Judge Owen M. Panner. (dkj)
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Perucci v. Belleque Doc. 42 IN THE UNITED STATES DISTRICT COURT FOR THI: DISTRICT OF OREGON PORTLAND DIVISION JASON MICHAEL PERUCCI, Civil No. 09-352-PA Petitioner, v. BRIAN BELLEQUE, OPINION AND ORDER Respondent. Thomas J. Hester Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner John R. Kroger Attorney General Andrew Hallman Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com PANNER, District Judge. Peti tioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 in which he c1allenges the legality of his underlying state convictions for Manslaughter in the Second Degree. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is dismissed. BACKGROUND Peti tioner was convicted by a jury in Curry County of two counts of second-degree Marslaughter for recklessly causing a fatal automobile collision. A5. a result, petitioner to 150 months in prison. Peti tioner took a direct the trial court sentenced Respondent's Exhibit 101. appeal, but the Oregon Court Appeals affirmed the triaJ. court's Judgment without opinion, the Oregon Supreme Court denied review. App. 280, 67 P.3d 998, Lev. of and State v. Perucci, 187 Or. denied 335 Or. 654, 74 P.3d 1084 (2003) . Petitioner next filed for post-conviction relief ("PCR") in Umatilla County where the PCR trial court denied relief on his claims. The Oregon Court of Appeals affirmed this decision without issuing a written opinion, review. Perucci v. and the Oregon Supreme Court denied Black2tter, 218 Or. App. rev. denied 344 Or. 401, 182 P.3d 200 Peti tioner filed his Corpus on April 3, 2009. federal 229, 179 P.3d 752, (2008). Petition for Writ of Habeas The parties agree that petitioner failed 2 - OPINION AND ORDER to file his Petition wi ttin the applicable one-year statute of limitations, but disagree as to whether petitioner is entitled to equitable tolling. DISCUSSION The Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted on April 24, 1996 and provides that a one-year statute of limitations applies to federal habeas corpus actions filed by state prisoners. 28 U.S.C. 2244 (d) (1). According to respondent's calculation, petitioner allowed 525 untolled days to pass prior to filing this action, thereby placing the Petition well outside the applicable 365-day limitation period. Petitioner does not disagree with this calculation, but argues that he is entitled to equitable tolling of AEDPA' s limi tations because: (11 he was transferred to statute of different institutions within the Oregon Department of Corrections on four occasions over the course)f more than eight years; and (2) he did not receive adequate assistance from inmate legal assistants or from the prisons' outdated libraries. Equitable tolling is available to toll the one-year statute of limitations available to Holland v. Florida, 130 28 U.S.C. S.Ct. § 2549, 2254 habeas corpus cases. 2560 (2010) seeking to invoke equi tablE~ tolling must establish: A litigant (1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstance prevented him from timely filing his petition. 3 - OPINION AND ORDER Pace v. DiGuglielmo, 544 u.s. 408, 418 (2005). A petitioner who fails to file a timely petition jue to his own lack of diligence is not entitled to equitable tolling. (9th Cir. 2001). Tillema v. Long, 253 F.3d 494, 504 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). Following proceedings, the conclusion of petitioner's direct appellate he waited 2 H: days to file his PCR action. these 218 days, During he was housed at the Eastern Oregon Correctional Institution, where he had also been housed for 562 days prior to the conclusion of his direct appeal. With respect to the filing of his federal habeas action, petitioner had 147 days to do so after the conclusion of his PCR action, and he was housed at the Oregon State Penitentiary for aLl 147 of these days. In addition, petitioner was housed at this same Institution for 484 days prior to the time his 147 days even began to run. Thus, the prison transfers petitioner describes in his Affidavit in no way impeded his ability to diligently proceed with this case and timely file his Petition. "Equitable tolling is a rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs." Wallace v. Kato, 549 u.s. 348, 396 (2007). With respect to petitioner's allegation that he had inadequate law library access and inadequate help from in mate legal assistants thereby hindering his access to the court, petitioner is 4 - OPINION AND ORDER not entitled to equitable tolling where he was allowed 4-5 hours per week for legal researCl, and where he enjoyed court-appointed counsel at every stage of his direct appeal, every stage of his PCR action, and during this federal habeas corpus. See United States v. Wilson, 690 F.2d 1267, 1272 (9th Cir. 1982) (offer of court- appointed counsel is sufficient to satisfy inmate's right of access to the courts, even if the law makes an library at his prison is inadequate) . Although petitioner alternative request evidentiary hearing on the issue of equitable tolling, receive an evidentiary hearing when he makes an he is not should "A habeas petitioner entitled to such a hearing. for 'a good-faith allegation that would, if true, entitle him to equitable tolling. ' " Roy v. Lampert, (quoting Laws v. Here, 465 F.3d 964 Lamarque, (9th Cir. 2006) 351 F.3d 919, 919 (italics removed) (9th Cir. 2003). petitioner has not :;:Jrovided the court with any allegation that, if proven true during an evidentiary hearing, would entitle him to equitable tolling. Accordingly, the court declines to hold an evidentiary hearing, and concludes that equitable tolling is not appropriate in this case. CONCLUSION Because petitioner failed to Petition for Writ of Habeas Corpus timely (#2) file this is DISMISSED. case, the The court declines to issue a Certificate of Appealability on the basis that 5 - OPINION AND ORDER 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. DATED this I I I I l-) D dayJf qecember, 2010. /11.--'/// "7// /; t /,h'L //t/ ,/ i//t/';~tL Owen M. Panner United States District Judge 6 - OPINION AND ORDER
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