(HC) Miles v. Sullivan ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GENNEL EDWARD MILES, JR., No. 2:19-CV-0377-KJM-DMC-P 12 Petitioner, 13 v. ORDER 14 W.J. SULLIVAN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge as provided by Eastern District of California local rules. 20 On November 5, 2019, the Magistrate Judge filed findings and recommendations, 21 which were served on the parties and which contained notice that the parties may file objections 22 within the time specified therein. Timely objections to the findings and recommendations have 23 been filed. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 25 this court has conducted a de novo review of this case. Having reviewed the file, the court finds 26 the findings and recommendations to be supported by the record and by the proper analysis. 27 Petitioner’s objections appear to focus on an equitable tolling argument regarding 28 his reason for filing his second state habeas corpus petition past its deadline. He argues he failed 1 to properly file his second state petition because he was denied Priority Legal User (PLU) status 2 erroneously. He alleges he had a completed habeas petition ready to go before the state deadline 3 but needed to make photocopies to file it. Delay in accessing the law library caused him to fail to 4 meet the deadline. 5 Petitioner’s evidence undercuts this argument. He attaches an application for PLU 6 status dated March 23, 2018, 8 days past his filing deadline of March 14, 2018, which states he 7 has a completed application but no ability to photocopy. It appears he failed to attempt to 8 photocopy his petition before the deadline. 9 In any event, tolling that period of time does not save his petition from the 10 limitations period. Even if he benefits from the alleged equitable tolling, his third petition suffers 11 from the same delays, and he is well past the one-year limitations period of AEDPA. The 12 findings and recommendations do not address the third petition, resting on the untimeliness of the 13 second petition, but the same issues apply. 14 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the 15 court has considered whether to issue a certificate of appealability. Before petitioner can appeal 16 this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 17 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 18 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 19 constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 20 appealability indicating which issues satisfy the required showing or must state the reasons why 21 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 22 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 23 jurists of reason would find it debatable whether the district court was correct in its procedural 24 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 25 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 26 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)). For the reasons 27 set forth in the Magistrate Judge’s findings and recommendations, the court finds that issuance of 28 a certificate of appealability is not warranted in this case. 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed November 5, 2019, are adopted in 3 full; 4 2. Respondent’s motion to dismiss (ECF No. 10) is granted; 5 3. Petitioner’s petition for a writ of habeas corpus is dismissed as time-barred; 6 4. The court declines to issue a certificate of appealability; and 7 5. The Clerk of the Court is directed to enter judgment and close this file. 8 DATED: March 5, 2020. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28