(HC) Nedd v. Bird ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY S. NEDD, Case No. 1:22-cv-00704-JLT-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS PETITION AS UNTIMELY1 14 LANDON BIRD, FOURTEEN-DAY OBJECTION PERIOD 15 Respondent. (Doc. Nos. 1, 8) 16 17 18 Pending before the Court is Petitioner Jeffrey S. Nedd’s pro se petition for writ of habeas 19 corpus under 28 U.S.C. § 2254 constructively filed with this Court on June 6, 2022.2 (Doc. No. 1, 20 “Petition”). In response, Respondent filed a Motion to Dismiss. (Doc. No. 8). Petitioner filed an 21 opposition (Doc. No. 11), and Respondent filed a reply. (Doc. No. 12). For the reasons stated 22 below, the undersigned recommends the district court grant Respondent’s motion to dismiss and 23 dismiss the petition as untimely. 24 //// 25 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 26 (E.D. Cal. 2022). 2 The Court applies the “prison mailbox rule” to pro se prisoner petitions, deeming the petition filed on the 27 date the prisoner delivers it to prison authorities for forwarding to the clerk of court. Houston v. Lack, 487 U.S. 266 (1988); Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 2010). 28 . 1 I. BACKGROUND 2 Petitioner is serving a state prison sentence of twelve (12) years for his plea-based 3 conviction for corporal injury to a spouse and forcible rape entered by the Fresno County 4 Superior Court on March 18, 2019. (Doc. No. 1 at 1). Petitioner’s conviction and sentence were 5 affirmed after appeal by the California Court of Appeal, Fifth Appellate District, on June 1, 2020. 6 (Doc. No. 9-2). Petitioner then filed five post-conviction collateral challenges in the state courts, 7 all petitions for writ of habeas corpus, as follows:3 8 1. Fresno County Superior Court 9 Filed: August 12, 2020 10 Denied: October 13, 2020 11 2. Fresno County Superior Court 12 Filed: January 13, 2021 13 Denied: February 25, 2021 14 3. California Court of Appeal, Fifth Appellate District 15 Filed: March 31, 2021 16 Denied: June 17, 2021 17 4. California Court of Appeal, Fifth Appellate District 18 Filed: August 18, 2021 19 Denied: October 7, 2021 20 5. California Supreme Court 21 Filed: November 23, 2021 22 Denied: April 27, 2022 23 (Doc. Nos. 9-3 – 9-12). As noted, Petitioner constructively filed the instant Petition on June 7, 24 2022. (Doc. No. 1). Petitioner makes the following claims for relief: (1) his plea was not 25 knowing and voluntary because Petitioner was mentally incompetent at the time of his no contest 26 3 In his reply, Petitioner generally asserts that “none” of Respondent’s or Petitioner’s “calculations take 27 into account the prison mailbox rule or that the ‘date of filing’ is not necessarily the same date as the day the court received the petition.” (Doc. No. 11 at 4). Respondent states in the Motion to Dismiss that the 28 listed filing dates received the benefit of the mailbox rule. (Doc. No. 8 at 2 n.2). 1 plea; and (2) ineffective assistance of counsel in violation of the Sixth and Fourteenth 2 Amendment for allowing Petitioner to enter a no contest plea while mentally incompetent. (Id. at 3 5-7). 4 Respondent submits the Petition should be dismissed because it is untimely. (See 5 generally Doc. No. 8). In reply, Petitioner argues he is entitled to statutory tolling for the periods 6 during which he was seeking state habeas review; and, in the alternative, equitable tolling due to 7 the effect of Covid-19 causing a delay in the handling of inmate mail, the delay in the processing 8 of his habeas petitions by the state courts, and the impediments of Petitioner’s access to the law 9 library. (Doc. No. 11). 10 II. APPLICABLE LAW AND ANALYSIS 11 Under Rule 4, if a petition is not dismissed at screening, the judge “must order the 12 respondent to file an answer, motion, or other response” to the petition. R. Governing 2254 Cases 13 4. The Advisory Committee Notes to Rule 4 state that “the judge may want to authorize the 14 respondent to make a motion to dismiss based upon information furnished by respondent.” In 15 White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989), the Ninth Circuit held that a motion to 16 dismiss based on procedural default is proper in habeas proceedings. Since that time, the Ninth 17 Circuit has affirmed cases where habeas petitions were dismissed on a respondent’s motion to 18 dismiss for untimeliness. Orthel v. Yates, 795 F.3d 935, 938 (9th Cir. 2015) (affirming district 19 court’s grant of respondent’s motion to dismiss petition as untimely because petitioner “did not 20 establish an exceptional circumstance that would warrant equitable tolling”); Stancle v. Clay, 692 21 F.3d 948, 951 (9th Cir. 2012) (same); Velasquez v. Kirkland, 639 F.3d 964, 966 (9th Cir. 2011). 22 A. Petition Not Timely Filed Under AEDPA’s Statute of Limitations 23 Title 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act 24 of 1996, sets a one-year period of limitations to the filing of a habeas petition by a person in state 25 custody. This limitation period runs from the latest of: 26 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such 27 review; 28 (B) the date on which the impediment to filing an application 1 created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from 2 filing by such State action; 3 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly 4 recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 5 (D) the date on which the factual predicate of the claim or claims 6 presented could have been discovered through the exercise of due diligence. 7 28 U.S.C. § 2244(d)(1). For most habeas petitioners, the one-year clock starts to run on “the date 8 on which the judgment became final by the conclusion of direct review or the expiration of the 9 time for seeking such review.” 42 U.S.C. § 2244(d)(1)(A). Here, the Court of Appeal affirmed 10 Petitioner’s conviction on June 1, 2020. (Doc. No. 9-2). Petitioner did not file a petition for 11 review in the California Supreme Court. The last day Petitioner was permitted to file a petition 12 for review was 40 days after the Court of Appeal’s opinion was filed; and the limitations period 13 begins running the following day. See Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002), overruled 14 on other grounds by Pace v. DeGuglielmo, 544 U.S. 408 (2005). Direct review therefore 15 concluded on July 11, 2020, when the forty day period for seeking review expired. For the 16 purposes of § 2244(d)(1)(A), AEDPA’s one-year statute of limitations began running the next day 17 on July 13, 2020.4 Petitioner had until Tuesday, July 13, 2021 to file his federal habeas petition, 18 absent statutory or equitable tolling. See Patterson v. Stewart, 251 F.3d 1243, 1246-47 (9th Cir. 19 2001) (adopting anniversary method to calculate one-year statutory period). Petitioner filed his 20 federal petition on June 7, 2022. (Doc. No. 1). Thus, absent any applicable tolling, the instant 21 petition is barred by the statute of limitations. 22 1. Statutory Tolling 23 The federal statute of limitations tolls for the “time during which a properly filed 24 application for State post-conviction or other collateral review with respect to the pertinent 25 judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). An application for post-conviction or 26 other collateral review is “pending” in state court “as long as the ordinary state collateral review 27 4 Because July 12, 2020 was a Sunday, the Court starts AEDPA’s clock on the next business day, Monday, 28 July 13, 2020. 1 process is ‘in continuance’—i.e., ‘until the completion of' that process.’” Carey v. Saffold, 536 2 U.S. 214, 219 (2002) (citations omitted). “California’s collateral review system differs from that 3 of other States in that it does not require, technically speaking, appellate review of a lower court 4 determination.” Id. at 221. Instead, petitioners are required to file an original habeas petition and 5 a subsequent appeal in each level of court (superior, appellate, and supreme) within a 6 “reasonable” period. Id. at 221-22; Robinson v. Lewis, 9 Cal. 5th 883, 897 (2020) (“There are no 7 specific time limits for either filing the first [habeas] petition or filing subsequent petitions in a 8 higher court. Instead, California courts employ a reasonableness standard. The claim must 9 generally be presented without substantial delay.”). A petition is considered no longer “pending,” 10 and the petitioner is barred from AEDPA statutory tolling, if an unreasonable amount of time 11 elapsed between the filing of state court habeas petitions. Saffold, 536 U.S. at 221. 12 To determine whether a habeas claim was filed within a reasonable amount of time, 13 California courts consider three factors. Robinson, 9 Cal. 5th at 897. First, “a claim must be 14 presented without substantial delay.” Id. (emphasis in original). ‘“Substantial delay is measured 15 from the time the petitioner or his or her counsel knew, or reasonably should have known, of the 16 information offered in support of the claim and the legal basis for the claim.”’ Id. (quoting In re 17 Robbins, 18 Cal. 4th 770, 780 (1998)). Second, if a petition was filed with substantial delay, a 18 petition may yet be considered on the merits if the “petitioner can demonstrate good cause for the 19 delay.” Id. (emphasis in original). Third, a petition filed without good cause for substantial delay 20 will be considered if it falls under one of four narrow exceptions. Id. Only three of the four 21 exceptions are relevant to noncapital cases: (1) the “‘error of constitutional magnitude led to a 22 trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have 23 convicted the petitioner;’” (2) “‘the petitioner is actually innocent of the crime or crimes of which 24 he or she was convicted;’” and (3) “‘the petitioner was convicted or sentenced under an invalid 25 statute.’” In re Reno, 55 Cal. 4th 428, 460 (2012) (quoting Robbins, 18 Cal. 4th at 780). The 26 California Supreme Court has opined that a six-month gap delay would normally be “unduly 27 generous,” but adopted “a time period of 120 days as the safe harbor for gap delay” for the filing 28 of habeas petitions between state court levels. Robinson, 9 Cal. 5th at 901. “A new petition filed 1 in a higher court within 120 days of the lower court’s denial will never be considered untimely 2 due to gap delay.” Id. 3 For petitions filed in a “reasonable time,” a petitioner may count as “pending” the “days 4 between (1) the time the lower state court reached an adverse decision, and (2) the day he filed a 5 petition in the higher state court.” Evans v. Chaviz, 546 U.S. 189, 193 (2006). This Court “must 6 itself examine the delay in each case and determine what the state courts would have held in 7 respect to timeliness.” Id. at 198. 8 Here, AEDPA’s statute of limitations began running on Monday, July 13, 2020, upon the 9 conclusion of direct review per § 2244(d)(1)(A), and continued to run until Petitioner filed his 10 first state habeas petition on August 12, 2020. (See Doc. No. 9-3). “AEDPA’s statute of 11 limitations is not tolled from the time a final decision is issued on direct state appeal and the time 12 the first state collateral challenge is filed because there is no case ‘pending’ during that interval.” 13 Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Accordingly, 29 days elapsed on the 14 AEDPA clock between the conclusion of direct review and the filing of Petitioner’s first state 15 habeas petition. Because Petitioner’s first state habeas petition was “properly filed,” the statute of 16 limitations was tolled from its filing on August 12, 2020 (Doc. No. 9-3) until its denial on 17 October 13, 2020. (Doc. No. 9-4); See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (A state habeas 18 petition is “‘properly filed’ when its delivery and acceptance are in compliance with the 19 applicable laws and rules governing filings.”); Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). 20 After the superior court denied Petitioner’s first state habeas petition, Petitioner 21 “proceeded downward” by filing a second petition in the state superior court on January 13, 2021 22 that raised the same claims as those raised in his first petition. (Doc. No. 9-5). Statutory tolling is 23 not available for periods between petitions that do not seek relief in a progression from the state 24 superior court, appellate court, and supreme court. Nino, 183 F.3d 1003, 1006-07 (limitations 25 period “remains tolled during the intervals between the state court’s disposition of a state habeas 26 petition and the filing of the petition at the next state appellate level.”); Delhomme v. Ramirez, 27 340 F.3d 817, 821 n.3 (9th Cir. 2003) (“[T]he crucial issue for tolling purposes is whether the 28 petitioner has timely proceeded to the next appellate level, since the one year filing period is 1 tolled to allow the opportunity to complete one full round of review.”); Stockton v. Barnes, 2014 2 WL 5325422, at *6 (E.D. Cal. Oct. 17, 2014) (“Because petitioner did not proceed up the ladder 3 to the next higher court, such filing does not toll the limitations period.”). Here, Petitioner 4 consecutively sought habeas relief twice in the state superior court. As noted by Respondent, the 5 superior court cited to In re Clark, 5 Cal. 4th 750 (1993) and declined to reconsider Petitioner’s 6 claims that were already raised and rejected in his prior petition. (Doc. No. 12 at 3; Doc. No. 9-6 7 at 2). “For tolling to be applied based on a second round, the petition cannot be untimely or an 8 improper successive petition.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). For all of 9 these reasons, the second petition did not stop the AEDPA clock that commenced running again 10 on October 14, 2020 after the denial of Petitioner’s first petition. 11 Petitioner’s third state habeas petition was filed in the court of appeal on March 31, 2021 12 and denied on June 17, 2021. (Doc. Nos. 9-7, 9-8). Respondent argues that Petitioner gains no 13 tolling from his third state habeas petition. (Doc. No. 8 at 5). First, because the second superior 14 court habeas petition was not properly filed, as discussed supra, it is as if the second petition 15 never existed. See Lakey v. Hickman, 633 F.3d 782, 785-86 (9th Cir. 2011). Consequently, only 16 if the Court determines that the168-day delay between the denial of the first state petition by the 17 superior court (October 13, 2020) and the filing of the third petition in the court of appeal (March 18 31, 2021) was “reasonable” is Petitioner entitled to statutory tolling. Robinson, 9 Cal. at 901. 19 Turning to the three Robinson factors, the Court must first ask whether the petition was 20 presented without “substantial delay.” Robinson, 9 Cal.5th at 897. A 168-day delay is 21 considerably longer than the 120-day period of California’s safe harbor. Id. Courts have 22 consistently found a delay of this length is substantial. See Walker v. Brazelton, 2021 WL 23 3401291, at *1 (E.D. Cal. Aug. 4, 2021) (refusing to reconsider whether petitioner was entitled to 24 gap tolling under Robinson because he waited over five months to file second habeas petition 25 after denial of first); Clarke v. Matteson, 2021 WL 6693711, at *5 (C.D. Cal. Sept. 8, 2021) 26 (petitioner not entitled to gap tolling under Robinson when he waited 191 days to file petition 27 after prior denial because nothing suggested “gap was reasonable or justified”), report and 28 recommendation adopted by 2022 WL 228151 (C.D. Cal. Jan. 25, 2022); Manley v. Davey, 2021 1 WL 1102724, at *8 (E.D. Cal. Mar. 23, 2021) (petition untimely, and therefore not properly filed, 2 when petitioner waited “nearly five months” before filing the second action), report and 3 recommendation adopted by 2021 WL 2805645 (E.D. Cal. July 6, 2021). Thus, the Court finds 4 the delay substantial and not reasonable under state law. 5 The Court now turns to the other two factors.5 Under the second factor, where a petition 6 was filed with substantial delay, a petition may yet be considered on the merits if the “petitioner 7 can demonstrate good cause for the delay.” Id. (emphasis in original). Here, Petitioner argues 8 that there was no 168-delay because the superior court did not deny his first petition on its merits; 9 rather, the superior court 10 rejected the petition because petitioner did not attach the standard pro. per. form to the front of his petition for writ of habeas corpus. 11 (Note: It took the Superior Court clerk 62 days to reject this initial writ petition.) Petitioner re-filed the exact same petition, adding 12 only the standard pro. per. form to the front, on January 13, 2021 and it was denied on February 25, 2021 (43 days). Petitioner filed 13 his writ petition in the [Fifth] District Court of Appeal on March 31, 2021 – 34 days after the Superior Court denied his petition on 14 the merits. Thus, of the 168-day delay between the Superior Court’s denial of the first petition and the filing in the Court of Appeal, 105 15 of those days are attributable to the Superior Court and not petitioner. As such, petitioner only used 63 days of the 120-day 16 safe harbor permitted in Robinson v. Lewis . . ., and therefore, his petition in the Court of Appeal was timely within the meaning of 28 17 U.S.C. § 2244(d)(2). 18 (Doc. No. 11 at 2). This argument is unavailing. First, as noted by Respondent, the superior 19 court denied Petitioner’s first state petition on the merits in a four-page reasoned decision. (Doc. 20 No. 12 at 2; Doc. No. 9-4). The superior court denied Petitioner’s first claim because it had 21 already been raised and rejected by the appellate court on direct review; and the court rejected his 22 second claim because Petitioner failed to demonstrate he was mentally incompetent at the time he 23 entered his plea, or that counsel’s performance fell below an objective standard of reasonableness 24 or was prejudicial. (Id.). Second, Petitioner also fails to present any evidence that he was curing 25 an alleged deficiency in the first petition by filing his second petition. (See generally Doc. No. 26 11). Third, as discussed above, in the order denying Petitioner’s second petition, the superior 27 5 The Court independently addresses the second and third Robinson factors because the Respondent fails to 28 address either of these factors in its Motion. (See Doc. No. 8 at 5-6). 1 court noted that Petitioner filed a previous petition for writ of habeas corpus raising identical 2 claims, and declined to reconsider Petitioner’s claims that were already raised and rejected in his 3 prior petition. (Doc. No. 9-6). Finally, even considering the reasons asserted by Plaintiff that he 4 is entitled to equitable tolling, discussed infra, Plaintiff has not demonstrated good cause for the 5 delay. 6 Third, a petition filed without good cause for substantial delay will be considered if it falls 7 under one of four narrow exceptions. Id. Only three of the four exceptions are relevant to 8 noncapital cases: (1) the “‘error of constitutional magnitude led to a trial that was so 9 fundamentally unfair that absent the error no reasonable judge or jury would have convicted the 10 petitioner;’” (2) “‘the petitioner is actually innocent of the crime or crimes of which he or she was 11 convicted;’” and (3) “‘the petitioner was convicted or sentenced under an invalid statute.’” In re 12 Reno, 55 Cal. 4th 428, 460 (Cal. 2012) (quoting Robbins, 18 Cal. 4th at 780). Petitioner has not 13 presented any evidence of a constitutional error leading to a fundamentally unfair trial, or that he 14 is actually innocent of his crime of conviction, or that he was convicted under an invalid statute. 15 Indeed, Petitioner entered a no contest plea to the charges. (Doc. No. 1 at 1). Therefore, the 16 untimely third petition was not “properly filed” under state law for purposes of § 2244(d)(2). 17 Because the third petition was untimely under state law “none of the time before or during the 18 court’s consideration of that petition is statutorily tolled.” Bonner v. Carey, 425 F.3d 1145, 1149 19 (9th Cir. 2005). 20 Petitioner filed a fourth petition on August 18, 2021, also in the court of appeal, asserting 21 identical claims as his previous petitions. (Doc. No. 9-9). This petition is similarly untimely, for 22 all the same reasons discussed; and in the alternative, the petition did not proceed to the next level 23 of review. See Pace, 544 U.S. at 414 (“When a postconviction petition is untimely under state 24 law, ‘that [is] the end of the matter’ for purposes of § 2244(d)(2).”); Delhomme, 340 F.3d at 821 25 n.3 (“[T]he crucial issue for tolling purposes is whether the petitioner has timely proceeded to the 26 next appellate level, since the one year filing period is tolled to allow the opportunity to complete 27 one full round of review.”). For both of these reasons, the fourth state habeas petition was not 28 properly filed, and therefore does not toll the statute of limitations. 1 In summary, giving Petitioner the benefit of 63 days of tolling for his first state habeas 2 petition and finding Petitioner is not entitled to any tolling for his second petition or third 3 petitions, the AEDPA clock commenced running again on October 14, 2020 and continued to run 4 for another 336 days until it expired on September 15, 2021.6 Consequently, Petitioner’s federal 5 petition, filed on June 7, 2022, was filed more than eight months after the AEDPA limitations 6 period expired. Therefore, the Petition must be dismissed as time barred unless Petitioner can 7 demonstrate that he is entitled to equitable tolling. 8 2. Equitable Tolling 9 AEDPA’s statutory limitations period may be equitably tolled. Holland v. Florida, 560 10 U.S. 631, 645 (2010). Equitable tolling is available if a petitioner shows: “(1) that he has been 11 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and 12 prevented timely filing.” Id. at 649. To show “extraordinary circumstances,” a petitioner must 13 show that “the circumstances that caused his delay are both extraordinary and beyond his 14 control”—a high threshold. Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. 15 250, 255 (2016). “The requirement that extraordinary circumstances ‘stood in [a petitioner’s] 16 way’ suggests that an external force must cause the untimeliness.” Waldron-Ramsey v. Pacholke, 17 556 F.3d 1008, 1011 (9th Cir. 2009) (emphasis added). Furthermore, a petitioner must show that 18 the extraordinary circumstances caused the untimely filing of his habeas petition. See Bills v. 19 Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citing Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 20 2003) (explaining that equitable tolling is available only when the extraordinary circumstances 21 were the cause of the petitioner’s untimeliness); Smith v. Davis, 953 F.3d 582, 595 (9th Cir. 2020) 22 (“Whether an impediment caused by extraordinary circumstances prevented timely filing is a 23 ‘causation question.’”). 24 25 6 At the time Petitioner filed his fifth petition in state supreme court on November 23, 2021 (Doc. No. 9- 11), the limitations period had expired. The filing of a state habeas petition after the limitations period 26 expired cannot revive the statute of limitations, and has no tolling effect. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (where petitioner filed his 27 state post-conviction relief petition after AEDPA statute of limitations period expired, delay results in absolute time bar). Thus, the petition filed in the California Supreme Court had no tolling effect on the 28 limitations period. 1 To demonstrate that he has been pursuing his rights diligently, a petitioner must show that 2 he has “been reasonably diligent in pursuing his rights not only while an impediment to filing 3 caused by an extraordinary circumstance existed, but before and after as well, up to the time of 4 filing his claim in federal court.” Smith, 953 F.3d at 598-99. In other words, “when [a petitioner] 5 is free from the extraordinary circumstance, he must also be diligent in actively pursuing his 6 rights.” Id. at 599. The diligence required for equitable tolling does not have to be maximum 7 feasible diligence, but rather reasonable diligence. Holland, 560 U.S. at 653. And the court is not 8 to impose a rigid impossibility standard on petitioners, especially pro se prisoner litigants “who 9 have already faced an unusual obstacle beyond their control during the AEDPA litigation period.” 10 Fue v. Biter, 842 F.3d 650, 657 (9th Cir. 2016) (quoting Sossa v. Diaz, 729 F.3d 1225, 1236 (9th 11 Cir. 2013)). However, “in every instance reasonable diligence seemingly requires the petitioner 12 to work on his petition with some regularity—as permitted by his circumstances—until he files it 13 in the district court.” Smith, 953 F.3d at 601. Because Petitioner must show diligence before, 14 during, and after those extraordinary circumstances that prevented him from filing, the relevant 15 time period of the court’s analysis is July 13, 2020, the day the statute of limitations began to run, 16 to June 7, 2022, the day Petitioner signed and constructively filed his federal petition. See Smith, 17 953 F.3d at 598-99. Admittedly, “the threshold necessary to trigger equitable tolling under 18 AEDPA is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1062, 19 1066 (9th Cir. 2002) (citations omitted). 20 Petitioner argues he is entitled to equitable tolling because any “perceived delay” in filing 21 his state petitions was due to (1) “the effect Covid-19 had on the various courts as well as the 22 California Department of Corrections handling of inmate mail”; and (2) lack of access to the law 23 library during the first year of COVID-19. (Doc. No. 11 at 3-5). Respondent argues that 24 Petitioner has not met his burden to demonstrate he is eligible for equitable tolling. (Doc. No. 12 25 at 5-7). 26 First, Petitioner generally claims that habeas petitions and inmate mail were not “a priority 27 during the pandemic,” which, according to Petitioner explains why it took the superior court two 28 months to issue a decision on his first habeas petition. (Doc. No. 11 at 3-4). Petitioner also 1 contends that at the time he filed his first petition court personnel were working from home, 2 which explains the time frame in considering his first petition. (Id. at 5). Essentially Petitioner 3 argues equitable tolling should apply because he exercised all due diligence in pursuing his rights, 4 and any delay was the result of circumstances beyond petitioner’s control. (Id.). As argued by 5 Respondent, Petitioner “makes assertions regarding the state courts’ handling of his habeas 6 actions based on pure assumptions” and does not offer any evidence that staff was working 7 remotely or whether there was any undue delay in processing habeas petitions during the COVID- 8 19 pandemic. (Doc. No. 12 at 6). Conclusory allegations about delays and difficulties will not 9 toll the statute of limitations. See Dragasits v. Covello, 2022 WL 207730, at *7 (S.D. Cal. Jan. 10 24, 2022) (noting petitioner seeking equitable tolling due to the COVID-19 pandemic “must still 11 demonstrate fact-specific circumstances related to the pandemic that hindered his ability to timely 12 file a habeas petition”); Dones v. Allison, 2022 WL 17979758, at *5 (S.D. Cal. Dec. 28, 2022) 13 (refusing equitable tolling based on pandemic where petitioner did not explain how the lack of 14 access to the library, phone calls, and standard mail impeded his ability to timely file his petition). 15 Moreover, as to any alleged inmate mail “delays,” Petitioner has received the benefit of 16 the mailbox rule in assessing timeliness and all calculations are based on the date Petitioner 17 signed the petitions or the proof of service date. Finally, an independent review of the processing 18 of Petitioner’s state petitions does not support Petitioner’s general argument that the mail and/or 19 processing of his state petitions were unduly delayed. For example, Petitioner’s first state petition 20 was signed on August 12, 2020, postmarked by prison officials on August 14, 2020, file stamped 21 by the court on August 17, 2020, and a decision issued on October 13, 2020. (Doc. Nos. 9-3, 9- 22 4). Petitioner’s second state petition was signed on January 13, 2021, postmarked by prison 23 officials on January 14, 2021, file-stamped by the court on January 15, 2021, and a decision 24 issued on February 25, 2021. (Doc. Nos. 9-5, 9-6). Petitioner fails to demonstrate how COVID- 25 19-related delays in the processing of mail and the processing of his habeas petitions in the state 26 court system prevented him from timely filing his federal petition. 27 Second, Petitioner offers a single sentence argument that he is entitled to equitable tolling 28 because “it was also difficult to gain access to the law library during the first year of Covid.” 1 (Doc. No. 11 at 4). In general, unpredictable lockdowns or library closures do not constitute 2 extraordinary circumstances warranting equitable tolling. See United States v. Van Poyck, 980 F. 3 Supp. 1108, 1111 (C.D. Cal. 1997) (inability to secure copies of transcripts from court reporters 4 and lockdowns at prison lasting several days and allegedly eliminating access to law library were 5 not extraordinary circumstances and did not equitably toll one-year statute of limitations); Galaz 6 v. Harrison, 2006 WL 768813, at *5 (E.D. Cal. Mar. 27, 2006). Moreover, “[c]ourts have found 7 that general claims of lack of access to the prison law library due to restrictions resulting from 8 COVID-19 are not ‘extraordinary circumstances” justifying equitable tolling. Instead, a 9 petitioner must allege specific facts showing how such COVID-19-related lockdowns ‘actually 10 prevented’ the petition from timely filing a petition.” Davis v. Kibler, 2022 WL 2121907, at *6 11 (C.D. Cal. Feb. 24, 2022) (citing Dragasits, 2022 WL 207730, at *8 (collecting cases)). 12 Here, as above, Petitioner provides no evidence showing how or when his access to the 13 law library was restricted or how any such restrictions affected his ability to timely file his federal 14 Petition. Moreover, he fails to explain how circumstances differed on August 12, 2020, January 15 13, 2021, March 31, 2021, August 18, 2021, November 23, 2021, and June 7, 2022, “when 16 respectively, he filed his five state petitions and his federal petition and how he could not use the 17 same means to sooner and properly exhaust his state remedies and file his federal petition.” (Doc. 18 No. 12 at 7). In other words, even assuming, arguendo, that Petitioner had shown that his access 19 to the law library was limited, which he has not, he alleges no facts showing that the access he 20 had was not sufficient. See Lara v. McDowell, 2021 WL 2805644, at *7 (E.D. Cal. July 6, 2021) 21 (noting that despite COVID-19 protocols instituted at the prison, petitioner managed to file four 22 state habeas petitions and a federal petition during the pandemic, and concluding that petitioner 23 was not entitled to equitable tolling because he did not demonstrate how his lack of access to the 24 law library prevented him from timely filing his petition). 25 The undersigned finds Petitioner fails to carry his burden of demonstrating extraordinary 26 circumstances that caused the untimely filing of his Petition. Consequently, because the 27 undersigned recommends Petitioner be denied equitable tolling, the undersigned recommends the 28 Petition be dismissed as untimely. 1 III. CERTIFICATE OF APPEALABILITY 2 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 3 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 4 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 5 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a 6 certificate of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 7 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court 8 denies habeas relief on procedural grounds without reaching the merits of the underlying 9 constitutional claims, the court should issue a certificate of appealability only “if jurists of reason 10 would find it debatable whether the petition states a valid claim of the denial of a constitutional 11 right and that jurists of reason would find it debatable whether the district court was correct in its 12 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 13 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 14 could not conclude either that the district court erred in dismissing the petition or that the 15 petitioner should be allowed to proceed further.” Id. Here, reasonable jurists would not find the 16 undersigned’s conclusion debatable or conclude that petitioner should proceed further. The 17 undersigned therefore recommends that a certificate of appealability not issue. 18 Accordingly, it is RECOMMENDED: 19 1. Respondent’s Motion to Dismiss (Doc. No. 8) be GRANTED. 20 2. The Petition (Doc No. 1) be dismissed as untimely. 21 3. Petitioner be denied a certificate of appealability. 22 //// 23 //// 24 //// 25 NOTICE TO PARTIES 26 These findings and recommendations will be submitted to the United States district judge 27 assigned to the case, pursuant to the provisions of U.S.C. § 636(b)(1). Within fourteen (14) days 28 after being served with these findings and recommendations, a party may file written objections 1 | with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 2 | Recommendations.” Parties are advised that failure to file objections within the specified time may 3 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 4 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 ° | Dated: _ March 6, 2023 Mile. Th. Doareh Hack 7 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15