Blanco v. Johnson ( 2021 )

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Norman P. BLANCO, Case No. 3:20-cv-1088-WQH-AGS 4 Petitioner, REPORT AND RECOMMENDATION 5 v. TO GRANT RESPONDENT’S MOTION TO DISMISS (ECF 7) 6 Raybon JOHNSON, Warden, 7 Respondent. 8 9 Petitioner’s deadline for seeking federal habeas was June 8, 2011. He instead waited 10 until 2020 to file a habeas petition, nine years late. Because neither statutory nor equitable 11 tolling excuses this untimeliness, his petition should be dismissed. 12 BACKGROUND 13 After Norman Blanco appealed his convictions for assault with a firearm and other 14 crimes, the California Supreme Court denied review on March 10, 2010. (ECF 8-3, at 1.) 15 A decade later, Blanco filed a state habeas petition, which the California Court of Appeal 16 rejected as untimely. (ECF 8-4, at 2.) On June 15, 2020, Blanco submitted the present 17 request for federal habeas relief on the same grounds. (ECF 1, at 16.) Respondent now 18 moves to dismiss this federal petition as untimely. (ECF 7-1, at 6.) 19 DISCUSSION 20 A person in state custody must file a petition for federal habeas within one year from 21 the “date on which the judgment became final by the conclusion of direct review or the 22 expiration of the time for seeking such review.” 28 U.S.C. § 2244(d). But a “petition can 23 also be timely, even if filed after the one-year period has expired, when statutory or 24 equitable tolling applies.” Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002) (citation 25 omitted). 26 The California Supreme Court denied review here on March 10, 2010. (ECF 8-3, 27 at 1.) Blanco did not seek certiorari, so the judgment became final when the “ninety-day 28 certiorari period” lapsed on June 8, 2010. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1 1999) (citation omitted). The federal habeas statute of limitations expired one year later, 2 on June 8, 2011. See 28 U.S.C. § 2244(d). Because Blanco’s federal habeas petition was 3 filed June 15, 2020―more than nine years after the deadline―it is late unless either 4 statutory or equitable tolling applies. (See ECF 1.) 5 A. Statutory Tolling 6 The one-year limitation is tolled when a petitioner has “a properly filed application 7 for State post-conviction or other collateral review” until the California Supreme Court 8 rejects the final collateral attack. See 28 U.S.C. § 2244(d)(2); see also Roy v. Lampert, 9 465 F.3d 964, 968 (9th Cir. 2006). While pursuing a state post-conviction petition, the one- 10 year limitation is not reset but merely paused. See, e.g., Bunn v. Warden Salinas Valley St. 11 Prison, No. C 09-0251 PJH (PR), 2013 WL 5692930, at *1 (N.D. Cal. Oct. 15, 2013). 12 When the one-year statute of limitations expired here in June 2011, Blanco had not 13 yet filed a state post-conviction relief petition. “Section 2244(d)(2) cannot ‘revive’ the 14 limitation period once it has run (i.e., restart the clock to zero); it can only serve to pause a 15 clock that has not yet fully run.” Smith v. Davis, No. C 14-3122 RS (PR), 2015 WL 16 5029336, at *2 (N.D. Cal. Aug. 25, 2015). Blanco’s state post-conviction relief petition, 17 first filed in February 2020, did not restart the clock when it was denied the next month. 18 And there’s a second problem with Blanco’s statutory tolling argument: His state 19 post-conviction petition was not “properly filed” for statutory-tolling purposes. See Allen v. 20 Siebert, 552 U.S. 3, 6 (2007). Because Blanco filed his state habeas petition “more than 13 21 years after he was initially sentenced and more than 11 years after he was resentenced with 22 no explanation for the delay,” the California Court of Appeal barred the petition as 23 untimely under California law. (ECF 8-4, at 2.) A “state postconviction petition is . . . not 24 ‘properly filed’ if it was rejected by the state court as untimely.” Allen, 552 U.S. at 6 25 (citation omitted); see also Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a 26 postconviction petition is untimely under state law, that is the end of the matter for purposes 27 of § 2244(d)(2).” (quotation marks omitted)). So, for both reasons, statutory tolling is 28 unavailable here. 1 B. Equitable Tolling 2 Blanco also does not benefit from equitable tolling, which is a judge-made exception 3 to the statute of limitations for exceptional circumstances. See Holland v. Florida, 560 U.S. 4 631, 645-49 (2010). Under Holland, a petitioner would qualify for equitable tolling if “he 5 shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary 6 circumstance stood in his way and prevented timely filing.” Id. at 649 (quotation marks 7 and citation omitted). A non-exhaustive list of extraordinary circumstances includes: 8 “egregious” attorney negligence, see Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003); 9 “actual innocence,” see McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); denial of “access 10 to . . . legal files” while imprisoned, see Espinoza-Matthews v. California, 432 F.3d 1021, 11 1027-28 (9th Cir. 2005); relying on prior statutory requirements during case pendency, see 12 Nedds v. Calderon, 678 F.3d 777, 784 (9th Cir. 2012); or some other high obstacle not 13 brought about by petitioner’s own actions. See Spitsyn, 345 F.3d at 799. The petitioner 14 “bears the burden of showing that equitable tolling is appropriate.” Espinoza-Matthews, 15 432 F.3d at 1026 (citation omitted). 16 Blanco presents no extraordinary circumstances beyond his control that prevented 17 him from filing a habeas petition within the one-year limitation. His response to 18 defendant’s motion to dismiss only reiterates the arguments in his petition without 19 addressing timeliness. (See generally ECF 9.) Waiting nine years to pursue both state and 20 federal habeas relief cannot qualify as a diligent pursuit of Blanco’s habeas right. So, 21 equitable tolling is unavailable. 22 Because Blanco’s late petition cannot be saved by any tolling, the Court 23 recommends dismissing it with prejudice as “the untimeliness can never be rectified.” See 24 Bautista v. Hatton, No. LACV1606632VBFKK, 2016 WL 6137405, at *5 (C.D. Cal. 25 Oct. 19, 2016). 26 C. Certificate of Appealability 27 A district court must “issue or deny a certificate of appealability when it enters a 28 final order adverse to the [habeas] applicant.” Rule 11(a), Rules Governing § 2254 Cases, 1 U.S.C. foll. § 2254 (2020). A certificate of appealability is authorized “only if the 2 || applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 3 || § 2253(c)(2). To meet this threshold, “a petitioner must show that reasonable jurists could 4 ||debate whether the petition should have been resolved in a different manner or that the 5 ||issues presented were adequate to deserve encouragement to proceed further.” Harris v. 6 || Kernan, No. 18CV274-MMA (RBM), 2019 WL 527426, at *1 (S.D. Cal. Feb. 11, 2019) 7 || (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). 8 As a dismissal with prejudice constitutes a “final order adverse to the applicant,” the 9 ||Court must consider whether to grant petitioner a certificate of appealability. Because 10 Blanco filed his habeas petition over nine years late and no tolling applies, the Court 11 |}concludes that no “reasonable jurists could debate whether the petition should have been 12 ||resolved in a different manner.” See Harris, 2019 WL 527426, at *1. So, the Court 13 recommends denying a certificate of appealability. 14 CONCLUSION 15 The Court recommends that the following orders be entered: 16 1. Respondent’s motion to dismiss the habeas petition is GRANTED. 17 2. Blanco’s petition is DISMISSED with prejudice. 18 3. The Court DECLINES to issue a certificate of appealability. 19 Within 14 days of service of this report, the parties must file any objections to it. See 20 U.S.C. § 636(b)(1). The party receiving such an objection has 14 days to file any 21 ||response. Fed. R. Civ. P. 72(b)(2). 22 ||Dated: May 19, 2021 23 Hon. ndrew G. Schopler United States Magistrate Judge 25 26 27 28