Ontiveros v. Subia

ED ONTIVEROS, Petitioner, v. R.J. SUBIA, Warden, Respondent.

No. 2:07-cv-1441 JAM DAD P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

December 9, 2014

ORDER

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are the parties' supplemental briefs purportedly addressing the issue of equitable tolling of the applicable statute of limitations under the facts of this case.

For the reasons set forth below, the undersigned will provide petitioner's counsel one final opportunity to proffer evidence or explain what would be presented by petitioner at an evidentiary hearing that would entitle him to equitable tolling of the applicable statute of limitations.

BACKGROUND

This case has a lengthy procedural history. On June 13, 2008, the undersigned issued findings and recommendations recommending that petitioner's petition for writ of habeas corpus be dismissed as time-barred. (Doc. No. 14.) On October 2, 2008, those findings and recommendations were adopted in full. (Doc. No. 16.) Petitioner appealed and counsel wasappointed for petitioner on appeal. (Doc. No. 25.) On January 28, 2010, the Ninth Circuit Court of Appeals issued a memorandum affirming the judgment. (Doc. No. 26.) However, on February 18, 2010, the Ninth Circuit issued a superseding opinion affirming in part, reversing in part, and remanding the case back to this court "for factual development" with regards to petitioner's equitable tolling claim. See Ontiveros v. Subia, 365 Fed. Appx. 848, 851 (9th Cir. Feb. 18, 2010) (Doc. No. 27.). Specifically, the Ninth Circuit stated the following with respect to petitioner's claim of entitlement to equitable tolling, which he had brought on his own behalf:

To qualify for equitable tolling, a litigant "bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 161 L.Ed.2d 669 (2005). The district court found that Ontiveros was not entitled to equitable tolling because he "waited almost a year before filing his first state habeas petition." This restates the known fact that Ontiveros filed late, but does not properly determine whether he pursued his rights diligently. The district court failed to investigate whether Ontiveros diligently attempted to file his state petition.

The district court also found that Ontiveros had not demonstrated that extraordinary circumstances prevented him from timely filing. The court cites case law holding that a lack of legal sophistication or temporary delays in prison law library access are not, by themselves, grounds for equitable tolling. However, the district court did not address Ontiveros' s claim that his documented learning disability caused his late filing. We have previously held that " 'mental incompetency justifies equitable tolling' of the AEDPA statute of limitations." Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003) (citing Calderon v. U.S. Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc), overruled in part by Woodford v. Garceau, 538 U.S. 202, 206, 123 S. Ct. 1398, 155 L.Ed.2d 363 (2003)). The district court also failed to determine the extent to which the prison lock-down precluded Ontiveros's access to the law library or to his legal files.

We therefore reverse the district court's dismissal of the petition and remand for factual development, including an evidentiary hearing, with regard to Ontiveros's equitable tolling claim. See Laws, 351 F.3d at 923-925. If the district court determines that equitable tolling is warranted, it should proceed to the merits. Otherwise, it should dismiss the petition as untimely.

Id. at 850-51.

On remand the court first addressed respondent's motion to dismiss to the extent it was based on petitioner's alleged failure to exhaust his claims in state court, since that argument hadnot been addressed earlier in light of the conclusion that the petition was time barred. The motion to dismiss for failure to exhaust was eventually denied. (Dkt. Nos. 45 and 46.) However, petitioner's claims I, III and IV were subsequently summarily dismissed because the court concluded that they failed to state cognizable claims for federal habeas relief. (Doc. Nos. 47 and 60.) With respect to petitioner's lone remaining claim the court specifically ordered petitioner to file a supplemental brief, "along with any additional evidence or proffer in support of his argument for equitable tolling" and provided time for a response and a reply. (Doc. No. 47 at 11) (emphasis added). Both parties have now filed their supplemental briefs.

THE PARTIES' ARGUMENTS

It appears that petitioner's counsel may have misapprehended both the nature of the Ninth Circuit remand and the directive set forth in the undersigned's order. Petitioner's opening supplemental brief is a little over three pages in length, is composed solely of legal argument¹, proffers nor suggests any evidence that would be presented at an evidentiary hearing in support of a claim of entitlement to an evidentiary hearing and, nonetheless, concludes with a request for an evidentiary hearing.

In response, counsel for respondent accurately argues that petitioner has failed to offer evidence that he did not understand the need to file his federal habeas petition in a timely manner and, in fact, that petitioner demonstrated he was capable of filing court petitions in other proceedings during the relevant time-frames at issue here. Counsel for respondent also argues that the periodic lock-downs at his place of confinement about which petitioner complains were brief and that petitioner's access to the law library largely remained on "normal" status throughout the relevant time period. (Resp't's Supp. Brief at 1-7 & Exs. 1-20.)

In reply, petitioner's counsel contends that back on July 18, 2000, a psychologist at Mule Creek State Prison ("MCSP") determined that there was a reasonable possibility that petitioner suffers from a significant learning disability and exempted him from taking any written tests for atrade at the prison. Since then, according to petitioner's counsel, other prison officials have also recognized petitioner's learning disability. (Pet'r's Reply Exs. B-D.) Petitioner's counsel has also presented the declaration of an inmate who states that he assisted petitioner in the preparation of his legal documents, that this other inmate's law library access was limited or reduced during the period of November 2004 through October 2005 and that his personal opinion is that petitioner has difficulty with the English language and is not able to prepare legal brief on his own. (Pet'r's Reply Exs. A.) In his conclusion, however, petitioner's counsel "respectfully requests this Court set an evidentiary hearing to determine whether the 2004 Panel violated Mr. Ontiveros' right to due process and his liberty interest in parole when the Board overruled his objection to the make-up of the members of the Board." (Pet'r's Reply (Doc. No. 56) at 4.)

Of course, counsel's request for evidentiary hearing in his reply goes directly to the merits of petitioner's only remaining claim in this federal habeas action. Obviously, that is not what the Ninth Circuit remanded for factual development. The only issue which was subject to remand for potential factual development was the question of whether petitioner could establish that he was entitled to equitable tolling of the applicable statute of limitations. If not, this court was directed to "dismiss the petition as untimely." 365 Fed. Appx. at 851. On that issue petitioner's counsel has presented very little other than further argument. Nonetheless, in light of the remand order the undersigned is reluctant to recommend dismissal of the petition based on untimeliness without providing petitioner's counsel a final opportunity to present or proffer evidence and witnesses he would present at an evidentiary hearing that would establish that petitioner is entitled to equitable tolling of the AEDPA statute of limitations under the facts of his case.

Below, the court will provide counsel with direction in determining whether such additional evidence exists or whether he wishes to submit the issue for decision on the present record.

I. Application of §§ 2244(d)(1)(D) & 2244(d)(2)

Petitioner's sole remaining claim in this federal habeas action is that the California Board of Parole Hearings was biased against him when it found him unsuitable for parole. (Pet. at 5.) The parties do not dispute that the AEDPA statute of limitations began to run on November 26,2004, and expired one year later on November 25, 2005. The parties also do not dispute that the statute of limitations ran for 329 days from November 26, 2004, to October 21, 2005 (the "2005 period"), when the clock stopped, and the statute of limitations for the filing of petitioner's federal habeas petition was statutorily tolled until February 7, 2007. The statute of limitations began to run again on February 8, 2007, and expired 36 days later on March 16, 2007. Petitioner did not file his federal petition until July 7, 2007 (the "2007 period"). Because more than one year had run on the governing statute of limitations, 478 days to be exact, petitioner's federal habeas petition is time-barred, unless he is entitled to equitable tolling.

II. Equitable Tolling Standards

The United States Supreme Court has confirmed that the AEDPA statute of limitations "is subject to equitable tolling in appropriate cases." Holland v. Florida, 530 U.S. 631, 645 (2010). See also Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011); Lakey v. Hickman, 633 F.3d 782, 784 (9th Cir.), cert. denied ___ U.S. ___, 131 S. Ct. 3039 (2011); Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010).² "[A] 'petitioner' is 'entitled to equitable tolling' only where he shows '(1) t...