Luis A. Herrera v. Secretary of Corrections

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 LUIS A. HERRERA, Case No. SA CV 17-01925 R (RAO) 12 Petitioner, 13 v. ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND 14 NEIL MCDOWELL, Warden, RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 15 Respondent. [16] 17 Pursuant to 28 U.S.C. § 636 , the Court has reviewed the Petition, all of the 18 records and files herein, and the Magistrate Judge’s Report and Recommendation 19 (“Report”). Further, the Court has made a de novo determination of those portions 20 of the Report to which objections have been made. While the Court accepts and 21 adopts the findings, conclusions, and recommendations of the Magistrate Judge, one 22 argument raised in Petitioner’s Objections warrants discussion. 23 Petitioner asserts for the first time that he is entitled to equitable tolling because 24 Spanish is his primary language, which limited his ability to navigate the 25 requirements under AEDPA. Objections (“Obj.”), Dkt. No. 24 at 2. 26 The Ninth Circuit has recognized that federal habeas petitioners who lack 27 English language ability, and are denied access to legal materials in their native 28 language and cannot procure the assistance of a translator during the running of the 1 AEDPA limitations period may be entitled to equitable tolling. Mendoza v. Carey, [2] 449 F.3d 1065, 1071 (9th Cir. 2006). However, a petitioner seeking equitable tolling 3 based on language barriers “must, at a minimum, demonstrate that during the running 4 of the AEDPA time limitation, he was unable, despite diligent efforts, to procure 5 either legal materials in his own language or translation assistance from an inmate, 6 library personnel, or other source. Id. at 1070 ; see also Diaz v. Kelly, 514 F.3d 149 , 7 154 (2d Cir. 2008) (“the diligence requirement of equitable tolling imposes on the 8 prisoner a substantial obligation to make all reasonable efforts to obtain assistance to 9 mitigate his language difficulty”). 10 In the Objections, Petitioner states that he is a Mexican-born citizen whose 11 primary language is Spanish. Obj. at 2. He is not proficient in the English language 12 and does not have the ability to read, write, or proficiently understand English. Id. at 13 2-3. The prison’s law library does not offer Spanish-language legal books, Spanish14 speaking clerks or librarians, or a computer system offering statutes and case-law 15 written in Spanish. Id. Petitioner was unable to retain the assistance of a post16 conviction habeas attorney due to lack of funds. Id. at 3. Petitioner “came across” 17 an incarcerated criminal law paralegal on August 21, 2017, who worked on 18 Petitioner’s federal habeas petition with him. Id. at 2, 4. The paralegal speaks only 19 English. Id. at 3. After August 21, 2017, “Petitioner showed due diligence moving 20 forward with his federal filing.” Id. at 4. 21 The Court concludes that Petitioner has failed to allege facts sufficient to 22 establish his diligence under Mendoza and is not entitled to an evidentiary hearing. 23 Petitioner does not describe any efforts to secure legal materials in Spanish or to 24 obtain translation help. See Jesus v. Long, No. ED CV 13-990 CJC (JCG), 2014 WL 25 117173, at *4 (C.D. Cal. Jan. 9, 2014) (rejecting equitable tolling and denying an 26 evidentiary hearing because the “record is devoid of any concrete evidence of 27 Petitioner’s efforts to obtain adequate Spanish language legal materials or translation 28 services during the limitations period” where petitioner asserted only that he was 1 || turned down from legal assistance at the library and he was afraid to seek the 2 || assistance of other inmates) (emphasis in original). Other than alleging that language 3 || barriers slowed down the communication between Petitioner and the paralegal, 4 || Petitioner does not otherwise show that it was his language barrier that prevented the 5 || timely filing of this action. Mendoza, 449 F.3d at 1068-70 . Further, as Respondent 6 || argues in its Response to the Objections, Petitioner does not even attempt to allege 7 || due diligence moving forward with his federal filing until August 21, 2017, which 8 || was approximately one month before the September 27, 2017 expiration of the 9 || limitations period. See Garcia vy. Yates, 422 F. App’x 584, 585 (9h Cir. 2011) 10 || (concluding petitioner was not entitled to equitable tolling due to the absence of 11 || Spanish language materials in the prison law library because he had not shown that 12 || “throughout the period for which tolling is sought, he was diligently pursuing ‘either 13 || legal materials in his own language or translation assistance from an inmate, library 14 || personnel, or other source.’”) (citing Mendoza, 449 F.3d at 1070 ); Diaz v. Campbell, 15 || 411 F. App’x 975, 976 (9th Cir. 2011) (finding petitioner failed to sufficiently 16 || “demonstrate that during the running of the AEDPA time limitations, he was unable, 17 || despite diligent efforts, to procure either legal materials in his own language or 18 || translation assistance from an inmate, library personnel, or other source’ which could 19 || constitute grounds for equitable tolling.”) (citing Mendoza, 449 F.3d at 1068-70 ). 20 Accordingly, the Court accepts and adopts the findings, conclusions, and 21 || recommendations of the Magistrate Judge. 22 IT IS ORDERED that the Petition is denied and Judgment shall be entered 23 || dismissing this action. [24] 25 || DATED: September 3, 2019 a “9 K Revere *° R.GARYKLAUSNER 27 UNITED STATES DISTRICT JUDGE