Christopher Ndiagu v. Patrick Covello

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 CHRISTOPHER NDIAGU, ) Case No. 2:19-cv-06074-JDE ) 12 Petitioner, ) ) MEMORANDUM OPINION AND 13 v. ) ) ORDER GRANTING MOTION TO ) DISMISS, IN PART, AND DISMISSING 14 MARCUS POLLARD, Acting ) PETITION ) 15 Warden, ) ) 16 Respondent. ) 17 I. 18 BACKGROUND 19 On July 4, 2019,1 Petitioner Christopher Ndiagu constructively filed a 20 pro se Petition for Writ of Habeas Corpus by a Person in State Custody with 21 supporting exhibits (“Petition” or “Pet.”) pursuant to 28 U.S.C. § 2254 . Dkt. 1. — 22 — 23 1 Under the “mailbox rule,” “a legal document is deemed filed on the date a petitioner delivers it to the prison authorities for filing by mail.” Lott v. Mueller, 304 24 F.3d 918, 921 (9th Cir. 2002). Here, the parties disagree regarding the applicable 25 “deemed filed” dates. Petitioner relies on the signature dates and proofs of service, while Respondent relies on the actual filing dates and/or prison legal mail logs. For — 26 — purposes of this Order, the Court affords Petitioner the benefit of the earlier signature 27 dates, unless otherwise noted. The Court uses the signature date on the envelope containing the Petition as the “filing” date of the Petition. — 28 — 1 As the Petition appeared untimely, on July 19, 2019, the Court issued an Order 2 to Show Cause why the action should not be dismissed as untimely. Dkt. 4 3 (“OSC”). Petitioner filed his response on August 16, 2019. Dkt. 7 (“Resp.”) 4 On August 20, 2019, the Court discharged the OSC, concluding that the 5 timeliness issue, should Respondent raise the issue, would be best resolved 6 with the consideration of the relevant state court records and relevant records 7 possessed by the California Department of Corrections and Rehabilitation. 8 Dkt. 8. The Court made no determination at that time regarding whether the 9 Petition was timely or whether Petitioner was entitled to tolling, and by 10 separate order, directed Respondent to respond to the Petition. 11 On September 19, 2019, Respondent filed a Motion to Dismiss on the 12 grounds that the Petition is untimely and four of Petitioner’s claims are 13 procedurally defaulted. Dkt. 12 (“Motion”). Petitioner filed his Opposition to 14 the Motion on October 11, 2019. Dkt. 15 (“Opp.”). Respondent filed a Reply 15 on November 25, 2019 (Dkt. 18, “Reply”), together with additional evidence. 16 The Court afforded Petitioner an opportunity to respond, and Petitioner filed a 17 Supplemental Opposition on December 18, 2019. Dkt. 21 (“Supp. Opp.”).2 On 18 the same date, Petitioner also filed a Motion to File New Evidence (Dkt. 22), 19 which the Court grants to the extent the evidence bears upon the issues and 20 evidence raised in Respondent’s Reply.3 21 The parties have consented to proceed before the undersigned Magistrate 22 Judge. For the reasons discussed below, the Motion is granted, in part, and the 23 Petition is denied as untimely and this action is dismissed with prejudice. — 24 — — 25 — 2 As such, Petitioner’s request to strike Respondent’s additional evidence is denied. — 26 — 3 Several of the new documents submitted by Petitioner, including a November 2019 — 27 — inquiry regarding why his legal mail was being opened, do not appear to bear on 28 whether the Petition was timely filed. 1 II. 2 PROCEDURAL HISTORY 3 On April 6, 2015, a Los Angeles County Superior Court jury found 4 Petitioner guilty of driving under the influence causing injury and driving with 5 .08 percent or greater blood alcohol level causing injury and found true seven 6 great bodily injury enhancements. Pet. at 2 (CM/ECF pagination is used 7 herein for references to the Petition); Respondent’s Notice of Lodging 8 (“Lodgment”) 1 at 2. In a bifurcated proceeding, the trial court found 9 Petitioner had two prior convictions for driving under the influence. On July 9, 10 2015, Petitioner was sentenced to fifteen years in state prison. Id. 11 Meanwhile, on July 3, 2015, Petitioner constructively filed a habeas 12 petition in the California Court of Appeal. Lodgment 3. That petition was 13 denied on July 30, 2015. Lodgment 4. On August 17, 2015, Petitioner filed 14 another habeas petition in the California Court of Appeal,4 which was denied 15 on September 30, 2015. Lodgments 5-6. 16 Petitioner also appealed his conviction and sentence to the California 17 Court of Appeal. In an unpublished decision issued on March 8, 2017, the 18 court of appeal affirmed the judgment. Pet. at 3; Lodgment 1. A Petition for 19 Review was denied on May 17, 2017. Pet. at 3; Lodgments 7-8. 20 Thereafter, Petitioner began another round of collateral challenges in the 21 state courts. On July 27, 2018, Petitioner constructively filed a habeas petition 22 in the Los Angeles County Superior Court. Lodgment 9; Resp., Exh. E 23 (attesting that Petitioner gave his habeas petition to his housing officer on July 24 27, 2018). That petition was denied on August 23, 2018. Lodgment 10. On 25 November 20, 2018, Petitioner constructively filed a habeas petition in the — 26 — — 27 — 4 The Court has used the filing date as the petition is unsigned and contains no proof 28 of service. 1 California Court of Appeal. Lodgment 11. That petition was denied on 2 December 20, 2018 on the grounds that the petition raised “issues that could 3 have been raised or were rejected on appeal, and [did] not state a prima facie 4 case entitling petitioner to relief. (See In re Clark (1993) 5 Cal.4th 750 , 7655 66.).” Lodgment 12. Petitioner then filed a habeas petition in the California 6 Supreme Court on February 15, 2019, which was denied without comment or 7 citation to authority on June 26, 2019. Lodgments 13-14. 8 III. 9 DISCUSSION 10 Because the Petition was filed after the effective date of the Antiterrorism 11 and Effective Death Penalty Act of 1996 (the “AEDPA”), it is subject to the 12 AEDPA’s one-year statute of limitations, as set forth at 28 U.S.C. § 2244 (d). 13 See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). Ordinarily, the 14 limitations period runs from the date on which the prisoner’s judgment of 15 conviction “became final by the conclusion of direct review or the expiration of 16 the time for seeking such review.” 28 U.S.C. § 2244 (d)(1)(A). Petitioner does 17 not appear to contend that he is entitled to a later trigger date under 28 U.S.C. 18 § 2244(d)(1)(B)-(D), and the Court finds no basis for applying a later trigger 19 date. As such, Section 2244(d)(1)(A) governs in this case. 20 As noted, the California Supreme Court denied Petitioner’s Petition for 21 Review on May 17, 2017. As such, Petitioner’s conviction became final 90 22 days later, on August 15, 2017, when the period in which to petition the 23 United States Supreme Court for a writ of certiorari expired. See Harris v. 24 Carter, 515 F.3d 1051 , 1053 n.1 (9th Cir. 2008); Bowen v. Roe, 188 F.3d 1157 , 25 1158-59 (9th Cir. 1999). 26 Absent tolling, the AEDPA’s one-year limitations period expired one 27 year later, on August 15, 2018. Petitioner did not constructively file the instant 28 Petition until July 4, 2019. Thus, absent tolling, the Petition is untimely. The 1 burden of demonstrating sufficient tolling, whether statutory or equitable, rests 2 with Petitioner. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); 3 Valdez v. Montgomery, 918 F.3d 687, 691 (9th Cir. 2019); Zepeda v. Walker, — 4 — 581 F.3d 1013, 1019 (9th Cir. 2009). As explained below, Petitioner has not 5 shown that he is entitled to sufficient tolling to render the Petition timely. 6 A. Statutory Tolling Does Not Render the Petition Timely 7 “A habeas petitioner is entitled to statutory tolling of AEDPA’s one-year 8 statute of limitations while a ‘properly filed application for State post9 conviction or other collateral review with respect to the pertinent judgment or 10 claim is pending.’” Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012) 11 (quoting 28 U.S.C. § 2244 (d)(2)). Statutory tolling does not extend to the time 12 between the date a judgment becomes final and the date the petitioner files his 13 first state collateral challenge because during that time there is no case 14 “pending.” See Cross v. Sisto, 676 F.3d 1172, 1179 (9th Cir. 2012). 15 “The United States Supreme Court has held that applications for state 16 post-conviction relief . . . will be deemed ‘pending’ for purposes of 28 U.S.C. 17 § 2244(d)(2), even during the intervals between the denial of a petition by one 18 court and the filing of a new petition at the next level . . . .” Stancle v. Clay, — 19 — 692 F.3d 948, 953 (9th Cir. 2012) (alternations in original) (citations omitted); 20 see also Carey v. Saffold, 536 U.S. 214, 219-21 (2002). However, such interval 21 or “gap” tolling is unavailable if the petitioner unreasonably delays in seeking 22 higher court review after a lower court petition is denied. See Saffold, 536 U.S. 23 at 225-26; see also Maxwell v. Roe, 628 F.3d 486, 495-96 (9th Cir. 2010) 24 (“AEDPA’s statute of limitations will be tolled, however, only if the prisoner 25 timely filed his subsequent petition in a higher state court.”). 26 Under California law, a habeas petition is timely if it is filed within a 27 “reasonable time.” Evans v. Chavis, 546 U.S. 189, 192 (2006) (quoting In re 28 Harris, 5 Cal. 4th 813 , 828 n.7 (1993) (as modified)). California, however, has 1 not provided guidance as to what constitutes a “reasonable time.” Maxwell, — 2 — 628 F.3d at 496 . The Supreme Court has held that, “[i]n the absence of (1) 3 clear direction or explanation from the California Supreme Court about the 4 meaning of the term ‘reasonable time’ in the present context, or (2) clear 5 indication that a particular request for appellate review was timely or 6 untimely,” a federal habeas court “must itself examine the delay in each case 7 and determine what the state courts would have held in respect to timeliness,” 8 i.e., “whether the filing of the request for state-court appellate review (in state 9 collateral review proceedings) was made within what California would 10 consider a ‘reasonable time.’” Chavis, 546 U.S. at 198 . Contrary to Petitioner’s 11 contention (Resp. at 6; Opp. at 9-10), the Court “cannot infer from a decision 12 on the merits, or a decision without explanation, that the California court 13 concluded that the petition was timely.” Banjo v. Ayers, 614 F.3d 964 , 968 14 (9th Cir. 2010); see also Chavis, 546 U.S. at 197 . 15 The Supreme Court in Chavis observed that most states provide a short 16 period – between 30 and 60 days – for an appeal to a higher court, a fact it 17 considered in determining whether a delay was “reasonable” for purposes of 18 statutory tolling. 546 U.S. at 201 . After the Supreme Court’s holding in 19 Chavis, the Ninth Circuit has concluded that delays longer than the 30-to-6020 day benchmark are not reasonable under California law, absent a showing of 21 good cause for the delay. See Valdez, 918 F.3d at 692 ; Stewart v. Cate, 757 22 F.3d 929 , 935-36 (9th Cir. 2014) (as amended). 23 Importantly, the court must examine the timing of each state habeas 24 petition independently. “[I]f a prisoner timely files his or her first state habeas 25 petition but does not timely file a second petition, then the prisoner is not 26 entitled to tolling for the period following the denial of the first petition.” 27 Valdez, 918 F.3d at 690 . — 28 — 1 Here, Petitioner filed five habeas petitions in the state courts: 2 1. July 3, 2015 habeas petition in the California Court of Appeal denied 3 on July 30, 2015 (Lodgments 3-4); 4 2. August 17, 2015 habeas petition in the California Court of Appeal 5 denied on September 30, 2015 (Lodgments 5-6); 6 3. July 27, 2018 habeas petition in the Los Angeles County Superior 7 Court denied on August 23, 2018 (Lodgments 9-10); 8 4. November 20, 2018 habeas petition in the California Court of Appeal 9 denied on December 20, 2018 (Lodgments 11-12); and 10 5. February 15, 2019 habeas petition in the California Supreme Court 11 denied on June 26, 2019 (Lodgments 13-14). 12 Because Petitioner’s first two habeas petitions were filed and denied 13 prior to the commencement of the limitations period, these petitions do not toll 14 the statute of limitations. Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008). 15 Petitioner constructively filed his third state habeas petition in the Los 16 Angeles County Superior Court on July 27, 2018 and it was denied on August 17 23, 2018. As that petition was filed within the AEDPA’s one-year limitations 18 period, Petitioner is entitled to statutory tolling for the 27 days in which it was 19 pending, extending the limitations period to September 11, 2018. 20 Petitioner is not entitled to tolling for the interval between the denial of 21 his third state habeas petition and the filing of the fourth habeas petition. 22 Petitioner constructively filed his fourth habeas petition in the California Court 23 of Appeal on November 20, 2018, 89 days after the third habeas petition was 24 denied. This delay is significantly longer than the 30-to-60-day benchmark and 25 thus, unreasonable. See, e.g., Robinson v. Lewis, 795 F.3d 926, 930 (9th Cir. 26 2015) (“We have held that delays of 115, 101, and 81 days make a petition 27 untimely unless the petitioner can show good cause.”); Velasquez v. Kirkland, — 28 — 639 F.3d 964, 967-68 (9th Cir. 2011) (rejecting statutory tolling for unjustified 1 delays of 91 and 81 days); Stancle, 692 F.3d at 956 (unexplained delay of 82 2 days unreasonable); Livermore v. Sandor, 487 Fed. App’x 342, 343-44 (9th 3 Cir. 2012) (finding 76-day delay unreasonable); Dixon v. Kernan, 2016 WL 4 7485662, at *4 (C.D. Cal. Dec. 5, 2016) (89-day delay unreasonable), report 5 and recommendation accepted by 2016 WL 7480258 (C.D. Cal. Dec. 29, 6 2016). 7 Furthermore, Petitioner has failed to provide an adequate explanation 8 for the delay to the California Court of Appeal. See Chaffer v. Prosper, 592 9 F.3d 1046, 1048 (9th Cir. 2010) (per curiam) (noting that California law 10 requires a habeas petitioner to provide an explanation and justification for any 11 filing delay). In his fourth habeas petition, Petitioner provided no justification 12 for his delay. Petitioner wrote, “No Delay,” in response to the question on the 13 form habeas petition asking him to explain any delay. Lodgment 11 at 6. 14 Consequently, from the perspective of the California Court of Appeal, the 8915 day delay was not adequately justified. See Chaffer, 592 F.3d at 1048 (finding 16 115-day and 101-day delays unreasonable where the petitioner’s state habeas 17 petitions failed to offer any justification for the delays). 18 Petitioner argues to this Court that the delay was the result of various 19 transfers and limited access to the law library. Petitioner attempts to justify his 20 delay are insufficient to excuse the lengthy gap between the third and fourth 21 habeas petitions. Petitioner claims that he was transferred to the A-yard at 22 Richard J. Donovan Correctional Facility (“RJD”) on October 18, 2018, and 23 did not receive his legal documents until approximately the second week of 24 November 2018. Resp. at 3-4; Opp. at 4-6. Even if, as Petitioner claims, he did 25 not have access to his legal documents from October 18, 2018 to 26 approximately November 15, 2018, he has not adequately demonstrated 27 diligence in pursuing habeas relief in the California Court of Appeal. The third 28 habeas petition was denied on August 23, 2018; Petitioner provides no 1 explanation why he could not file his fourth habeas petition, which raised the 2 same claims and contained virtually identical arguments as the third habeas 3 petition, in the 2-month period prior to his transfer.5 See Velasquez, 639 F.3d 4 at 968 (denying gap tolling where “each of [petitioner’s] habeas petitions [was] 5 nearly identical to the petition that came before it”). During this time period, 6 Petitioner accessed the law library 28 different times.6 Lodgment 16. Although 7 Petitioner claims generally that during prison transfers, he sometimes received 8 “legal mail” from the court late (Resp. at 3), Petitioner does not contend that 9 he did not timely receive the superior court’s denial of his third habeas 10 petition. Indeed, the prison mail logs reflect that Petitioner received mail from 11 the Los Angeles County Superior Court on August 31, 2018, 8 days after the 12 court issued the order denying the third habeas petition. Lodgment 15, Exh. B 13 at 4-5. As such, Petitioner is not entitled to interval tolling between the denial 14 of his third habeas petition and the filing of his fourth state habeas petition in 15 the California Court of Appeal. 16 Moreover, Petitioner is not entitled to any further statutory tolling for his 17 final two petitions because both petitions were filed after the expiration of the 18 limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 19 2003) (“section 2244(d) does not permit the reinitiation of the limitations 20 period that has ended before the state petition was filed”). 21 Therefore, although Petitioner is entitled to statutory tolling, it is 22 insufficient to render his Petition timely. — 23 — 24 5 Although Petitioner claims that the fourth habeas petition included an additional 25 ten pages (Opp. at 7-8), the grounds for relief and supporting arguments remained the same. — 26 — 6 Petitioner faults Respondent for providing computer generated attendance sheets — 27 — rather than the actual inmate sign-in sheets (Supp. Opp. at 8), but does not dispute 28 the dates he attended the law library as reflected in Respondent’s records. 1 B. Equitable Tolling Does Not Render the Petition Timely 2 In addition to statutory tolling, the AEDPA’s limitations period also is 3 subject to equitable tolling in appropriate cases. See Holland v. Florida, 560 4 U.S. 631 , 649 (2010). To be entitled to equitable tolling, a petitioner must show 5 both: (1) he has been pursuing his rights diligently; and (2) some extraordinary 6 circumstance stood in his way and prevented his timely filing. Id. The 7 “threshold necessary to trigger equitable tolling [under the AEDPA] is very 8 high, lest the exceptions swallow the rule.” Bills v. Clark, 628 F.3d 1092 , 1097 9 (9th Cir. 2010) (citation omitted). A court may grant such tolling only where 10 “‘extraordinary circumstances’ prevented an otherwise diligent petitioner from 11 filing on time.” Forbess v. Franke, 749 F.3d 837, 839 (9th Cir. 2014). 12 Consequently, as the Ninth Circuit has recognized, equitable tolling will be 13 justified in few cases. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (as 14 amended); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th 15 Cir. 2009) (“To apply the doctrine in ‘extraordinary circumstances’ necessarily 16 suggests the doctrine’s rarity, and the requirement that extraordinary 17 circumstances ‘stood in his way’ suggests that an external force must cause the 18 untimeliness, rather than, as we have said, merely ‘oversight, miscalculation or 19 negligence on [the petitioner’s] part, all of which would preclude the 20 application of equitable tolling.’” (alteration in original) (citation omitted)). 21 Petitioner contends that he is entitled to equitable tolling due to: (1) 22 numerous prison transfers; (2) limited law library access; (3) competing 23 deadlines; (4) his difficulty with the English language; and (5) his treatment 24 with psychotropic medications. Resp. at 3-4; Opp. at 4-6, 8. As explained 25 below, none of Petitioner’s explanations warrant equitable tolling. 26 1. Prison Transfers 27 Petitioner claims that multiple transfers impeded his ability to timely file 28 his Petition. He claims he was placed in administrative segregation on June 20, 1 2018; transferred to administrative segregation at California State Prison, Los 2 Angeles County on July 19, 2018; transferred to RJD, E-yard facility on 3 August 16, 2018; transferred to the A-yard facility at RJD on October 18, 2018; 4 and transferred to the E-yard facility at RJD on December 4, 2018. Due to 5 these transfers, Petitioner maintains he did not have access to his legal 6 documents between June 20, 2018 and August 16, 2018, and October 18, 2018 7 and mid-November 2018; and he sometimes received his “legal mail” from the 8 court late. Further, when his property was returned on August 16, 2018, 9 Petitioner discovered that some of his legal documents were lost or stolen. 10 Resp. at 3-4, Exhs. D-F; Opp. at 4. 11 The denial of access to legal files may, in some circumstances, constitute 12 an “extraordinary circumstance” beyond a petitioner’s control for purposes of 13 justifying equitable tolling of the limitations period. See Chaffer, 592 F.3d at 14 1049; see also Waldron-Ramsey, 556 F.3d at 1013 . Here, however, even 15 assuming Petitioner’s allegations are true, he is not entitled to equitable tolling 16 based on his argument regarding the lack of access to legal materials. 17 Petitioner initially contends he was denied access to his legal documents 18 from June 20, 2018 to August 16, 2018, and when his property was ultimately 19 returned to him, he noticed that some of his property was missing, including 20 “legal documents and books.” Resp. at 3-4, Exh. D. However, Petitioner has 21 not shown that the denial of access to his legal documents caused his 22 untimeliness. Petitioner does not identify any specific documents that he was 23 denied, let alone explain why he needed his legal files to prepare a habeas 24 petition. To the contrary, the record reflects that Petitioner was able to file his 25 third state habeas petition during this period, while in administrative 26 segregation and without access to his “legal documents.” Indeed, despite 27 Petitioner’s purported lack of access to his legal documents, Petitioner filed a 28 144-page petition, which included legal authority, a recitation of the 1 underlying factual background, and exhibits. See Lodgment 9. As such, 2 Petitioner has not shown that the lack of access to these documents prevented 3 him from timely filing a habeas petition as he was able to file a state habeas 4 petition without them. See De La Cruz v. Superior Court Cty. of L.A., 2019 5 WL 1211419 , at *3 (C.D. Cal. Feb. 1, 2019) (petitioner not entitled to 6 equitable tolling based on denial of legal documents because petitioner was 7 able to file his habeas petition without them), report and recommendation 8 accepted by 2019 WL 1205879 (C.D. Cal. Mar. 14, 2019); Campos v. 9 McDonald, 2011 WL 2173774 , at *4 (C.D. Cal. Jan. 25, 2011) (petitioner was 10 not entitled to equitable tolling where he was able to file two earlier habeas 11 petitions during the period in which he claims he lacked access to the law 12 library and to his legal documents), report and recommendation adopted by — 13 — 2011 WL 2162814 (C.D. Cal. June 2, 2011). 14 Petitioner also seeks equitable tolling based on the denial of access to his 15 legal documents between October 18, 2018 and mid-November 2018 following 16 a subsequent transfer. Again, however, Petitioner has failed to demonstrate 17 that the lack of access to his legal documents caused his untimeliness and 18 prevented him from timely filing a federal habeas petition. Rather, it was 19 untimely because Petitioner did not proceed expeditiously through the state 20 habeas process. Petitioner’s third habeas petition was denied on August 23, 21 2018, almost two months before he was transferred and deprived of his legal 22 documents. Petitioner provides no explanation regarding why he could not file 23 a virtually identical habeas petition during this 2-month period, prior to the 24 expiration of the limitations period on September 11, 2018. 25 Petitioner has not shown that he has been pursuing his rights diligently. 26 Chaffer, 592 F.3d at 1049; Waldron-Ramsey, 556 F.3d at 1013 . After his 27 Petition for Review was denied, Petitioner waited until 20 days remained in 28 the limitations period to begin the habeas process, and then waited until after 1 the limitations period expired before further pursuing his habeas remedies. All 2 of Petitioner’s claims are based upon facts that Petitioner knew, or should have 3 known, at the time of his trial in 2015. Petitioner points to no reason he could 4 not have pursued these claims in a habeas petition immediately after his trial, 5 or at the latest, after the California Supreme Court denied his Petition for 6 Review, when he was informed by appellate counsel of the one-year 7 limitations period for filing federal habeas petitions. See Pet., Dkt. 1-10 at 3. 8 Nothing in the record explains, much less justifies, Petitioner’s lengthy delay. 9 Finally, Petitioner’s allegation that his legal mail from the courts was 10 sometimes delayed as a result of the multiple transfers is vague and conclusory. 11 Petitioner does not identify any court filings he received in an untimely 12 manner, let alone explain how any delay prevented him from timely filing a 13 habeas petition. To the extent Petitioner contends that he received the superior 14 court’s denial of his third habeas petition on August 31, 2018 – 8 days after the 15 denial, Petitioner is not entitled to equitable tolling on this basis. See Machuca 16 v. Robertson, 2018 WL 5270493 , at *8 (C.D. Cal. Aug. 29, 2018) (petitioner 17 not entitled to any equitable tolling “for the normal mailing process that 18 caused a few days of delay in his receiving” denial order), report and 19 recommendation accepted by 2018 WL 5270490 (C.D. Cal. Oct. 22, 2018). 20 As such, Petitioner is not entitled to equitable tolling due to his lack of 21 access to legal documents and multiple custody transfers. 22 2. Law Library Access and Other Court Matters 23 Petitioner’s other arguments are similarly unavailing, and do not entitle 24 him to equitable tolling. Petitioner also claims that he had limited law library 25 access upon his transfer to the A-yard facility at RJD on October 18, 2018 26 because access was more “stringent and restricted,” and without his legal 27 documents, he could not obtain priority access. Opp. at 5-6. Routine 28 restrictions on law library access are not extraordinary circumstances, and 1 therefore, do not equitably toll the limitations period. See Ramirez v. Yates, — 2 — 571 F.3d 993, 998 (9th Cir. 2009); Frye v. Hickman, 273 F.3d 1144, 1146 (9th 3 Cir. 2001) (as amended) (recognizing that lack of access to library materials 4 does not automatically entitle a petitioner to equitable tolling); Thao v. Ducart, — 5 — 707 F. App’x 437, 438 (9th Cir. 2017) (“normal delays or restrictions on law 6 library access—such as stays in administrative segregation—are not considered 7 ‘extraordinary’ for purposes of establishing equitable tolling under AEDPA”); 8 Lara v. Neven, 629 F. App’x 790, 792 (9th Cir. 2015) (“[N]either [petitioner’s] 9 limited access to the law library in prison, nor his lack of advice or assistance 10 from counsel, nor their combination so interfered with his ability to file a 11 timely federal petition as to allow for equitable tolling.”). Further, Petitioner 12 was not transferred until October 18, 2018, after the expiration of the 13 limitations period, and thus, his limited access to the law library after his 14 transfer could not have caused his untimeliness. Petitioner had ample time to 15 access the law library and file his habeas petition prior to the September 11, 16 2018 deadline. See Lodgment 16. Indeed, as noted, the claims in the fourth 17 habeas petition were virtually identical to the claims in the third habeas 18 petition, including the factual and legal support for each ground for relief. 19 Petitioner claims he also was busy working on other legal matters, and 20 not all of his time in the law library was spent on this case. See Opp. at 8; 21 Supp. Opp. at 6-7. The fact that Petitioner was able to pursue other legal 22 matters, however, undercuts Petitioner’s arguments that he was prevented 23 from timely pursuing habeas relief during this same time period, and suggests 24 that Petitioner’s own lack of diligence was the cause of his untimeliness. See 25 Eichler v. Subia, 2010 WL 891248 , at *9 n.9 (E.D. Cal. Mar. 8, 2010) 26 (“petitioner’s claims that the filing of the instant habeas petition was delayed 27 because he was busy attending to his other court cases actually cut against his 28 equitable tolling arguments” since his “initiation and continued prosecution of 1 these other lawsuits reflect[ed] that he was not unable to file his federal habeas 2 petition at the time”). Accordingly, Petitioner is not entitled to equitable tolling 3 based on his limited access to the law library after October 18, 2018. See 4 Rhodes v. Kramer, 451 F. App’x 697, 698 (9th Cir. 2011) (“The district court 5 did not clearly err in finding that limited library access did not prevent 6 [petitioner] from timely filing his habeas petition, and [petitioner] has not 7 demonstrated that an extraordinary circumstance beyond his control warrants 8 equitable tolling.”); Perkins v. California, 2019 WL 5606870 , at *4 (C.D. Cal. 9 Sept. 30, 2019) (petitioner was not entitled to equitable tolling based on his 10 limited access to the law library where the record showed petitioner had ample 11 time within the limitations period to file his petition), report and 12 recommendation accepted by 2019 WL 5595232 (C.D. Cal. Oct. 29, 2019). 13 3. Limited Understanding of the English Language 14 In addition, Petitioner is not entitled to equitable tolling because he is 15 not fluent in the English language. See Opp. at 8; Supp. Opp. at 7. In Mendoza 16 v. Carey, 449 F.3d 1065, 1069 (9th Cir. 2006), the Ninth Circuit held that an 17 alleged combination of a prison law library’s lack of Spanish-language legal 18 materials and a Spanish-speaking prisoner’s inability to obtain translation 19 assistance before the expiration of the statute of limitations might warrant 20 equitable tolling. The petitioner in Mendoza alleged that the prison law library 21 contained only English-language materials and provided only English-speaking 22 clerks and librarians, and that the petitioner obtained the assistance of a 23 bilingual inmate only after the statute of limitations had expired. Id. The Ninth 24 Circuit held that, in order to show an entitlement to equitable tolling, a non25 English speaking prisoner “must, at a minimum, demonstrate that during the 26 running of the AEDPA time limitation, he was unable, despite diligent efforts, 27 to procure either legal materials in his own language or translation assistance 28 from an inmate, library personnel, or other source.” Id. at 1070 . “[A] petitioner 1 who demonstrates proficiency in English or who has the assistance of a 2 translator would be barred from equitable relief.” Id. 3 Here, Petitioner has not shown that his limited ability to understand 4 English prevented him from timely filing his habeas petition. Petitioner does 5 not allege that the prison law library lacked legal materials in his native 6 language or that he was unable to obtain translation assistance from another 7 inmate, library personnel, or other sources prior to the expiration of the statute 8 of limitations. Nor has Petitioner demonstrated diligent efforts to obtain such 9 assistance. As such, Petitioner has not shown entitlement to equitable tolling 10 based on his purported difficulty with the English-language. See United States 11 v. Aguirre-Ganceda, 592 F.3d 1043, 1046 (9th Cir. 2010) (concluding that the 12 petitioner was not entitled to equitable tolling where he failed to demonstrate 13 that “he was unable, despite diligent efforts, to procure either legal materials in 14 his own language or translation assistance from an inmate, library personnel, 15 or other source” (quoting Mendoza, 449 F.3d at 1070 )). 16 4. Treatment with Psychotropic Medications 17 Finally, to the extent Petitioner contends that he is entitled to equitable 18 tolling because he was being treated with psychotropic medication (Opp. at 9), 19 such contention does not warrant equitable tolling in this case. Although the 20 Ninth Circuit has found that a prisoner’s mental incompetency may constitute 21 an extraordinary circumstance beyond a petitioner’s control for purposes of 22 justifying the application of equitable tolling to the AEDPA statute of 23 limitations, Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003); see also 24 Bills, 628 F.3d at 1097; Roberts v. Marshall, 627 F.3d 768, 772 (9th Cir. 2010), 25 the mere existence of a mental illness is insufficient to warrant equitable 26 tolling. Turner v. Holland, 2015 WL 9813557 , at *8 (C.D. Cal. Dec. 14, 2015) 27 (citing Spitsyn, 345 F.3d at 799 ), report and recommendation accepted by 2016 28 WL 197713 (C.D. Cal. Jan. 12, 2016); Payne v. Valenzuela, 2015 WL 1 9914190, at *4 (C.D. Cal. Dec. 4, 2015), report and recommendation accepted 2 by 2016 WL 304294 (C.D. Cal. Jan. 25, 2016). Rather, the petitioner must 3 establish a causal connection between his mental illness and his failure to seek 4 habeas relief on a timely basis. See Bills, 628 F.3d at 1099-1100 ; Laws, 351 5 F.3d at 923; see also Bolarinwa v. Williams, 593 F.3d 226, 232 (2d Cir. 2010) 6 (petitioner seeking equitable tolling based on mental impairment must show 7 how the mental illness impaired her ability to comply with the filing deadline, 8 including a “‘particularized description of how her condition adversely affected 9 her capacity to function generally or in relationship to the pursuit of her 10 rights’” (citation omitted)). The following two-part test must be satisfied in 11 order to warrant equitable tolling based on a mental impairment: 12 (1) First, a petitioner must show his mental impairment was 13 an “extraordinary circumstance” beyond his control, by 14 demonstrating the impairment was so severe that either 15 (a) petitioner was unable rationally or factually to 16 personally understand the need to timely file, or 17 (b) petitioner’s mental state rendered him unable 18 personally to prepare a habeas petition and effectuate its filing. 19 (2) Second, the petitioner must show diligence in pursuing 20 the claims to the extent he could understand them, but that the 21 mental impairment made it impossible to meet the filing deadline 22 under the totality of the circumstances, including reasonably 23 available access to assistance. 24 Bills, 628 F.3d at 1099-1100 (internal citation and footnote omitted). 25 In the present case, Petitioner has not demonstrated the existence of any 26 severe mental impairment, and nothing in the record supports the conclusion 27 that Petitioner suffered from a severe mental impairment preventing him from 28 timely filing a federal habeas petition. Nor does Petitioner even argue that a 1 mental impairment prevented him from filing a timely petition or was the “but2 for cause of any delay.” See Bills, 628 F.3d at 1100 . Rather, Petitioner 3 contends that his psychotropic medication causes “dro[w]siness and excessive 4 sleep periods that limit Petitioner’s awake periods to access the law library 5 when his property [was] returned . . . .” Opp. at 9. Petitioner’s vague and 6 conclusory allegation is insufficient to warrant equitable tolling. Even if there 7 were some side effects from the medication Petitioner was taking, Petitioner 8 has not demonstrated that it prevented him from understanding the need to file 9 a timely federal habeas petition or the ability to do so. To the contrary, the 10 record reflects that Petitioner regularly accessed the prison law library 11 (Lodgments 16-17), and the prison mail logs reflect that Petitioner was actively 12 pursuing legal matters during this time period. See Lodgment 15 at 15-31. 13 Petitioner’s ability to engage in litigation during this time period undermines 14 his claim that the side effects from his medication prevented him from filing his 15 habeas petition on time. See, e.g., Bravo v. Biter, 2018 WL 4223653 , at *7 16 (C.D. Cal. Feb. 6, 2018) (petitioner’s ability to file habeas petitions and other 17 documents, earn his GED, correspond with the California Appellate Project, 18 and request information from the law library reflected that petitioner’s learning 19 disability and side effects from his blood pressure medications did not prevent 20 him from understanding the need to file a timely federal petition or the ability 21 to do so), report and recommendation accepted by 2018 WL 4216691 (C.D. 22 Cal. Sept. 5, 2018); Cole v. Soto, 2016 WL 836328 , at *7 (C.D. Cal. Jan. 6, 23 2018) (petitioner not entitled to equitable tolling based on mental impairment 24 where he was able to file several state habeas petitions during the period in 25 which he claimed to have been suffering a mental impairment), report and 26 recommendation accepted by 2016 WL 837894 (C.D. Cal. Mar. 2, 2016). 27 / / / 28 / / / 1 Accordingly, Petitioner is not entitled to equitable tolling, and the 2 || Petition is untimely.’ 3 IV. 4 ORDER 5 IT IS THEREFORE ORDERED that: 6 1. Respondent’s Motion to Dismiss (Dkt. 12) is granted in part; and 7 2. Judgment shall be entered denying the Petition and dismissing this 8 action with prejudice. — 9 — 10 || Dated: January 09, 2020 — 12 — 13 J D. EARLY ited States Magistrate Judge — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — 7 light of the Court’s conclusion that the Petition is untimely, it 1s unnecessary to address Respondent’s additional contention that four of Petitioner’s claims are 28 || procedurally defaulted. — 19 —