Edgin v. Covello

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 DARREL EDGIN, Case No. 20-cv-07565-JD 8 Petitioner, ORDER RE MOTION TO DISMISS v. [9] Re: Dkt. No. 24 10 PATRICK COVELLO, Respondent. [12] 13 Darrel Edgin, a pro se state prisoner, has filed a habeas petition under 28 U.S.C. § 2254 . 14 Respondent filed a motion to dismiss on the grounds that the petition is barred by the statute of 15 limitations. Edgin filed an opposition (Dkt. No. 26) and respondent filed a reply. Edgin filed a 16 sur-reply (Dkt. No. 28). 17 The Court reviewed the filings and found that the petition appeared untimely unless Edgin 18 was entitled to equitable tolling. He was provided an opportunity to file further briefing to address 19 how the Covid-19 pandemic impeded his ability to meet the filing deadline. Dkt. No. 29 at 7. 20 Edgin has filed additional briefing (Dkt. Nos. 33, 36) that the Court has reviewed. The motion to 21 dismiss is granted. 22 STATUTE OF LIMITATIONS 23 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a statute 24 of limitations on petitions for writs of habeas corpus filed by state prisoners. Petitions filed by 25 prisoners challenging noncapital state convictions or sentences must be filed within one year of the 26 latest of the date on which: (A) the judgment became final after the conclusion of direct review or 27 the time passed for seeking direct review; (B) an impediment to filing an application created by 1 constitutional right asserted was recognized by the Supreme Court, if the right was newly 2 recognized by the Supreme Court and made retroactive to cases on collateral review; or (D) the 3 factual predicate of the claim could have been discovered through the exercise of due diligence. [4] 28 U.S.C. § 2244 (d)(1). Time during which a properly filed application for state post-conviction 5 or other collateral review is pending is excluded from the one-year time limit. 28 U.S.C. § 6 2244(d)(2). 7 The one-year period generally will run from “the date on which the judgment became final 8 by the conclusion of direct review or the expiration of the time for seeking such review.” 28 9 U.S.C. § 2244 (d)(1)(A). “Direct review” includes the period within which a petitioner can file a 10 petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner 11 actually files a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Accordingly, if a 12 petitioner fails to seek a writ of certiorari from the United States Supreme Court, AEDPA’s one13 year limitations period begins to run on the date the ninety-day period defined by United States 14 Supreme Court Rule 13 expires. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) 15 (where petitioner did not file petition for certiorari, his conviction became final 90 days after the 16 California Supreme Court denied review); Bowen, 188 F.3d at 1159 (same). 17 Background 18 In January 2016, a jury convicted Edgin of two counts of sexual intercourse with a child 10 19 years or younger and three counts of lewd or lascivious conduct acts with a child under 14. 20 Motion to Dismiss (“MTD”) Ex. A. Edgin was sentenced to a total term of 50 years to life 21 consecutive to 8 years. Id. 22 On June 19, 2018, the California Court of Appeal affirmed the conviction. Id. On 23 September 12, 2018, the California Supreme Court denied review. Id. Ex. B. 24 On October 23, 2018, Edgin filed a habeas petition in the Santa Clara County Superior 25 Court. Id. Ex. C at 7 of 19. 1 The petition was denied on January 15, 2019. Id. Ex. D. [27] 1 The Court applies the “mailbox rule” to the filing of Edgin’s pro se habeas petitions in state and 1 On March 6, 2019, Edgin filed a habeas petition in the California Court of Appeal which 2 was denied on March 21, 2019. Id. Ex. E. 3 On May 8, 2019, Edgin filed a habeas petition in the California Supreme Court which was 4 denied on August 28, 2019. Id. Ex. F. 5 On October 11, 2020, Edgin sent a letter to this Court seeking an extension to file his 6 federal habeas petition due to restrictions accessing the law library due to Covid-19. Dkt. No. 1 at 7 6. The letter was opened as a new case.2 Edgin submitted his federal habeas petition on October 8 22, 2020. Dkt. No. 6 at 6. 9 Discussion 10 Edgin had ninety days from September 12, 2018, when the state high court denied review, 11 to file a petition for writ of certiorari with the United States Supreme Court. See Bowen, 188 F.3d 12 at 1159. He did not do so. As a result, the one-year limitations period began to run on December 13 12, 2018, the day after the ninety-day deadline expired, giving Edgin until December 11, 2019, to 14 file his federal habeas petition. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) 15 (calculating AEDPA’s one-year limitations period according to Federal Rule of Civil Procedure 16 6(a)). Consequently, the petition filed on October 11, 2020, is untimely unless Edgin is entitled to 17 tolling. 18 On the record before the Court, he is not eligible for a period of tolling that would make 19 his petition timely. To start, the one-year statute of limitations is tolled under § 2244(d)(2) for the 20 “time during which a properly filed application for State post-conviction or other collateral review 21 with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244 (d)(2). The salient 22 question for tolling purposes is whether a properly filed “application” is pending in state court, 23 and not whether any particular claim was contained in that application. Gaston v. Palmer, 417 24 F.3d 1030 , 1040 (9th Cir. 2005) (distinguishing between the exhaustion requirement of 28 U.S.C. 25 § 2254(b)(1)(A), which is determined on a claim-by-claim basis, and the “properly filed” 26 requirement of § 2244(d)(2), which is determined by looking at the application for state habeas [27] 1 relief as a single entity), amended, 447 F.3d 1165 (9th Cir. 2006). 2 Edgin filed state habeas petitions in each level of the state courts, starting on October 23, 3 2018, and concluding when the California Supreme Court denied his petition on August 28, 2019. 4 The first petition was filed in the Santa Clara County Superior Court prior to the commencement 5 of the statute of limitations period. As a result, Edgin is entitled to statutory tolling from the 6 commencement of the limitations period until August 28, 2019, when his petition was denied by 7 the California Supreme Court. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (“We have 8 noted that a state habeas petition filed before the AEDPA statute of limitations begins to run tolls 9 the limitation period.”). Edgin had a one-year period, starting from the denial by the California 10 Supreme Court on August 28, 2019, until August 28, 2020 to file his federal petition. The petition 11 filed in October 2020, is untimely. 12 The next question is whether the August 28, 2020, deadline may be extended on equitable 13 grounds. The Supreme Court has determined that § 2244(d), AEDPA’s statute of limitations, is 14 subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). 15 “[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing 16 his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented 17 timely filing.” Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408 , 418 18 (2005)). 19 To satisfy the first prong under Holland, a litigant must show that “he has been reasonably 20 diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary 21 circumstance existed, but before and after as well, up to the time of filing his claim in federal 22 court.” Smith v. Davis, 953 F.3d 582, 598-99, 601 (9th Cir. 2020) (en banc) (rejecting prior stop23 clock approach for evaluating when a petitioner must be diligent). In determining whether 24 reasonable diligence was exercised, courts should: (1) “‘consider the petitioner’s overall level of 25 care and caution in light of his or her particular circumstances,’” id. at 599 (quoting Doe v. Busby, [26] 661 F.3d 1001, 1013 (9th Cir. 2011); and (2) “be ‘guided by decisions made in other similar cases 27 . . . with awareness of the fact that specific circumstances, often hard to predict in advance, could 1 (9th Cir. 2016)) (omission in original) (internal quotation marks omitted). “[I]t is not enough for a 2 petitioner seeking an exercise of equitable tolling to attempt diligently to remedy his extraordinary 3 circumstances; when free from the extraordinary circumstance[s], he must also be diligent in 4 actively pursuing his rights.” Id.; id. at 601-02 (finding petitioner did not exercise reasonable 5 diligence where he acted diligently in contacting his attorney to remedy the extraordinary 6 circumstance that he lacked his case file but failed to allege that he acted diligently thereafter in 7 preparing his habeas petition which was filed 364 days after he received his appellate record). 8 With respect to the second Holland prong, equitable tolling is proper “only when an 9 extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a 10 timely filing.” Smith v. Davis, 953 F.3d at 600 . “In evaluating whether an ‘extraordinary 11 circumstance stood in [a petitioner’s] way and prevented timely filing,’ a court is not bound by 12 ‘mechanical rules’ and must decide the issue based on all the circumstances of the case before it.” [13] Id. (quoting Holland, 560 U.S. at 649-50 ) (alteration in original) (assuming petitioner’s allegations 14 as true and assuming that his attorney’s failure to contact him for five months after his state appeal 15 was denied was sufficiently egregious to qualify as an “extraordinary circumstance” that created 16 an impediment to filing, satisfying the second prong, but finding petitioner failed to exercise the 17 necessary diligence to satisfy the first prong to warrant equitable tolling). 18 Edgin originally argued that he was entitled to equitable tolling because his appellate 19 counsel on direct appeal told him that he had 15 months to file a federal habeas petition from the 20 date the California Supreme Court denied review. Dkt. No. 28 at 4. Appellate counsel appeared 21 to have been referring to the 90 days after direct review to seek a writ of certiorari from the United 22 States Supreme Court and AEDPA’s one-year statute of limitations. Appellate counsel sent Edgin 23 a letter with this advice on October 23, 2018, approximately six weeks after the California 24 Supreme Court denied review on direct appeal. It appeared that Edgin misunderstood this letter to 25 mean that he had 15 months from when the California Supreme Court denied his state habeas 26 petition, not the denial on direct review. As a result, Edgin waited until nearly 15 months after the 27 denial of his state habeas petition by the California Supreme Court to file this federal petition. 1 The Court previously noted that the appellate lawyer’s letter in itself was not enough for 2 equitable tolling. Even assuming it was bad advice, which is not entirely clear is true, negligence 3 by an attorney does not amount to an extraordinary circumstance warranting equitable tolling of 4 the limitations period. See Holland, 560 U.S. at 652 (“a ‘garden variety claim’ of attorney 5 negligence” does not warrant equitable tolling of habeas statute of limitations period). The Ninth 6 Circuit has found that an attorney’s miscalculation of deadlines relating to the filing of a habeas 7 petition is considered negligence that is not an “extraordinary circumstance” warranting equitable 8 tolling. See Randle v. Crawford, 604 F.3d 1047, 1057-58 (9th Cir. 2010) (trial counsel’s failure to 9 perfect a timely appeal, post-conviction counsel’s incorrect advice as to filing deadline for federal 10 petition and two-month delay in providing client files did not warrant equitable tolling). 11 Edgin also argued that restrictions due to Covid-19 interfered with his ability to access the 12 law library in the fall of 2020. Dkt. No. 26 at 1. Edgin’s brother, who is not incarcerated, was 13 helping Edgin prepare the petition, but correspondence via U.S. Mail was also slowed due to 14 Covid-19. Dkt. No. 28 at 2. 15 With respect to delays Edgin attributed to Covid-19 restrictions at the prison law library 16 and delays in sending and receiving mail, the Court has extended deadlines for similar reasons on 17 many occasions in other cases. The problem here was that Edgin had not shown that these 18 conditions impeded his ability to meet the August 28, 2020, deadline. He said that pandemic 19 restrictions interfered with his ability to access the law library in the fall of 2020, and delayed the 20 mail to and from his brother in September 2020. But the petition was due on August 28, 2020, 21 before these issues. The record did not present facts showing similar impediments prior to that 22 date. 23 The Court also noted that Edgin must show “that he has been reasonably diligent in 24 pursuing his rights not only while an impediment to filing caused by an extraordinary 25 circumstance existed, but before and after as well, up to the time of filing his claim in federal 26 court.” Smith, 953 F.3d at 598-99, 601 . It is not uncommon for events to happen in prison that 27 substantially affect a petitioner’s ability to meet a court deadline. These circumstances typically 1 (petitioner’s nearly three-month stay in administrative segregation with limited access to the law 2 library and a copier did not justify equitable tolling); Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th 3 Cir. 2010) (per curiam) (prisoner’s pro se status, law library missing a “handful” of reporter 4 volumes, and reliance on inmate helpers who were transferred or too busy to attend to his petitions 5 are not extraordinary circumstances “given the vicissitudes of prison life”). 6 In light of Covid-19 and Edign’s lack of information regarding how the pandemic affected 7 his ability to timely file the petition, the Court stated: 8 To be sure, the Covid-19 pandemic has been a disruptive event without precedent in recent times. It is possible that Edgin faced 9 extraordinary circumstances imposed by this unexpected public health crisis that genuinely impeded his ability to meet the filing 10 deadline in the months leading up to it. Consequently, in the interests of justice, Edgin will be allowed to file additional briefing addressing 11 the caselaw above and demonstrating extraordinary circumstances in that the pandemic caused him to miss the August 28, 2020, deadline. 12 No new claims may be added. 13 Dkt. No. 29 at 6-7. 14 Edgin has filed additional briefing but has only partially addressed the Court’s concerns. 15 The majority of the briefing again focusses on Edgin’s belief that he had 15 months to file a 16 federal habeas petition from the date the California Supreme Court denied review. As noted 17 before, it appeared that Edgin believed he had 15 months from when the California Supreme Court 18 denied his state habeas petition, not the denial on direct review. Edgin includes excerpts of a legal 19 handbook that correctly states a habeas petition must be filed within 15 months of the denial of 20 direct review. While Edgin, a non-lawyer, is not fully tracking the legal distinction between direct 21 review and the filing of state habeas petitions, a pro se petitioner’s lack of legal sophistication is 22 not, by itself, an extraordinary circumstance warranting equitable tolling. Rasberry v. Garcia, 448 23 F.3d 1150, 1154 (9th Cir. 2006). 24 With respect to Covid-19, Edgin presents the same brief arguments from his prior filings. 25 He contends that since September 2020, the pandemic has caused mail to slow down, he had no 26 law library access and he was quarantined for weeks at a time. Dkt. No. 33 at 2. He also notes 27 that he sent a letter to the Court on August 12, 2020 and was informed that “questions about when 1 The statute of limitations expired on August 28, 2020, but Edgin again only presents brief 2 arguments regarding how he was delayed in filing the petition in September 2020, and after. He 3 has not presented any arguments addressing difficulties in filing the petition in the months leading 4 || up to the deadline or during the other periods of the one-year period. He fails to demonstrate that 5 || he was reasonably diligent in pursuing his rights before and up to the expiration of the statute of 6 || limitations, which is required to receive equitable tolling. It is not uncommon for events to 7 || happen in prison that substantially affect a petitioner’s ability to meet a court deadline, but these 8 circumstances typically do not support equitable tolling. See Ramirez, 571 F.3d at 998. Edgin has 9 || had several opportunities to demonstrate the need for equitable tolling but he has failed to meet his 10 || burden and is not entitled to equitable tolling for the Covid-19 related delays that occurred just 11 after the expiration of the statute of limitations. 12 CONCLUSION 5 13 1. Respondent’s motion to dismiss (Dkt. No. 24) is GRANTED and this case is 14 || DISMISSED. The Clerk is requested to close the case. 3 15 2. A certificate of appealability (“COA”) will not issue because this is not a case in which a 16 || “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a 3 17 constitutional right and that jurists of reason would find it debatable whether the district court was S 18 || correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court 19 declines to issue a COA regarding the procedural holding or the underlying claims of the petition. 20 IT IS SO ORDERED. 21 Dated: September 24, 2021 [23] JAMES TO 24 United Stf#tes District Judge