United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 comes before the Court following
Petitioner's response to the Court's order to show
cause why the petition should not be dismissed as untimely.
challenges his 2011 state court judgment of conviction,
pursuant to jury trial, of several counts of sexual assault,
lewdness and incest in Eighth Judicial District Court No.
264467. (ECF No. 1-1 at 1-2.) Judgment of conviction was
entered on June 28, 2011, and the Nevada Supreme Court
affirmed on direct appeal on November 19, 2012. (Id.
at 1.) The state court dockets, of which the Court takes
judicial notice, do not reflect entry of any intervening
judgment of conviction.
filed a petition for writ of habeas corpus in state court on
March 13, 2013. (ECF No. 1-1 at 1.) The trial court denied
the petition on April 21, 2014. The Nevada Court of Appeals
affirmed on February 24, 2015, and remittitur issued on March
four years later, Petitioner filed the instant federal habeas
petition. (ECF No. 1-1 at 1).
28 U.S.C. § 2244(d)(1)(A), the federal one-year
limitation period, unless otherwise tolled or subject to
delayed accrual, begins running after “the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such direct
review.” The federal limitations period is tolled while
“a properly filed application for State post-conviction
or other collateral review with respect to the pertinent
judgment or claim is pending.” Id. §
conviction became final when the time expired for filing a
petition for writ of certiorari with the United States
Supreme Court, or on February 18, 2013. The federal statute
of limitations thus began to run the following day. Assuming
that the limitations period was tolled during the pendency of
petitioner's state postconviction proceedings, from March
13, 2013, until March 23, 2015, the limitations period began
again to run following the issuance of remittitur on the
postconviction appeal. Therefore, absent a basis for tolling
or other delayed accrual, the statute of limitations expired,
at the latest, on or about February 29, 2016. The instant
petition, filed more than three years later, is therefore
untimely on its face.
response to the order to show cause, Petitioner argues that
he is entitled to equitable tolling. Equitable tolling is
appropriate only if Petitioner can show that: (1) he has been
pursuing his rights diligently, and (2) some extraordinary
circumstance stood in his way and prevented timely filing.
Holland v. Florida, 560 U.S. 631, 649 (2010).
Equitable tolling is “unavailable in most cases,
” Miles v. Prunty, 187 F.3d 1104, 1107 (9th
Cir. 1999), and “the threshold necessary to trigger
equitable tolling is very high, lest the exceptions swallow
the rule, ” Miranda v. Castro, 292 F.3d 1063,
1066 (9th Cir. 2002) (quoting United States v.
Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). A
petitioner ultimately has the burden of proof on this
“extraordinary exclusion.” Miranda, 292
F.3d at 1065. He accordingly must demonstrate a causal
relationship between the extraordinary circumstance and the
lateness of his filing. E.g., Spitsyn v. Moore, 345
F.3d 796, 799 (9th Cir. 2003). Accord Bryant v. Arizona
Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007).
asserts that he is entitled to equitable tolling because it
was difficult for him to find a knowledgeable inmate who
could assist him due to the nature of his convictions.
Specifically, Petitioner asserts that he was housed in a
facility with a large number of inmates who try to hurt
inmates convicted of sex offenses against minors.
(See ECF No. 6.) Petitioner asserts that once he
found an inmate who had charges similar to his, they were
able together to file his petition within three weeks.
(Id. at 7-8.) Petitioner's allegations do not
support a finding of an extraordinary circumstance that
prevented the timely filing of his petition.
this Court agrees with the many other courts that have
decided this issue that petitioner's status as a sex
offender, and the associated difficulties in finding inmate
legal assistance, are not extraordinary circumstances that
support application of equitable tolling. See, e.g.,
Aguila v. McDowell, 2018 WL 7107624, at *4 (C.D. Cal.
Oct. 12, 2018), report and recommendation adopted,
No. LACV1701592VBFDFM, 2019 WL 296197 (C.D. Cal. Jan. 22,
2019); Williams v. Doohan, No. 3:17-CV-00319-MA,
2018 WL 3642441, at *3 (D. Or. Aug. 1, 2018), certificate
of appealability denied, No. 18-35644, 2018 WL 7238120
(9th Cir. Dec. 21, 2018); Fox v. Holland, No.
15-CV-02134 YGR, 2016 WL 4943003, at *5 (N.D. Cal. Sept. 16,
2016); Samperio v. Martel, No. 1:10-CV-01528 LJO,
2011 WL 847412, at *3 (E.D. Cal. Mar. 4, 2011).
Petitioner has not alleged or established that his
circumstances prevented Petitioner from filing a petition on
his own. A petitioner's ignorance of the law is not an
extraordinary circumstance that can serve as the basis for
equitable tolling. See Rasberry v. Garcia, 448 F.3d
1150, 1154 (9th Cir. 2006) (holding that a pro se
petitioner's “lack of legal sophistication is not,
by itself, an extraordinary circumstance warranting equitable
tolling”); Hughes v. Idaho State Bd. of
Corrs., 800 F.2d 905, 909 (9th Cir. 1986) (pro se
prisoner's illiteracy and ignorance of law not sufficient
to meet standard of an objective, external factor to avoid
procedural bar on habeas claims). And petitioners are not
entitled to legal assistance in collateral proceedings, from
inmates or otherwise. See Pennsylvania v. Finley,
481 U.S. 551, 557 (1987) (state not required to provide
appointed counsel in state post-conviction proceedings);
see also Lawrence v. Florida, 549 U.S. 327 (2007);
Nelson v. Clark, No. SA CV 09-761, 2009 WL 6640990,
at *5 (C.D. Cal. Nov. 13, 2009), report and recommendation
adopted, No. SA CV 09-00761, 2010 WL 2681949 (C.D. Cal. June
30, 2010) (“Nor is petitioner entitled to equitable
tolling because he was afraid to ask other inmates to help
him with his habeas petitions, as a lack of legal assistance
does not suffice as a legitimate reason to excuse a late
application.”); McCoy v. Sisto, 2010 WL
455464, at *3 (E.D. Cal. Feb. 3, 2010) (“Therefore, the
difficulties that petitioner faced in obtaining legal
assistance from other prisoners do not equitably toll the
statute of limitations.”). Accordingly, Petitioner has
not established that he is entitled to equitable tolling on
the basis of his status as a sex offender and the related
difficulties he encountered in securing legal assistance.
additionally asserts that that he was in the Regional Medical
Facility at Northern Nevada Correctional Center from October
2015 to February 2016 - during the time period that his
federal statute of limitations was running. Petitioner
asserts that he could not file his petition during this time
because he could access the law library only by sending
written requests that would go to an unknown inmate, and he
feared that the unknown inmate could be someone who would
want to hurt him. Difficulties in accessing the law library
are not extraordinary circumstances that justify equitable
tolling. Ramirez v. Yates, 571 F.3d 993, 998 (9th
Cir. 2009); see also Alva v. Busby, 588 Fed.Appx.
621, 622 (9th Cir. 2014). But even if this could be
considered an extraordinary circumstance, petitioner was in
the RMF for less than six months. Even if given tolling for
this time period, his petition is still late by more than
alleges no other basis for tolling, equitable or statutory,
or delayed accrual of any of his claim. And petitioner does
not argue that he is actually innocent. Accordingly, the
petition, filed three years after the expiration of the
Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA) statute of limitations, is untimely and must be
therefore ordered that the Clerk file the petition (ECF No.
1-1) and that the petition is hereby ...