Davis v. Madden

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KELLY BEAU DAVIS, Case No.: 22cv0951-LL-MDD

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Petitioner,

12 REPORT AND RECOMMENDATION

v. GRANTING RESPONDENT’S MOTION

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TO DISMISS PETITIONER’S WRIT OF

RAYMOND MADDEN, Warden,

14 HABEAS CORPUS

Respondent.

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[ECF NO. 7]

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17 I. INTRODUCTION

18 This habeas petition concerns a sentence modification credit of eight

19 months that occurred 17 years after Petitioner Kelly Beau Davis (“Petitioner”

20 or “Davis”), a state prisoner, was sentenced to an aggregate term of 37 years

21 and four months. Petitioner’s sentencing took place on the ominous date and

22 time of September 11, 2001 at 8:30 a.m. The terrorist attack interrupted the

23 hearing, and the courthouse was evacuated. Later that day, a minute order

24 entered reflecting the sentencing details, and the government lodged the

25 Petitioner’s sentence in state court. In 2018, the California Department of

26 Corrections (“CDCR”) discovered a mistake that resulted in an eight-month

1 On April 25, 2018, a sentence modification hearing occurred. Petitioner

2 did not know about the hearing, but an appointed counsel, A. Waddle, was

3 present. Throughout the briefing here, both parties refer to the April 25,

4 2018 hearing as a resentencing, so the Court does as well. It is worth noting,

5 however, that the superior court’s opinion that denied Davis’s state habeas

6 petition referred to the April 25, 2018 event as a “sentence modification

7 hearing.” (ECF No. 8-5 at 59). The court explained that after the April 25,

8 2018 hearing, a minute order credited Davis’s sentence with eight months

9 “nunc pro tunc to 9/11/2001.” (ECF Nos. 8-3 at 44, 8-5 at 2). That

10 modification occurred after the court properly reduced Petitioner’s sentence

11 enhancement (i.e., personal use of a deadly weapon in a second-degree

12 robbery) from one year to four months. (Id.).

13 Petitioner filed the current Petition for Writ of Habeas Corpus

14 (“Petition”) pursuant to 28 U.S.C. § 2254 based on his absence from the April

15 25, 2018 resentencing and the ineffective assistance of appointed counsel at

16 that hearing. (ECF No. 1). He did not appeal the resentencing.

17 Respondent Raymond Madden now moves to dismiss the Petition as

18 untimely. (ECF No. 7). Petitioner, having retained new counsel twice, filed

19 an opposition. (ECF No. 16). The motion was referred to U.S. Magistrate

20 Judge Mitchell D. Dembin for Report and Recommendation pursuant to 28

21 U.S.C. § 636(b) and Local Civil Rule HC.1 of the United States District Court

22 for the Southern District of California.

23 Brief Conclusion

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After a thorough review of the papers on file, the facts, and the

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applicable law, the Court respectfully RECOMMENDS that Respondent’s

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Motion to Dismiss be GRANTED. The Court finds that statutory tolling

1 does not apply, and only portions of Petitioner’s proposed equitable tolling are

2 supported. Notwithstanding those findings, even if the Court were

3 persuaded that a combination of statutory and equitable tolling could apply,

4 Petitioner cannot overcome the untimeliness that results between the

5 conclusion of the state habeas petition on March 30, 2021 and the Petition

6 filed here 15 months later, on June 28, 2022.

7 II. BACKGROUND

8 A. The Conviction

9 On July 11, 2001, Davis pled guilty to two counts of first-degree

10 burglary, and one count each of carjacking, kidnapping, first-degree robbery,

11 and second-degree robbery. (ECF No. 8-4 at 1 [Court of Appeal denial of state

12 habeas petition]; ECF No. 1-9 at 4 [Order including Reporter’s Tr. of Plea

13 Hr’g]). Petitioner admitted he personally used a firearm in the carjacking

14 and kidnapping, and personally used a deadly weapon in the second-degree

15 robbery. He also admitting having a prior conviction that constituted a

16 serious felony for purposes of a five-year enhancement and a strike for

17 purposes of the Three Strikes law. (Id.).

18 At the plea hearing, the court asked Davis whether he understood his

19 admission of the prior serious felony conviction would add five years to his

20 prison sentence. He responded, “Yes, Your Honor.” (Id.). The superior court

21 sentenced Davis to prison on September 11, 2001, for an aggregate term of 37

22 years and four months, which contained the following components:

23 (1) the middle term of five years for the carjacking, doubled to 10

24 years for the prior strike (Cal. Penal Code §§ 215, subd. (b), 667,

subd. (e)(1);

25 (2) a consecutive term of one year eight months (one-third the

26 middle term of five years) for the kidnapping, doubled to three

years four months for the prior strike (Id. §§ 208, subd. (b), 667,

1 (3) a consecutive term of one year four months (one-third the middle

term of four years) for one first-degree burglary, doubled to two

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years eight months for the prior strike (Id. §§ 461, subd. (a), 667,

3 subd. (e)(1), 1170.1, subd. (a));

(4) a consecutive term of one year (one-third the middle term of

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three years) for the second-degree robbery, doubled to two years

5 for the prior strike (Id. §§ 213, subd. (a)(2), 667, subd. (e)(1), 1170.1,

subd. (a));

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(5) a consecutive term of 10 years for personal firearm use in the

7 carjacking (Id. § 12022.53, subds. (a)(5), (b));

(6) a consecutive term of three years four months (one-third the

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10-year term) for personal firearm use in the kidnapping (Id. §§

9 12022.53, subds. (a)(3), (b), 1170.1, subd. (a));

(7) a consecutive term of one year for personal deadly weapon use

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in the second-degree robbery (Id. § 12022, subd. (b)(1)); and

11 (8) a consecutive term of five years for the prior serious felony

conviction (Id. § 667, subd. (a)(1)).

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13 (ECF No. 8-4 at 1-2) (emphasis in original).

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B. The Sentencing Discrepancy, the State Habeas

15 Petition, and Petitioner’s Medical Issues

16 The Sentencing Discrepancy

17 On January 5, 2018, more than 17 years after Petitioner’s sentencing,

18 the CDCR sent a letter to the superior court, which copied Davis, and was

19 received by the court and Davis on January 18, 2018. The letter alerted the

20 court and Davis to a sentencing error regarding the term imposed for the

21 second-degree robbery conviction (explaining it should be 4 months instead of

22 one year), as well as a discrepancy between the sentencing minutes and the

23 abstract of judgment regarding imposition of the five-year serious felony

24 enhancement. (ECF No. 8-4 at 2; ECF No. 1-5 at 3 [CDCR letter describing

25 possible discrepancy]). While the minute order of the 2001 sentencing

26 reflects a “Violation of . . . PC 667(a),” the minutes did not state a specific

1 667(a)(1). (See ECF No. 1-3 at 2 [Minute Order]). The January 2018

2 correspondence sought clarification as to why the five-year enhancement

3 under Penal Code § 667(a)(1) was reflected on the abstract of judgment, but

4 not on the September 11, 2001 minute order. (See ECF No. 1-9 at 5; ECF No.

5 1-5 at 3).

6 On April 25, 2018, the superior court held a resentencing hearing.

7 Petitioner was not informed of the hearing, nor did he meet or talk to the

8 appointed counsel who represented him at the hearing. (ECF No. 1 at 18).

9 At the hearing, the court corrected the sentencing error and issued a new

10 minute order that (1) reduced the enhancement for personal use of a deadly

11 weapon from one year to four months (one-third the prescribed one-year

12 term), (2) specifically listed a consecutive five-year term for his prior serious

13 felony conviction, and (3) reduced the aggregate term from 37 years and four

14 months to 36 years and eight months. (ECF No. 8-4 at 2).

15 The pronouncement of judgment minutes from April 25, 2018 state that

16 Petitioner was not present, and that it was an “UNREPORTED CHAMBER’S

17 CONFERENCE.” (ECF No. 1-6 at 2). The minutes also state: “COURT

18 RECALLS SENTENCE OF 9/11/2001. THIS MINUTE ORDER IS NUNC

19 PRO TUNC TO 09/11/2001.” (Id.). An amended abstract of judgment was

20 filed May 3, 2018. (ECF No. 1-9 at 11-12).

21 On May 9, 2018, Davis received a change of release date from the CDCR

22 explaining there was a “sentence restructure date,” but Davis remained

23 unaware that a hearing had occurred with his appointed counsel present.

24 (ECF Nos. 1 at 8, 1-6 at 3-4 ). On May 15, 2018, Petitioner requested further

25 explanation about the change in his release date. (ECF No. 1 at 8). The

26 CDCR answered him on May 17, 2018, stating there was an amended

1 receive a copy of the amended abstract of judgment at that time. (Id.).

2 Nothing happened in this matter for the next eight months. There was

3 no activity from May 17, 2018 through January 13, 2019.

4 On January 13, 2019, Petitioner made a written request to the CDCR to

5 receive more information about the error in his sentencing. (ECF No. 1-5 at

6 2). The CDCR responded on January 30, 2019, informing Petitioner that an

7 amended abstract of judgment “changed PC 12022(b)(1) from 1 year to 4

8 months,” and that there were “no changes to PC 667(a)(1) for 5 years.” (Id.).

9 The notice to Petitioner attached the original abstract of judgment, the

10 amended abstract of judgment, and the minute order. (Id.).

11 This was the first time Davis understood that a resentencing hearing

12 took place on April 25, 2018 with counsel present. (ECF No. 1 at 9; ECF No.

13 1- 5 at 2). On March 30, 2019, Petitioner retained Spolin Law, P.C. as

14 counsel to review his file and evaluate his options. (Id.).

15 The State Habeas Petition

16 On October 8, 2019, counsel filed a writ of habeas corpus in the

17 Superior Court of San Diego County. (ECF No. 8-1). On December 2, 2019,

18 the superior court denied the petition as untimely and because it failed to

19 establish a prima facie case for relief. (ECF No. 8-2). Petitioner received

20 notice of the superior court’s dismissal of his habeas petition in January

21 2020. The state court held that Davis failed to show how his counsel’s

22 conduct on April 25, 2018 fell below the standard of care required for an

23 ineffective assistance of counsel claim, or how it prejudiced Petitioner,

24 particularly given the admissions Davis made in his plea colloquy. (ECF No.

25 8-2 at 5). Moreover, because the discrepancy was corrected nunc pro tunc to

26 the original minute order, the five-year enhancement under PC 667(a)(1) that

1 On May 28, 2020, Davis filed a state habeas petition in the California

2 Court of Appeal. (ECF No. 8-3). On June 3, 2020, the Court of Appeals

3 denied the petition as untimely. (ECF No. 8-4). The appellate court said

4 Davis was not diligent because he admitted to learning on January 18, 2018

5 that he received a copy of the January 5, 2018 letter identifying errors in his

6 sentence. (Id.). By May 17, 2018, Davis knew that his prison term was

7 reduced and that an amended abstract of judgment existed. (Id.). Yet, Davis

8 waited until March 2019 to hire an attorney, and October 2019 to seek

9 habeas corpus relief. (ECF No. 8-4). The appellate court also found that

10 procedural errors warranted a denial of the petition because Davis had not

11 previously raised his right to be personally present at the April 25, 2018

12 hearing. (Id. at 4-5).

13 Next, the appellate court denied the petition on the merits, explaining

14 that Davis did not have the right to be present at the April 25, 2018 hearing

15 because the corrections to his sentence were minor. (Id. at 4). The petition

16 also failed on its merits because: (1) the enhancement statute at issue was

17 listed in the original minutes (even though the minutes did not explicitly

18 recite imposition of the corresponding five-year enhancement for the prior

19 serious felony conviction); (2) Davis acknowledged understanding that he

20 would be subject to the five-year enhancement when he pled guilty; and (3)

21 the enhancement was mandatory when Davis was sentenced in 2001. (Id.).

22 Finally, the appellate court explained that because courts can amend a

23 judgment to correct clerical errors without a party present, Davis had not

24 advanced any plausible grounds for ineffective assistance of counsel. There

25 was no evidence showing what his attorney did or failed to do. (Id. at 5).

26 On August 10, 2020, Petitioner filed his final state habeas petition,

1 (ECF Nos. 8-5, 8-8). Petitioner then retained Emry J. Allen as new counsel

2 on November 1, 2021. (ECF No. 16 at 22).

3 Petitioner’s Medical Issues

4 Petitioner began to experience serious medical problems on September

5 10, 2018, which led to two heart surgeries and multiple transfers in and out

6 of various hospitals, within and outside of the prison system. (ECF No. 1 at

7 9). In January 2019, he was admitted to a hospital outside the prison system

8 and diagnosed with a blood infection and a hole in his heart. (Id.). In

9 February 2019, Petitioner had a heart valve replacement surgery at a

10 hospital outside the prison. (ECF No. 1 at 10).

11 Petitioner was transferred among multiple hospital locations from April

12 2019 through July 2019. (Id.). On August 26, 2019, he underwent a second

13 heart valve replacement surgery, and continued to be transferred among

14 hospitals and prison facilities for health care issues from December 2019

15 through January 2020, when he was sent to a prison facility in Los Angeles

16 for high-risk medical patients. In June 2020 he returned to a regular CDCR

17 facility for a week, and was then moved to a medical prison facility again.

18 (ECF No. 16 at 15 ¶ 30).

19 C. The Federal Habeas Corpus Petition

20 On June 28, 2022, more than one year after the March 30, 2021

21 conclusion of the state habeas petition, the Petitioner filed his federal habeas

22 petition. (ECF No. 1). To support his claim for relief, Petitioner states his

23 rights were violated based on (1) a constitutional right to confrontation under

24 the Sixth Amendment, to be present at his own re-sentencing, and (2) his

25 attorney’s ineffective assistance of counsel. (ECF No. 1 at 13-25).

26 Respondent’s motion to dismiss followed on October 6, 2022. (ECF No. 7).

1 III. LEGAL STANDARD

2 Rule 4 of the Rules Governing Section 2254 Cases in the United States

3 District Courts expressly permits a district court to dismiss a habeas petition

4 “[i]f it plainly appears from the petition and any attached exhibits that the

5 petitioner is not entitled to relief in the district court[.]” Rules Governing §

6 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254; see also O’Bremski v. Maass, 915

7 F.2d 418, 420 (9th Cir. 1990) (“[R]ule 4 of the Rules Governing Section 2254

8 in the United States District Courts ‘explicitly allows a district court to

9 dismiss summarily the petition on the merits when no claim for relief is

10 stated.’”); Purdy v. Bennett, 214 F. Supp. 2d 348, 353 (S.D.N.Y. 2002)

11 (applying Rule 12(b)(6) standards to motion to dismiss authorized by court

12 pursuant to Rule 4 of the Rules Governing § 2254 Cases). The Advisory

13 Committee Notes to Rule 8 also indicate that the court may deny a petition

14 for writ of habeas corpus, either on its own motion under Rule 4, pursuant to

15 the respondent’s motion to dismiss, or after an answer to the petition has

16 been filed.

17 In ruling on a motion to dismiss, the court “must accept factual

18 allegations in the [petition] as true and construe the pleadings in the light

19 most favorable to the non-moving party.” Fayer v. Vaughn, 649 F.3d 1061,

20 1064 (9th Cir. 2011) (quoting Manzarek v. St. Paul Fire & Marine Ins. Co.,

21 519 F.3d 1025, 1030 (9th Cir. 2008)). In general, exhibits attached to a

22 pleading are “part of the pleading for all purposes.” Hartmann v. Cal. Dept. of

23 Corr. and Rehab., 707 F.3d 1114, 1124 (9th Cir. 2013) (quoting Fed. R. Civ. P.

24 10(c)).

25 IV. DISCUSSION

26 Respondent moves to dismiss the Petition as untimely and argues the

1 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) because no

2 statutory tolling occurred before the limitations period expired, and there is

3 no basis for equitable tolling. (ECF No. 7-1 at 7-9). Respondent asserts that

4 because Petitioner did not appeal his April 25, 2018 judgment, the limitations

5 period started to run 60 days later, on June 24, 2018, and expired one year

6 later on June 24, 2019. Cal. R. Ct. 8.308(a) (appeal required within 60 days

7 after rendition of judgment); see also § 2244(d)(1)(A); Wixom v. Washington,

8 264 F.3d 894, 897 (9th Cir. 2001) (“one-year limitations period ‘shall run from

9 the latest of - (A) the date on which the judgment became final by the

10 conclusion of direct review or the expiration of the time for seeking such

11 review.’”). Respondent argues the petition must be dismissed because it was

12 filed three years later, on June 28, 2022. Respondent maintains that, even if

13 Petitioner is entitled to a later start date for commencement of his statute of

14 limitations, and if equitable tolling could apply, this matter is still untimely

15 because Petitioner retained counsel on March 30, 2019, concluded his state

16 petition on March 30, 2021, but did not file this Petition until June 28, 2022.

17 (ECF No. 7 at 7-9).

18 Petitioner counters that he is entitled to statutory and equitable tolling

19 through the time of his filing here based on: (1) a properly filed state

20 petition; (2) his serious medical condition; (3) the national pandemic; (4) his

21 counsel’s faulty calculation of the applicable period of limitations; and (5) the

22 state’s misconduct. (ECF No. 16). As to both statutory and equitable tolling,

23 Petitioner bears the burden of demonstrating that AEDPA’s limitations

24 period was sufficiently tolled. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)

25 (equitable tolling); Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002) (as

26 amended) (statutory tolling), abrogation on other grounds recognized by

1 A. Commencement of the Statute of Limitations

2 The instant Petition was filed on June 28, 2022 and is subject to

3 AEDPA, which provides a one-year statute of limitations for filing a habeas

4 corpus petition in federal court, unless a petitioner can show that statutory or

5 equitable tolling applies. See Pace, 544 U.S. at 410 (citing 28 U.S.C. §

6 2244(d)(1)); see also Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002) (“A

7 petition can also be timely, even if filed after the one-year period has expired,

8 when statutory or equitable tolling applies.”).

9 This one-year statute of limitations period begins to run on the latest of:

10 (A) the date on which the judgment became final by the conclusion

of direct review or the expiration of the time for seeking such

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review (i.e., date of final judgment);

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(B) the date on which the impediment to filing an application

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created by State action in violation of the Constitution or laws of

14 the United States is removed, if the applicant was prevented from

filing by such State action (i.e., governmental interference);

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16 (C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has been

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newly recognized by the Supreme Court and made retroactively

18 applicable to cases on collateral review (i.e., new right made

retroactive); or

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20 (D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

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diligence (i.e., new factual predicate).

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See 28 U.S.C. § 2244(d)(1) (emphasis added); see Pace, 544 U.S. at 416 n.6.

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Petitioner claims that commencement of his statute of limitations could

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not occur until at least January 30, 2019, when he was served with a copy of

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the amended abstract of judgment. (ECF No. 16 at 3-4). According to

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Petitioner, that is the date on which the factual predicate of his claims could

1 have been discovered pursuant to § 2244(d)(1)(D) because that it was when

2 he received documentation that specifically disclosed his April 25, 2018

3 resentencing and his appointed counsel’s appearance on his behalf. (Id.).

4 The “due diligence” clock that commences the statute of limitations

5 under § 2244(d)(1)(D) starts ticking when a person knows or through

6 diligence could discover the vital facts surrounding the factual predicate of

7 the claim, regardless of when their legal significance is actually discovered.

8 See Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (citations omitted).

9 Although § 2244(d)(1)(D)’s due diligence requirement is an objective

10 standard, a court considers petitioner’s particular circumstances. Id. at 1235-

11 36 (citing Wood v. Spencer, 487 F.3d 1, 5 (1st Cir. 2007) (holding that due

12 diligence under § 2244(d)(1)(D) is an objective test); Schlueter v. Varner, 384

13 F.3d 69, 75 (3rd Cir. 2004) (considering petitioner’s physical confinement and

14 familial assistance in determining due diligence) (citations omitted)).

15 The Ninth Circuit applied § 2241(d)(1)(D) to an ineffective assistance of

16 counsel claim in Hasan v. Galaza, where the triggering event to a statute of

17 limitations concerned a long-term romantic relationship between a

18 prosecution witness and another person who was accused of juror tampering

19 in Hasan’s trial. Hasan v. Galaza, 254 F.3d 1150, 1153 (9th Cir. 2001).

20 Hasan argued on appeal that his limitations period did not commence until

21 years after his trial when he obtained an affidavit from the prosecution

22 witness admitting to the romantic relationship, which the defense had not

23 known, and the prosecution had denied, during Hasan’s trial. See id.

24 (remanding for further factual findings about when, with the exercise of due

25 diligence, the petitioner could have learned about the improper romantic

26 relationship involved in his trial).

1 Applying the tolling provision of § 2244(d)(1)(D), the Ninth Circuit

2 explained that in order “to have the factual predicate for a habeas petition

3 based on ineffective assistance of counsel, a petitioner must have discovered

4 (or with the exercise of due diligence could have discovered) facts suggesting

5 both unreasonable performance and resulting prejudice.” Hasan, 254 F.3d at

6 1154. The distinguishing issue in that case was that Hasan could not have

7 discovered any entitlement to a new trial until the witness against him

8 admitted the romantic relationship establishing the prejudice required by

9 Strickland v. Washington, 466 U.S. 668, 687-91, 694 (1984) (ineffective

10 assistance claim requires proof counsel’s performance was unreasonable, and

11 but for counsel’s errors, result would have been different). Whereas here, by

12 May 17, 2018, Petitioner knew that his sentence was recalculated, reduced,

13 and that an amended abstract of judgment entered. He could and should

14 have exercised due diligence at that time.

15 Petitioner admits to receiving CDCR’s written communication about a

16 possible sentencing error on January 18, 2018. (ECF No. 1 at 6-7). By May

17 17, 2018, he learned that his sentence was restructured and reduced. He

18 argues that such knowledge did not trigger diligence or the start of his

19 statute of limitations because he was not alerted to a resentencing in

20 absentia with an appointed counsel until he saw documents from the

21 resentencing in January 2019. (ECF No. 16 at 3).

22 Respondent rightly contends that Petitioner could have discovered the

23 factual predicate of his claims through the exercise of due diligence as soon as

24 he “knew something had happened” that moved his release to an earlier date.

25 (Id.). Respondent cites Ford v. Gonzales, 683 F.3d at 1235 as instructive.

26 In Ford, the Ninth Circuit explained that the prisoner should have

1 favorable deal for testifying because Ford was present at his own trial where

2 aspects of the witness’s cooperation with the government were openly

3 discussed. (ECF No. 7-1 at 6). The factual predicate for Ford’s ineffective

4 assistance of counsel claim could have been discovered at the time of the trial

5 had the inmate exercised due diligence. Ford, 683 F.3d at 1236.

6 Petitioner’s attempt to distinguish Ford v. Gonzalez from the facts here

7 falls short. See 683 F.3d at 1236. The Ford court found that petitioner could

8 and should have drawn speculative inferences about benefits the adverse

9 witness received in exchange for testifying at the time of his trial. Id.

10 Similarly, here, Petitioner knew enough about the factual predicate of

11 his claim on May 17, 2018 to trigger his exercise of due diligence and the

12 ticking of his statute of limitations clock under § 2244(d)(1)(D). (ECF No. 7-1

13 at 6-7). Despite knowing a resentencing calculation occurred, for reasons

14 unknown to the Court, and unexplained by Petitioner, he waited until

15 January 13, 2019 to ask for documentation associated with his sentence

16 reduction. He received that documentation promptly from the CDCR on

17 January 30, 2019. Petitioner blames the CDCR for not providing

18 documentation to him earlier. (ECF No. 16 at 3-4).

19 Nothing CDCR did or failed to do prompted Petitioner to act in January

20 2019; he simply was not diligent from May 2018 to January 2019. He offers

21 no reason why he failed to take any action from May 17, 2018 through the

22 onset of his illness September 10, 2018. Once Petitioner asked CDCR for

23 documentation associated with his resentencing, he promptly discovered

24 more details about the nature of his claim, which he attempts to characterize

25 as the triggering event for this Petition.

26 The Ninth Circuit has made clear that a petitioner does not need to

1 limitations clock starts ticking. Hasan, 254 F.3d at 1154 n.3 (“Time begins

2 when the prisoner knows (or through diligence could discover) the important

3 facts, not when the prisoner recognizes their legal significance.”) (citation

4 omitted). Here, Petitioner’s May 17, 2018 knowledge that his sentence was

5 reduced, and that an amended abstract of judgment entered, was sufficient to

6 trigger his due diligence and start the clock ticking on his statute of

7 limitations. He did not file a state habeas petition until almost 17 months

8 later, on October 8, 2019.

9 Even if the Court accepted Petitioner’s point of view that the statute of

10 limitations clock did not start ticking until January 30, 2019, when he

11 received the documentation that caused him to realize the April 25, 2018

12 resentencing hearing occurred and that appointed counsel was present, it

13 would not change the result here for two reasons. First, commencing the

14 statute of limitations on January 30, 2019, would not change the state’s

15 dismissal of Petitioner’s habeas petition as untimely. The state’s dismissal of

16 the petition as untimely precludes application of statutory tolling while that

17 case was ongoing with the state from October 8, 2019 to March 30, 2021. See

18 infra at 16-18.

19 Second, even assuming the federal clock was tolled until completion of

20 the state habeas proceedings on March 30, 2021, Petitioner still did not file

21 his federal habeas petition until June 28, 2022 – 90 days beyond the one-year

22 limitations period. While brief portions of that time are subject to equitable

23 tolling, it is not nearly enough to render his federal petition timely. See infra

24 at 18-29.

25 Before addressing Petitioner’s equitable tolling arguments, the Court

26 first explains why statutory tolling cannot apply.

1 B. Statutory Tolling Does Not Apply to Petitions that are

Untimely Under State Law

2

3 The AEDPA includes a statutory tolling provision which suspends the

4 statute of limitations period for the time during which a “properly filed”

5 application for post-conviction or other collateral review is “pending” in state

6 court. 28 U.S.C. § 2244(d)(2); Pace, 544 U.S. at 410. When it applies, the

7 “AEDPA’s statutory tolling provision applies to ‘all of the time during which a

8 state prisoner is attempting, through proper use of state court procedures, to

9 exhaust state court remedies with regard to a particular post-conviction

10 application.’” Sasser v. Koenig, No. CV 21-1396 JGB (PVC), 2021 WL

11 3111850, at *4 (C.D. Cal. July 22, 2021) (quoting Harris v. Carter, 515 F.3d

12 1051, 1053 n.3 (9th Cir. 2008)).

13 “Applying these principles to California’s post-conviction procedure . . .

14 the statute of limitations is tolled from the time the first state habeas

15 petition is filed until the California Supreme Court rejects the petitioner’s

16 final collateral challenge.” Harris, 515 F.3d at 1053 n.3; see also Carey v.

17 Saffold, 536 U.S. 214, 217–23 (2002) (under California’s “original writ”

18 system, an application for state collateral review is “pending” in the state

19 courts so as to toll the federal statute of limitations during the interval

20 between a lower court’s decision and the filing of a further original

21 state habeas petition in a higher court). Here, if it applied, the statute of

22 limitations would be tolled from October 8, 2019 to March 30, 2021.

23 There is no statutory tolling for a state court petition that is filed after

24 the one-year federal limitations period has expired. Ferguson v. Palmateer,

25 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) does not permit the

26 reinitiation of the limitations period that has ended before the state petition

1 habeas petition after the AEDPA statute of limitations expired “resulted in

2 an absolute time bar” to refiling after state claims are exhausted).

3 Moreover, a petition rejected by the state court as untimely is not

4 considered “properly filed” and does not toll the limitations period. Trigueros

5 v. Adams, 658 F.3d 983, 988 (9th Cir. 2011); Pace, 544 U.S. at 413-14 (“When

6 a postconviction petition is untimely under state law, ‘that is the end of the

7 matter’ for purposes of § 2244(d)(2).”). In Bonner v. Carey, 425 F.3d 1145 (9th

8 Cir. 2005), amended, 439 F.3d 993 (9th Cir.), the Ninth Circuit held that a

9 state petition which is ultimately dismissed by California courts as untimely

10 was neither “properly filed” nor “pending” during the time it was under

11 consideration by the state courts. Bonner, 425 F.3d at 1149 (concluding that

12 under Pace, “if the petition was untimely under California law, it was never

13 properly filed,” and rejecting the proposition that statutory tolling is

14 available when the state court denies a post-conviction petition both on the

15 merits and as untimely), as amended, 439 F.3d 993 (citing Saffold, 536 U.S.

16 at 225-26).

17 Petitioner argues that statutory tolling applies from the time he filed

18 his state petition on October 8, 2019 to the date of his final adjudication by

19 the California Supreme Court on March 30, 2021. (ECF No. 16 at 5-6).

20 There are two problems with that position: (1) the October 8, 2019 petition

21 was filed more than a year after the federal statute of limitations period

22 commenced on May 17, 2018; and (2) the state superior court and appellate

23 court both held that Davis’s state petition was untimely under state law.

24 (ECF No. 8-2 at 4-5 [superior court’s 12/2/2019 untimeliness finding]; ECF

25 No. 8-4 at 3 [appellate court’s 6/3/2020 untimeliness finding]). See generally

26 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (recognizing that

1 toll or revive the expired limitations period); Jiminez v. Rice, 276 F.3d 478,

2 482 (9th Cir. 2001) (filing a state habeas petition after the federal statute of

3 limitations had expired “resulted in an absolute time bar”).

4 Even if the statute of limitations did not commence until January 30,

5 2019 as Petitioner argues, and the October 8, 2019 habeas petition could be

6 deemed filed within the requisite one-year federal limitations period,

7 statutory tolling still could not apply because the state courts found the

8 petition untimely. That was the end of the matter. Pace, 544 U.S. at 414.

9 More importantly, however, even if Petitioner could qualify for

10 statutory tolling despite the state court’s untimeliness findings, the clock

11 would have been tolled from only October 8, 2019 to March 30, 2021.

12 Because this federal Petition was not filed until 15 months later, on June 28,

13 2022, it is still untimely, unless equitable tolling can apply.

14

C. Equitable Tolling Applies, In Part, As a Result of

15 Petitioner’s Illness and Pandemic Delays, But Not As a

Result of Attorney Miscalculations or State Misconduct

16

17 Equitable tolling is appropriate when a petitioner can show “(1) that he

18 has been pursuing his rights diligently, and (2) that some extraordinary

19 circumstance stood in his way and prevented timely filing.” Holland v.

20 Florida, 560 U.S. 631, 649 (2010) (quotation omitted); Pace, 544 U.S. at 418.

21 Both elements must be met. Id.

22 “The petitioner must show that ‘the extraordinary circumstances were

23 the cause of his untimeliness and that the extraordinary circumstances made

24 it impossible to file a petition on time.’” Porter v. Ollison, 620 F.3d 952, 959

25 (9th Cir. 2010) (quoting Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009)).

26 “[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very

1 1063, 1066 (9th Cir. 2002) (quotation and citation omitted). This high

2 standard exists to effectuate “AEDPA’s statutory purpose of encouraging

3 prompt filings in federal court in order to protect the federal system from

4 being forced to hear stale claims.” Guillory v. Roe, 329 F.3d 1015, 1018 (9th

5 Cir. 2003) (quotation and citation omitted).

6 “To apply the doctrine in extraordinary circumstances necessarily

7 suggests the doctrine’s rarity, and the requirement that extraordinary

8 circumstances stood in [petitioner’s] way suggests that an external force must

9 cause the untimeliness, rather than ... merely oversight, miscalculation or

10 negligence on the petitioner’s part, all of which would preclude the

11 application of equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d

12 1008, 1011 (9th Cir. 2009) (quotation and citation omitted); accord Miles v.

13 Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (“equitable tolling is unavailable

14 in most cases”).

15 To demonstrate the first requirement for equitable tolling, diligence, the

16 petitioner must show that “he has been reasonably diligent in pursuing his

17 rights not only while an impediment to filing caused by an extraordinary

18 circumstance existed, but before and after as well, up to the time of filing his

19 claim in federal court.” Smith v. Davis, 953 F.3d 582, 598-99 (9th Cir. 2020)

20 (en banc). Here, the Court has already questioned Petitioner’s diligence, but

21 it will assume Davis acted diligently for purposes of the equitable tolling

22 analysis because additional timeliness issues preclude his Petition regardless

23 of this consideration.

24 The second equitable tolling requirement is a causation requirement.

25 Id., 953 F.3d at 600. A petitioner must establish not only the existence of an

26 extraordinary circumstance but also that it was, in fact, the cause of the

1 796, 799 (9th Cir. 2003); see also Bryant v. Arizona Att. Gen., 499 F.3d 1056,

2 1061 (9th Cir. 2007) (a petitioner must show that the claimed extraordinary

3 circumstances were the cause of his untimeliness). “[I]t is only when an

4 extraordinary circumstance prevented a petitioner acting with reasonable

5 diligence from making a timely filing that equitable tolling may be the proper

6 remedy.” Davis, 953 F.3d at 600.

7 Medical Issues

8 Petitioner contends the statute of limitations should be tolled based on

9 his serious medical issues, particularly because he blames the state and the

10 prison system for his medical complications, which he is challenging through

11 an independent civil rights action against CDCR. (See ECF No. 16 at 4-5, 13-

12 14, Ex. 1 [excerpts from civil rights complaint]). His separate civil rights

13 action maintains, and the Court will assume as true for purposes of the

14 current motion to dismiss, that despite the CDCR knowing that Petitioner

15 had a congenital heart murmur that necessitated prophylactic antibiotics

16 before dental care, prison medical staff failed to provide that medication,

17 which led to serious health complications from September 2018 through June

18 2020. (ECF No. 16 at 13-14).

19 Petitioner’s medical problems began on September 10, 2018 when he

20 complained about pain from an abscessed tooth. (ECF No. 16 at 13). The

21 problem escalated when the Petitioner failed to receive proper medication.

22 (Id.). His condition worsened considerably until he was transferred outside of

23 the prison system, where he received the first of two heart surgeries on

24 February 10, 2019. (Id. at 14). He continued to be transferred among

25 facilities for medical care, then underwent a second heart surgery, and was

26 not returned to the regular prison population until early June 2020. (Id. at

1 ability to receive timely information about his sentencing issue. (ECF No. 16

2 at 5, 14-15). The Court finds that two heart surgeries and multiple transfers

3 to various medical facilities for care constitute extraordinary circumstances

4 outside Petitioner’s control that prevented him from taking important steps

5 in this case. Accordingly, a portion of that time warrants tolling.

6 Petitioner does not plead or articulate how his medical problems caused

7 delays or complications once he retained counsel on March 30, 2019. He also

8 does not allege any misconduct by his state habeas counsel that would

9 warrant additional equitable tolling. Instead, he asks the Court to toll

10 additional months beyond March 30, 2019 to coincide with time his attorney

11 needed to investigate his case. (ECF No. 16 at 7).

12 To support his medical tolling argument, Petitioner cites two capital

13 habeas cases. First, is Kennedy v. Warden, 2:13-cv-0204111 LKK KHN DP,

14 2014 WL 1513371, at *9 (E.D. Cal. April 16, 2014), where the court

15 recommended equitable tolling in a death penalty case with respect to the

16 120-day period between petitioner’s initial filing and his right to appointed

17 counsel. That case is readily distinguishable from the facts here because that

18 was a death penalty case, and the petitioner was entitled to appointment of

19 counsel, which is not so in this § 2254 petition. See Bonin v. Vasquez, 999

20 F.2d 425, 429 (9th Cir. 1993) (no constitutional right to appointment of

21 counsel in proceedings on a petition for writ of habeas corpus by a state

22 prisoner pursuant to 28 U.S.C. § 2254). Second, Kennedy was a “particularly

23 complex” case because the state petition was voluminous, including nearly

24 600 pages, 90 separate claims and sub-claims, many claims of ineffective

25 assistance of counsel for the guilt and penalty phases of trial; that petition

26 also included claims that trial counsel acted under a conflict of interest, and

1 Next, Petitioner relies on another capital case, Brown v. Davis, 482 F.

2 Supp. 3d 1049 (E.D. Cal. Aug. 27, 2020), which is similarly distinguishable

3 and unhelpful here. There, after petitioner’s 1996 state conviction and death

4 sentence were affirmed on direct appeal, and his state habeas petition was

5 denied in 2012 and 2019, he filed a pro se request for appointed counsel in

6 2019 and sought prospective equitable tolling based in part on the pandemic.

7 Id. That indigent capital habeas petitioner had post-conviction counsel who

8 delayed the habeas petition for more than three months, and the

9 appointment of new counsel took an additional six weeks. Id. The lack of

10 appointed counsel was an extraordinary circumstance there “given the time

11 passed since the crime, the complexity of issues, the voluminous record, the

12 extensive required investigation, and petitioner’s possible incompetency and

13 mental health issues.” Brown, 482 F. Supp. 3d at 1054.

14 Here, Petitioner has not shown a voluminous record, case complexity, or

15 work to be done that rises to the extraordinary level required to apply

16 equitable tolling for his counsel to investigate and research in this non-

17 capital case. Accordingly, regardless of Petitioner’s medical issues, the Court

18 recommends that tolling due to medical problems would cease, and the clock

19 would start ticking again when the Petitioner retained Spolin Law P.C. as

20 counsel on March 30, 2019. Despite Petitioner’s medical issues his counsel

21 moved forward with the case, filing the state petition six months later.

22 Delays from medical complications ceased to be extraordinary once

23 Petitioner’s counsel began acting on his behalf.

24 The Court recommends that equitable tolling apply from September 10,

25 2018 to March 30, 2019, because, despite his extraordinary medical

26 conditions, Petitioner exhibited diligence by pursuing documentation from

1 state habeas petition in October 2019. Tolling should cease, however, once

2 Petitioner obtained counsel on March 30, 2019.

3 As such, this Court finds that Petitioner’s statute of limitations ran

4 from the time it commenced on May 17, 2018 until his medical problems

5 arose on September 10, 2018, which is 116 days. It was then tolled for

6 medical problems from September 10, 2018 through March 30, 2019. The

7 statute of limitations clock then ran again from March 30, 2019 to at least

8 the time Petitioner filed his state habeas writ on October 8, 2019, which is an

9 additional 192 days. Whether or not statutory tolling would apply to

10 Petitioner’s claim (and the Court finds that it does not), Petitioner’s statute of

11 limitations clock had already run for 308 days before he ever filed his state

12 petition.

13 Petitioner next contends that equitable tolling should apply based on

14 delays associated with the COVID-19 pandemic, which the Court agrees with

15 to a very limited extent.

16 Pandemic Delays

17 Extraordinary circumstances due to COVID-19 will only be found where

18 a petitioner “sets forth ‘fact-specific circumstances related to the pandemic

19 that hindered his ability to timely file a habeas petition.’” Valles v. Allison,

20 21-CV-819-GPC-WVG, 2022 WL 3327386, at *4–5 (S.D. Cal. Aug. 11, 2022)

21 (citation omitted); see Dones v. Allison, No. 22CV282-MMA(BLM), 2022 WL

22 17979758, at *5 (S.D. Cal. Dec. 28, 2022) (refusing equitable tolling based on

23 pandemic where petitioner did not explain how prison library was limited,

24 the length of restrictions, how he attempted to access the law library or

25 obtain legal research materials, how the lack of access to the library, phone

26 calls, and standard mail impeded his ability to timely file his petition, or

1 paging system, or whether he tried to utilize those systems, and if they were

2 insufficient).

3 Petitioner argues that pandemic tolling should apply throughout the

4 time he was represented by counsel, which would include the start of the

5 pandemic in February 2020 through his filing of this Petition in June 2022.

6 (ECF No. 16 at 6-8). He again relies on the capital habeas case, Brown v.

7 Davis, to support his position. As stated earlier, that court addressed

8 prospective equitable tolling in a death penalty case where the petitioner and

9 counsel demonstrated continued diligence during the early phases of the

10 pandemic, prospectively through June 1, 2021. The Brown court explained

11 that much of the time at issue included courthouse closures and the

12 imposition of emergency rules that suspended the 70-day period required for

13 bringing criminal defendants to trial. Brown, 482 F. Supp. 3d at 1059-60.

14 Here, before the pandemic, Petitioner’s statute of limitations clock had

15 been ticking for 308 days. Current counsel summarily states that she was

16 “severely delayed by handicaps visited upon the institutions, counsel, and

17 courts by the pandemic.” (ECF No. 16). She offers only three fact-specific

18 examples of delays experienced in 2022: (1) an undefined delay in gaining

19 gate clearance at the prison, dated March 18, 2022 (ECF No. 16 at 19); (2) a

20 30-day delay in scheduling a call between counsel and Petitioner from March

21 1, 2022 to March 30, 2022 (ECF No. 16 at 17); and (3) a two-week delay in

22 confidential calls due to a COVID outbreak quarantine in November 2022 –

23 five months after the federal petition was filed. (See ECF No. 16 at 20).

24 “There is scant legal authority analyzing whether the COVID-19

25 pandemic constitutes an extraordinary circumstance that merits equitable

26 tolling of habeas corpus claims.” Valles, 2022 WL 3327386, at *4–5; see also

1 Sept. 15, 2022). To date, courts within the Ninth Circuit have concluded that

2 “[t]he COVID-19 pandemic, in itself, ‘does not automatically warrant

3 equitable tolling for any petitioner who seeks it on that basis.’” Cervantes v.

4 Cisneros, 2:22-cv-00367-SSS-MAA, 2022 WL 4082488, at *5 (C.D. Cal. July

5 28, 2022) (quotations and citations omitted).

6 Some courts have found that restrictions related to COVID-19 can

7 constitute an “extraordinary circumstance” warranting some limited amount

8 of equitable tolling. See, e.g., Carter v. United States, No. 20-1654 MJP, 2021

9 WL 1978697, at *4 (W.D. Wash. May 18, 2021) (finding that circumstances

10 presented by COVID-19 restrictions prevented petitioner from filing petition

11 one month earlier); McWhorter v. Davis, No. 20-0215 NONE, 2021 WL

12 5639209, at *4 (E.D. Cal. Dec. 1, 2021) (finding that equitable tolling was

13 warranted because the “petitioner has demonstrated that notwithstanding

14 counsel’s ongoing reasonable diligence, exceptional circumstances raised by

15 the ongoing COVID-19 pandemic continue to impede the investigation,

16 development, and presentation of a complete federal habeas petition”).

17 The Court recognizes that the pandemic has made communication and

18 legal work more difficult for everyone, but conclusory statements about

19 delays and difficulties will not toll the statute of limitations. See Valles, 2022

20 WL 3327386, at *4–5 (“general ‘claims of prison lockdowns and lack of access

21 to the prison law library as a result of the COVID-19 pandemic alone are

22 insufficient to amount to extraordinary circumstances’ for equitable tolling

23 purposes.’”) (quoting Dragasits v. Covello, No. 3:21-cv-1459-CAB-MDD, 2022

24 WL 207730, at *7 (S.D. Cal. Jan. 24, 2022) (citing Shephard v. Asuncion, CV

25 21-4147-JWH(E), 2021 WL 6496744, at *10 (C.D. Cal. Nov. 3, 2021) (finding

26 petitioner was not entitled to equitable tolling during alleged “total

1 Sholes v. Cates, 1:21-cv-01006-DAD-HBK, 2021 WL 5567381, at *4 (E.D. Cal.

2 Nov. 29, 2021) (concluding prisoner not entitled to equitable tolling during

3 COVID outbreak which caused the law library to be closed “for months” and

4 thereafter open with only limited access)).

5 At best, Petitioner attributes six weeks to pandemic delays, but two of

6 those weeks occurred after the federal petition was already filed and thus do

7 not qualify for tolling here. To the extent Petitioner asks the Court to apply a

8 general unlimited period of tolling during the pandemic and post-pandemic

9 proceedings, the Court declines to do so. The Court does find, and will

10 recommend, that equitable tolling should apply as a result of pandemic

11 delays from March 1, 2022 to March 30, 2022, as supported by evidence of the

12 communication delays Petitioner submits. (ECF No. 16 at 16-20). That

13 limited tolling does little to resolve Petitioner’s timeliness problem because

14 the limitations period had already run for 308 days prior to this tolling.

15 Petitioner cannot overcome the statute of limitations problem here,

16 even if the clock did not start ticking until completion of the state habeas

17 petition. Setting aside and excluding any time before the state petition was

18 filed on October 8, 2019, and the time the state petition was pending through

19 March 30, 2021, the Petition must still be dismissed as untimely.

20 Assuming the statute of limitations did not start running until March

21 30, 2021 (when the state habeas litigation concluded), it still ran for 11

22 months before March 1, 2022, when the pandemic tolling of 30 days would

23 occur. Applying 30-days of tolling for pandemic delays, the clock started

24 ticking again on April 1, 2022, and ran to the date of filing here, June 28,

25 2022, another 86 days, and well beyond the one-year statute of limitations

26 required by the AEDPA. Equitable tolling does not render the Petition

1 Counsel’s Inaccurate Calculations

2 Petitioner’s next argument for equitable tolling is his present counsel’s

3 error in miscalculating the habeas filing deadline. (ECF No. 16 at 8-10). He

4 attaches Ms. Allen’s declaration, wherein she explains that she mistakenly

5 advised Davis that his deadline for filing would run one year and 90 days

6 from the denial of relief from the California Supreme Court (the time

7 applicable to file a writ of certiorari with the United States Supreme Court in

8 a capital case). (ECF No. 16 at 22). She asserts that the Petitioner diligently

9 sought a timely petition throughout the duration of her representation. (Id.).

10 The Petitioner relies on Bottomley v. Tilton, No. 07-cv-1973 W (NLS),

11 2008 U.S. Dist. LEXIS 114563 (S.D. Cal. July 7, 2008) to support his position.

12 His reliance there is misplaced, however, as that case expressly acknowledges

13 that an attorney’s “miscalculation of the limitations period . . . in general

14 [does] not constitute extraordinary circumstances sufficient to warrant

15 equitable tolling.” Id. at *5 (citing Frye v. Hickman, 273 F.3d 1144, 1146 (9th

16 Cir. 2001); Miranda v. Castro, 292 F.3d 1063, 1066-68 (9th Cir. 2001)

17 (reiterating Frye’s holding that counsel’s miscalculation and negligence in

18 general do not constitute “extraordinary circumstances” sufficient to warrant

19 equitable relief)).

20 An attorney’s failure to advise a petitioner about post-conviction

21 limitations deadlines does not constitute extraordinary circumstances

22 warranting equitable tolling. See Lawrence v. Florida, 549 U.S. 327, 335-36

23 (2007). Such miscalculation is simply not sufficient to warrant tolling in the

24 post-conviction context where prisoners have no constitutional right to

25 counsel. Id.

26 State Misconduct

1 time before he filed the state habeas petition, when he contends the state’s

2 misconduct delayed his case; he labels that period of time as April 25, 2018 to

3 March 2020. (ECF No. 16 at 2-3). He argues the state should have informed

4 him of the pendency of his resentencing hearing and taken steps to assure he

5 was present. (ECF No. 16 at 3). Petitioner also claims CDCR should have

6 presented documents from his resentencing hearing to him prior to January

7 30, 2019. (ECF No. 16 at 2-3).

8 Petitioner cites two cases to support this position. First, he cites Scott

9 v. Doucart, 17-cv-01290, 2018 U.S. Dist. LEXIS 98720, at * 19-20 (N.D. Cal.

10 2018); second is Barth v. Beard, CV 16-01469-DMG (RAP), 2018 U.S. Dist.

11 LEXIS 221775, at 9 (C.D. Cal. June 25, 2018). (ECF No. 16 at 4). The Scott

12 court simply ordered briefing to determine whether an inmate’s placement in

13 administrative segregation, or the prison’s failure to deliver his property to

14 him, sufficiently alleged a constitutional violation. Scott, 2018 U.S. Dist.

15 LEXIS 98720, at *20-21. In that habeas challenge, the petitioner had not

16 shown that his lack of access to legal documents caused any untimely filings.

17 Id. at *22. Next, in Barth, the court dismissed plaintiff’s § 1983 civil rights

18 claim based on generalized allegations that correctional officers denied his

19 access to the law library, seized legal documents, and obstructed plaintiff’s

20 ability to meet deadlines, send documents, and obtain legal services. Barth,

21 2018 U.S. Dist. LEXIS 221775, at *4-5.

22 Neither of those cases advance Petitioner’s argument that the CDCR

23 engaged in misconduct that warrants tolling the statute of limitations. Such

24 equitable tolling only applies when a petitioner is prevented from asserting a

25 claim as a result of the state’s wrongful conduct. See Stoll v. Runyon, 165

26 F.3d 1238, 1242 (9th Cir. 1999). Here, Petitioner concedes that all he had to

1 13, 2019, the state responded promptly. Nothing changed from May 17, 2018

2 when Petitioner learned of his sentence reduction to January 13, 2019 when

3 he requested documentation. His failure to obtain those documents earlier

4 does not equate to misconduct by the state. The CDCR first alerted Davis to

5 the nature of the suspected error in sentencing when it discovered the issue

6 in January 2018. Once the state corrected the error in his favor, it notified

7 Petitioner by May 17, 2018 that his sentence was reduced, how much it was

8 reduced, why it was reduced, and that an amended abstract of judgment

9 existed. Petitioner presents no facts or law to suggest the CDCR’s conduct

10 warrants tolling.

11 More importantly, as repeatedly explained, even if there were grounds

12 for equitable tolling for state misconduct that extended all the way through

13 March 2020 or March 30, 2021 as Petitioner contends, Petitioner’s delays still

14 extend far beyond any such alleged misconduct.

15 V. CONCLUSION

16 For the foregoing reasons, the Court respectfully RECOMMENDS

17 Respondent’s Motion to Dismiss be GRANTED.

18 This Report and Recommendation is submitted to the United States

19 District Judge assigned to this case. Any party may file written objections

20 with the Court and serve a copy on all parties on or before March 3, 2023.

21 The document should be captioned “Objections to Report and

22 Recommendation.” Any reply to the Objections shall be served and filed on or

23 before March 17, 2023. The parties are advised that failure to file objections

24 within the specified time may waive the right to appeal the District Court’s

25 Order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

26

1 IT IS SO ORDERED.

Dated: February 17, 2023 Mitel bs [>

Hon. Mitchell D. Dembin

4 United States Magistrate Judge

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