# Daniel Wayne Grogan v. California Department of Corrections

> District Court, C.D. California · March 25, 2022

URL: https://www.frixlaw.com/law-library/cases/9979439

## Case

- **Court:** District Court, C.D. California
- **Decided:** March 25, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9979439

## How later opinions describe it (automated extraction)

- finding that the petitioner was not entitled to 15 equitable tolling, because he had not established the requisite diligence

## Opinion text

Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 1 of 12 Page ID #:412

1

2

3

4

5

6

7

8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10

11 DANIEL WAYNE GROGAN,
Case No. 2:21-cv-08233-JAK (GJS)
12 Petitioner,

13 v. FINAL REPORT AND
RECOMMENDATION OF
14 CALIFORNIA DEPARTMENT OF UNITED STATES MAGISTRATE
CORRECTIONS, JUDGE
15
Respondent.
16

17 This Final Report and Recommendation is submitted to the United States
18 District Judge John A. Kronstadt, pursuant to 28 U.S.C. § 636 and General Order
19 No. 05-07 of the United States District Court for the Central District of California.
20
21 INTRODUCTION
22
On October 14, 2021, the Clerk’s Office received and filed a 28 U.S.C. § 2254
23
habeas petition submitted by Petitioner, a state prisoner [Dkt. 1“Petition”]. The
24
Petition stems from his July 23, 2018 conviction in Los Angeles County Superior
25
Court Case No. MA070720 and related sentence (the “State Conviction”). [Petition
26
at 2.]1
27

28
1 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has reviewed the dockets
available electronically for the Los Angeles County Superior Court, the California Court of
Appeal, and the California Supreme Court.
Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 2 of 12 Page ID #:413

1 On December 9, 2021, Respondent filed a motion to dismiss the Petition on
2 the grounds that the Petition failed to name a proper Respondent, is untimely, and
3 does not sufficiently set forth the grounds for relief. [Dkt. 7, “Motion.”] With the
4 Motion, Respondent lodged the relevant portions of the state docket. [Dkt. 8,
5 “Lodg.”] On the same day, the Court issued an Order directing briefing on the
6 Motion and advising Petitioner that, if he contends he is entitled to equitable tolling,
7 he must include with his Opposition a sworn declaration setting forth a detailed
8 description of the nature of any alleged extraordinary circumstances and their effect
9 on his ability to seek timely federal habeas relief. [Dkt. 9, the “December 9 Order”.]
10 Petitioner’s Opposition to the Motion was due by January 13, 2022. As of
11 that date, the Court had not received any such Opposition from Petitioner, nor had it
12 received any request by him for an extension of time.
13 The Motion, thus, was unopposed. On February 7, 2022, the Court issued a
14 Report and Recommendation, in which it concluded that the Petition is untimely and
15 recommended that the Motion be granted and this case be dismissed. [Dkt. 11,
16 “Report.”] On March 4, 2022, Petitioner filed an Objection to the Report. [Dkt. 12,
17 “Objection.”] In his two-page Objection, Petitioner argues that his failure to timely
18 seek federal habeas relief should be excused under the equitable tolling doctrine and
19 he attaches numerous exhibits that he believes support his argument.
20 In his Objection, Petitioner does not explain why he failed to file an
21 Opposition to the Motion and, instead, waited to respond to the Motion until after
22 the Court had concluded its analysis and issued the Report. A district court has
23 discretion, but is not required, to consider evidence or arguments presented for the
24 first time in objections to a report and recommendation. See Brown v. Roe, 279 F.3d
25 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir.
26 2000). While it is inappropriate for Petitioner to raise his opposition arguments for
27 the first time in an objection to a report and recommendation, the Court nonetheless
28 will exercise its discretion in favor of considering the Objection.
2
Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 3 of 12 Page ID #:414

1 The Court now issues this Final Report and Recommendation to address
2 Petitioner’s Objection assertions. The Court again finds that the record clearly
3 shows that the Petition is untimely and that dismissal is warranted on that basis.2
4 The Court, therefore, again recommends that the Motion be granted.
5
6 PRIOR PROCEEDINGS
7 On July 23, 2018, in the State Conviction action Petitioner pleaded no contest
8 to a charge of armed robbery and admitted the truth of firearm use, prior conviction,
9 and prior prison term allegations. The trial court sentenced Petitioner to a total
10 prison term of 25 years to life. [Lodg. No. 1 at ECF #183-#184.]
11 A review of the electronic dockets available for the California Court of
12 Appeal and the California Supreme Court confirms that Petitioner did not appeal his
13 State Conviction and sentence. Instead, four months after his conviction and
14 sentencing, Petitioner mailed a habeas petition to the trial court on November 24,
15 2018.3 [Lodg. No. 2.] After appointing counsel for Petitioner, ordering briefing, and
16 conducting an evidentiary hearing, the trial court denied the petition on July 29,
17 2019. [Lodg. No. 1 at ECF #189-#196.]
18 On September 24, 2019, Petitioner filed a habeas petition in the California
19 Court of Appeal. [Lodg. No. 3.] On October 24, 2019, the California Court of
20 Appeal denied the petition summarily. [Lodg. No. 4.]
21

22 2 The Court declines to address Respondent’s alternative asserted grounds for dismissal.
While the Petition does fail to name a proper respondent and does not adequately plead the habeas
23
claims for which relief is sought, both of these failures could be rectified with amendment. Given
24 that this action plainly is untimely, these alternative grounds for dismissal need not be addressed
and resolved.
25
3 “Under the ‘mailbox rule,’ a pro se prisoner’s filing of a state habeas petition is deemed
26
filed at the moment the prisoner delivers it to prison authorities for forwarding to the clerk of the
27 court.” Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003); see also Rule 3(d) of the
Rules Governing Section 2254 Cases in the United States District Courts. Therefore, giving
28 Petitioner the benefit of the doubt, when the apparent date on which Petitioner mailed any post-
conviction petition is available, the Court has used that presumptive date as the “filing” date.
3
Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 4 of 12 Page ID #:415

1 Almost five months passed. On April 15, 2020, the Clerk’s Office formally
2 filed a 28 U.S.C. § 2254 habeas petition it had received from Petitioner in Case No.
3 2:20-cv-03483-JAK (GJS). On May 8, 2020, District Judge Kronstadt dismissed the
4 action without prejudice, for lack of exhaustion, after Petitioner failed to exercise
5 any of the available options that had been provided to him. [Lodg. Nos. 7-8.]
6 Two months later, on July 8, 2020, Petitioner filed a habeas petition in the
7 California Supreme Court. [Lodg. No. 5.] On October 14, 2020, the California
8 Supreme Court denied the petition summarily. [Lodg. No. 6.]
9 Almost one year later, Petitioner filed the instant Petition. While the proof of
10 service page attached to the Petition and the Petition’s signature page are dated
11 September 26, 2021, Petitioner’s cover letter (in which he states that the Petition was
12 mailed on October 7, 2021) and other documents included with the Petition’s
13 mailing are dated October 7, 2021, and the envelope in which all of those documents
14 were transmitted bears an October 12, 2021 postmark. The Court, therefore, will
15 deem the Petition to have been “filed” pursuant to the mailbox rule on October 7,
16 2021.
17 DISCUSSION
18 Prisoners seeking habeas relief under Section 2254 are subject to a one-year
19 time limit on the filing of petitions, which was adopted to “advance the finality of
20 criminal convictions.” Mayle v. Felix, 545 U.S. 644, 662 (2005). The one-year
21 limitations period is set forth in 28 U.S.C. § 2244(d)(1). This limitations period is
22 subject to a statutory tolling provision, which suspends it for the time during which a
23 “properly-filed” application for post-conviction or other collateral review is
24 “pending” in state court. 28 U.S.C. § 2244(d)(2). Additionally, in certain
25 “extraordinary circumstances” beyond a prisoner’s control, equitable tolling may be
26 available to toll the limitations period. See, e.g., Jorss v. Gomez, 311 F.3d 1189,
27 1192 (9th Cir. 2002) (“A petition can also be timely, even if filed after the one-year
28 period has expired, when statutory or equitable tolling applies.”).
4
Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 5 of 12 Page ID #:416

1 A. The Accrual, And Running, Of Petitioner’s Limitations Period.
2 Through its subparts (A) through (D), Section 2244(d)(1) contemplates four
3 possible triggering dates for the accrual and commencement of a state prisoner’s
4 one-year limitations period. The Supreme Court has described these as follows:
5 § 2244(d)(1) provides that a “1-year period of limitation
shall apply to an application for a writ of habeas corpus.”
6 (Emphasis added.) The subsection then provides one
means of calculating the limitation with regard to the
7
“application” as a whole, § 2244(d)(1)(A) (date of final
8 judgment), but three others that require claim-by-claim
consideration, § 2244(d)(1)(B) (governmental
9 interference); § 2244(d)(1)(C) (new right made
retroactive); § 2244(d)(1)(D) (new factual predicate).
10
Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6 (2005).
11
Usually, a state prisoner’s limitations period will be governed by Section
12
2244(d)(1)(A), and that is the only provision that can govern here based on the facts
13
of record.4 Petitioner’s judgment became “final,” for purposes of Section
14
2244(d)(1)(A), on the date on which his State Conviction became final. Because
15
Petitioner did not appeal following his July 23, 2018 State Conviction and
16
sentencing, his criminal judgment was final on the date his time for seeking review
17
of his conviction expired, which was 60 days later, i.e., on September 21, 2018. See
18
Roberts v. Marshall, 627 F.3d 768, 771 (9th Cir. 2010); Rule 8.308(a) of the
19
California Rules of Court. Thus, Petitioner’s limitations period commenced running
20
on September 22, 2018, and expired on September 21, 2019, absent tolling.
21
22
23
24 4 As discussed infra, in his Objection, Petitioner raises a circumstance that he claim entitles
him to equitable tolling, namely, his March, 2021, through August 2021 incarceration in his
25 institution’s Administrative Segregation Unit. In passing, Petitioner characterizes this
circumstance as “governmental interference” and referenced Section 2244(d)(1)(B) without
26
explanation. While this circumstance properly may be considered in an equitable tolling analysis,
27 it cannot serve as a basis for affording Petitioner with a delayed accrual start for his limitations
period, given that it occurred approximately 18 months after Petitioner’s limitation period would
28 have expired absent statutory tolling.

5
Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 6 of 12 Page ID #:417

1 B. Statutory Tolling
2 28 U.S.C. § 2244(d)(2) suspends the limitations period not only for the time
3 during which a “properly-filed” application for post-conviction relief is “pending” in
4 state court but also, in appropriate circumstances, “during the intervals between the
5 denial of a petition by one court and the filing of a new petition at the next level, if
6 there is not undue delay.” Biggs v. Terhune, 339 F.3d 1045, 1046 (9th Cir. 2003).
7 Continuous tolling under Section 2244(d)(2) – commonly referred to as interval or
8 gap tolling – is available only if a prisoner acted promptly in seeking relief at the
9 next state court level. See Pace, 544 U.S. at 413-14.
10 As noted earlier, Petitioner filed two state court habeas petitions, then filed a
11 federal habeas petition which was dismissed, and then finally sought habeas relief in
12 the state high court. That process commenced on November 24, 2018, when
13 Petitioner filed his trial court habeas petition, and concluded on October 14, 2020,
14 when the California Supreme Court denied habeas relief. The Court has some
15 question about whether Petitioner properly may receive gap tolling throughout this
16 entire period of time, but notes that Respondent has assumed so in the Motion. For
17 the sake of argument, the Court will make that assumption, as doing so or not
18 ultimately makes no difference to the timeliness decision.
19 As of November 24, 2018, Petitioner’s limitations period has been running for
20 63 days, i.e., from September 22, 2018, through November 23, 2018, the day before
21 Petitioner first sought state habeas relief. If he is deemed to be able to receive
22 Section 2244(d)(2) tolling throughout the entirety of November 24, 2018, through
23 October 14, 2020, then when tolling lifted and Petitioner’s limitations period re-
24 commenced running on October 15, 2020, he had 302 days remaining, or until
25 August 12, 2021, in which to timely seek federal habeas relief. As the Petition was
26 “filed” no earlier than October 7, 2021, it was 56 days too late.5 The Petition, thus,
27

28 5 Even if Petitioner’s September 26, 2021 signature date on the Petition is used, the Petition
nonetheless was untimely by 45 days. As set forth above, however, given that his transmittal latter
6
Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 7 of 12 Page ID #:418

1 is untimely absent equitable tolling.
2
3 C. Equitable Tolling Is Not Available.
4 The limitations period for Section 2254 petitions is subject to equitable tolling
5 in appropriate circumstances. Holland v. Florida, 560 U.S. 631, 645-49 (2010).
6 However, application of the equitable tolling doctrine is the exception rather than the
7 norm. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009)
8 (characterizing the Ninth Circuit’s “application of the doctrine” as “sparing” and a
9 “rarity”); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (“equitable tolling is
10 unavailable in most cases”). A habeas petitioner may receive equitable tolling only
11 if he “shows ‘(1) that he has been pursuing his rights diligently, and (2) that some
12 extraordinary circumstance stood in his way’ and prevented timely filing.” Holland,
13 560 U.S. at 649 (citation omitted); see also Pace, 544 U.S. at 418 & n.8. Both
14 elements must be met. Id. at 418 (finding that the petitioner was not entitled to
15 equitable tolling, because he had not established the requisite diligence). A
16 petitioner seeking application of the doctrine bears the burden of showing that it
17 should apply to him. Id.; see also Lawrence v. Florida, 549 U.S. 327, 336 (2007) (to
18 receive equitable tolling, the petitioner must prove the above two requirements).
19 In order to demonstrate the first requirement for equitable tolling, diligence,
20 the petitioner must show that “he has been reasonably diligent in pursuing his rights
21 not only while an impediment to filing caused by an extraordinary circumstance
22 existed, but before and after as well, up to the time of filing his claim in federal
23 court.” Smith v. Davis, 953 F.3d 582, 598-99 (9th Cir. 2020) (en banc).
24 The second equitable tolling requirement is a causation requirement. Davis,
25 953 F.3d at 597, 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 untimely
27

28 and other documents sent with the Petition are dated October 7, 2021, that date is a more
appropriate “filed” date under the mailbox rule.
7
Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 8 of 12 Page ID #:419

1 filing of the federal habeas petition. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th
2 Cir. 2003); see also Bryant v. Arizona Att. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007)
3 (a petitioner must show that the claimed extraordinary circumstances were the cause
4 of his untimeliness); Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (the
5 extraordinary circumstance claimed must be the cause of the petition’s
6 untimeliness). “[I]t is only when an extraordinary circumstance prevented a
7 petitioner acting with reasonable diligence from making a timely filing that equitable
8 tolling may be the proper remedy.” Davis, 953 F.3d at 600. “A petitioner must
9 show that his untimeliness was caused by an external impediment and not by his
10 own lack of diligence.” Bryant, 499 F.3d at 1061.
11 Despite the December 9 Order advising Petitioner of the equitable tolling
12 doctrine and what he must do to invoke it, Petitioner did not oppose the Motion.
13 Instead, Petitioner waited until after the Court issued its Report and
14 Recommendation to first raise the following equitable tolling argument, without
15 offering any explanation for his failure to oppose the Motion. In his Objection,
16 Petitioner contends that he is entitled to receive equitable tolling, because he was “in
17 the hole” from March 1, 2021, through August 25, 2021. He asserts that, during that
18 approximately six months long period of time, he lacked access to any of his legal
19 paperwork, had no ability to obtain the Court’s address, and had nothing more than a
20 bible with him. He contend that, as a result, it was “impracticable” and “impossible”
21 for him to file a timely federal habeas petition.
22 Petitioner’s assertions are not made under penalty of perjury, and thus, lack
23 evidentiary value except to the extent they are corroborated by the documents he has
24 attached to the Objection. These documents show that Petitioner was not “in the
25 hole,” as he asserts but, rather, was placed in his institution’s Administrative
26 Segregation Unit (“ASU”) on March 1, 2021, and was returned to general population
27 on August 25, 2021. Petitioner was placed in the ASU due to a pending charge that
28 he committed an act of misconduct, namely, battery with a weapon capable of
8
Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 9 of 12 Page ID #:420

1 causing serious injury, which had been referred to the local District Attorney’s
2 Office for possible criminal prosecution. [Objection at 3, 6, 8-9, 12.] On the date
3 Petitioner was placed in the ASU, his personal property he was “authorized to
4 retain” was inventoried, and the inventory listed various personal items and a “bag
5 of misc. paperwork.” [Id. at 13.] The remainder of the documents attached to the
6 Objection consist of an incident report package for the battery charge and a copy of
7 the Court’s Report and Recommendation in this case.
8 Contrary to Petitioner’s assertion, the documents he has appended to his
9 unsworn Objection do not establish that he lacked access to legal paperwork or court
10 addresses during the six months he spent in the ASU. Under 15 CCR § 3343(a),
11 prisoners in the ASU are to be afforded confinement conditions that “approximate
12 those of the general population” consistent with security and safety issues. Under
13 Section 3343(i), ASU inmates are permitted to obtain and possess the same reading
14 materials as general population inmates, although the quantity may be limited for
15 safety and security reasons. Under Section 3343(k), ASU inmates “shall be
16 permitted to participate in and have access to” institutional programs, including
17 “library services,” again as is consistent with security and safety issues.6 “California
18 prisons allow prisoners to check out library materials and, if in segregated housing,
19 to use a legal paging system to request materials for in-cell study if they cannot
20 attend the library.” Lara v. Yates, No. C 06-3138 MHP, 2010 WL 760486, at *6
21 (N.D. Cal. Mar. 4, 2010); Dossman v. Newland, No. C 00-384 SI, 2009 WL
22 1357455, at *5 (N.D. Cal. May 13, 2009) (same). Under 15 CCR § 3123(c), when
23 an inmate is unable to physically access the law library, he may request that library
24 staff deliver legal materials to him through “law library paging.” Law library paging
25

26 6 See also 15 CCR § 3164(c) (“Inmates who are housed in any restricted unit and who are
27 not serving a period of disciplinary detention may possess and have access to any legal resource
material available to the general population and may assist each other in their legal work to the
28 extent compatible with institution security.”; and 15 CCR § 3164(d) (“An inmate in a restricted
housing unit may have access to an inmate law library subject to the provisions of section 3123.”).
9
Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 10 of 12 Page ID #:421

1 is available to inmates who have been suspended from physical law library access
2 pending investigation of a serious rule violation and library staff must deliver paged
3 materials within 16 calendar days. 15 CCR § 3123(c)(3) & (e). Thus, had Petitioner
4 needed to obtain this Court’s address or conduct any legal research, he could have
5 done so through the legal paging system available to him. There is no evidence that
6 he made any such effort during his time confined in the ASU.
7 In addition, there is no evidence that Petitioner was precluded from having
8 legal materials in his cell in the ASU. Even if an inmate’s property is inventoried
9 and placed in storage (such as in Receiving and Release) when he is transferred into
10 an ASU, he is permitted to have up to one cubic foot of legal materials in his cell at
11 any given time and can submit a legal property request to the storage department to
12 obtain his legal materials. See Asberry v. Cate, No. 2:11-cv-2462-KJM KJN, 2013
13 WL 3490724, at *2 (E.D. Cal. July 10, 2013); see also 15 CCR § 3191 (in addition
14 to their allotted cubic space for personal property, inmates are allowed an extra cubic
15 foot for legal materials). Even if Petitioner’s legal materials were placed in storage
16 on March 1, 2021, when he first was placed in the ASU, there is no evidence that
17 Petitioner ever asked to have any of them retrieved to be kept and used in his cell.
18 Indeed, Petitioner does not contend that he ever asked to receive his legal
19 materials and was denied, or that he attempted to use the law library paging system
20 available to him but did not receive requested materials or information. Petitioner
21 fails entirely to provide any details of any specific action he took during his time in
22 the ASU. Petitioner’s sole unsworn and unsupported statement that, for six months,
23 he had nothing more than his bible available to him is not sufficient to meet his
24 burden of proving that he was subjected to an extraordinary circumstance during this
25 period of time that rendered it impossible for him to seek federal habeas relief.7 Nor
26
27 7 The Court has not addressed the question, raised in some cases, of whether placement in
the ASU due to the commission of a disciplinary offense can satisfy the requirement that an
28 extraordinary circumstance be beyond the petitioner’s control. See, e.g., Davis v. C.C.I. Tehachapi
Warden, No. CV 17-00131-DSF (KES), 2017 WL 901884, at *7 (C.D. Cal. Mar. 6, 2017)
10
Case 2:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 11 of 12 Page ID #:422

1 is this bare assertion – bereft of an indication that Petitioner made any effort to
2 exercise the rights actually available to him, even if more limited than those in
3 general population – sufficient to establish equitable tolling’s diligence requirement.
4 As the Ninth Circuit made abundantly clear in Smith v. Davis, supra, equitable
5 tolling is not available unless a petitioner was reasonably diligent in pursuing his
6 rights not only during the pendency of the alleged extraordinary circumstance “but
7 before and after as well.” 953 F.3d at 598-99; see also id. at 599 n.9 (describing the
8 foregoing “rule” as one that “requires an evaluation of a petitioner’s diligence across
9 the whole time involved”). Apart from Petitioner’s failure to make any effort during
10 his ASU stint to take even the minimal steps needed to seek federal habeas relief, he
11 has not proffered any explanation for having done nothing during the preceding four
12 and a half months, i.e., once the California Supreme Court denied habeas relief on
13 October 14, 2020, and Petitioner had over four months before being placed in the
14 ASU. Petitioner already had filed a federal habeas petition in April 2020, in Case
15 No. 2:20-cv-03483-JAK (GJS) (as discussed above), and there is no apparent reason
16 why, after the California Supreme Court denied relief, he could not have simply re-
17 filed his prior federal petition or a version of his state high court petition in this
18 Court. Critically, in its April 16, 2020 Order in the prior federal case advising
19 Petitioner of the unexhausted nature of his federal petition and advising him that he
20 could seek a Rhines stay, the Court expressly cautioned Petitioner that if the case
21 were to be dismissed, any subsequent federal habeas petition he filed could be
22 untimely under Section 2244(d)(1). Nonetheless, Petitioner ignored the stay option
23

24
(observing that, in light of this requirement, “[s]ome district courts have . . . concluded that
25 equitable tolling is not available if a petitioner was placed in the ASU or SHU because of his own
misconduct,” and discussing contrasting views). Here, the Objection makes it clear that Petitioner
26
vigorously disputes his guilt in connection with the battery charge that led to his ASU placement
27 and there is no evidence of record that he ever suffered a disciplinary conviction for that charge.
In any event, the Court need not resolve the foregoing question in this case, because regardless of
28 whether or not an “at fault” ASU placement qualifies as an extraordinary circumstance as an
abstract matter, under the facts here, there is no basis for finding that it did.
11
Case 2#:21-cv-08233-JAK-GJS Document 13 Filed 03/25/22 Page 12o0f12 Page ID #:423

1 || offered to him and caused the case to be dismissed, despite knowing that he could
2 || face a timeliness problem in the future. Under those circumstances, it was
3 || incumbent upon Petitioner to exercise reasonable diligence going forward, yet he did
4 || not do so. Thus, even if Petitioner’s ASU stint could be an “extraordinary
5 || circumstance,” his lack of diligence dooms his equitable tolling argument.
6 Under these circumstances, the Court cannot conclude that both requirements
7 || for application of the equitable tolling doctrine are met. As a result, equitable tolling
8 || is not available in this case and the Petition remains untimely. Accordingly, the
9 || Motion should be granted, and this action should be dismissed with prejudice.
10
1] RECOMMENDATION
12 For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue
13 |} an Order: (1) accepting this Final Report and Recommendation; (2) granting the
14 || Motion; (3) dismissing the Petition as untimely; and (4) directing that Judgment be
15 || entered dismissing this action with prejudice.
16 || DATED: March 25, 2022
17 by
18 GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE
19
20
1 NOTICE
22 Reports and Recommendations are not appealable to the Court of Appeals, but
23 || may be subject to the right of any party to file objections as provided in the Local
24 || Rules and review by the District Judge whose initials appear in the docket number.
25 || No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be
26 || filed until entry of the judgment of the District Court.
27
28
12

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9979439. Public record. Not legal advice.