The opinion of the court was delivered by: Deborah M. Smith United States Magistrate Judge
INITIAL REPORT AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS FILED AFTER THE STATUTE OF LIMITATIONS EXPIRED RESPONDENT'S MOTION TO DISMISS [Doc. 36]
I. BACKGROUND AND MOTION PRESENTED
In March of 1990, Petitioner Williams was convicted of first-degree murder for killing his girlfriend, Deborah Goodlataw. He filed a direct appeal, but his appeal was denied and his conviction upheld. See Williams v. State, 823 P.2d 1 (Alaska App. 1991). He then sought review from the Alaska Supreme Court, but on January 31, 1992, the Alaska Supreme Court denied his request. (Doc. 36-5). On June 27, 1996, Petitioner Williams filed an application for post-conviction relief in state court. The trial court dismissed the petition, and Williams appealed. The Alaska Court of Appeals affirmed that dismissal. Williams v. State, No. A-9603, 2008 WL 901195 (Alaska App. April 2, 2008) (unpublished). Again, Williams asked the Alaska Supreme Court to review the decision, but his request was denied on January 29, 2009. (Doc. 36-9).
On February 8, 2010 this Court received a habeas corpus petition pursuant to 28 U.S.C. § 2254 from Petitioner Williams (Doc. 1). The petition is very basic because, as Williams informed the Court in his petition, he recently had been moved from a prison in Arizona to a prison in Colorado and had not been able to locate his legal paperwork. The petition puts forth and 2) his statements to police were involuntary because one of the interrogating officers pretended to be an Alcoholics Anonymous member. He signed the petition on January 29, 2010.
He was appointed an attorney in this matter. (Doc. 6). The attorney, Ms. Averil Lerman with the Federal Public Defender, was given until April 15, 2010 to file an amended petition. Ms. Lerman filed a preliminary supplement to the original petition. (Doc. 10). In that supplement, Ms. Lerman puts forth three more claims for relief: 1) insufficient evidence; 2) actual innocence; and 3) his statements were involuntary because of his cognitive, developmental, and organic brain disabilities, in addition to the fact that one of the officers interrogating him was actually his Alcoholics Anonymous sponsor. She informed the Court that she needed to conduct more research and that she would then file a formal amended petition. She has since received extensions of time to file the amended petition.
In the meantime, Respondent filed this motion to dismiss, arguing that, under 28 U.S.C. § 2244(d), Williams missed the one-year filing deadline for any federal habeas corpus petition after calculating the amount of time that was statutorily tolled because of a pending state post-conviction relief application. Petitioner filed a response in opposition at Docket 55. In that response, Petitioner does not dispute that he missed the filing deadline, but he asserts that the deadline should be equitably tolled and he should be allowed to continue with his petition. He argues that equitable tolling is appropriate because he suffers from mental disabilities that prevented him from timely filing his petition and he was otherwise reasonably diligent in attempting to file a petition given his disabilities, citing to Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010). Williams submitted 16 exhibits in support of his argument that equitable tolling is appropriate in this case.
In a separate filing at Docket 56, Williams asked for an evidentiary hearing. That motion will be ruled on in a separate order. All other deadlines in this case have been stayed pending the outcome of this motion. (Doc. 45).
Respondent filed a reply at Docket 63, arguing that Williams has not demonstrated that he has a severe mental impairment or that he was otherwise diligent in pursuing his petition. It argues that an evidentiary hearing is not needed because there is no basis to his claim for equitable tolling.
A. Statute of limitation for 28 U.S.C. § 2254 petitions
Effective April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"). AEDPA placed a one-year statute of limitations for state prisoners filing federal habeas corpus petitions. 28 U.S.C. § 2244(d)(1). The one-year limitation period applies to all petitions for habeas corpus relief filed in federal court after the AEDPA's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Typically, for a case concluding after the enactment of AEDPA, the limitation period begins on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
The conviction in this case, however, became final in 1992, before the enactment of AEDPA. In such cases, the one-year limitations period began running on April 25, 1996, the day after AEDPA's effective date. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). That means that for a petitioner whose conviction was final prior to April 24, 1996, the time for filing a federal habeas petition would have expired on the one-year anniversary of AEDPA unless some type of tolling factors into the calculation.
The statute specifically authorizes tolling of the deadline during any period of time when a properly filed application for post-conviction relief is pending in state court. 28 U.S.C. 2244(d)(2). In this case, Williams filed a petition for post-conviction relief in state court on June 27, 1996.*fn1 That petition was pending in the state court until January 29, 2009 when the Alaska Supreme Court denied Williams' request for review of the dismissal. Thus, the limitations clock began running again on January 30, 2009. Thus, the time between June 27, 1996 and January 29, 2009 is excluded from the one-year statute of limitations. In other words, the time from April 25, 1996 to June 26, 1996 and everyday after January 30, 2009 count against his one-year deadline.
Based on its own calculations, 63 days of the one-year limitation period ran before Williams tolled the deadline by filing his state post-conviction relief application (April 25, 1996 to June 26, 1996). Then the limitation began running again on January 30, 2009. On that date, because 63 days had already passed on the one-year limitation deadline, Williams had 302 days to file his petition with this Court (365 days - 63 days = 302 days). Therefore, this Court concludes that the limitation period expired on November 27, 2009, 302 days after the Alaska Supreme Court denied his request for a hearing and ended his post-conviction relief process in state court.
Williams, however, did not file the petition until January 29, 2010.*fn2 That is a little more than two months after his deadline expired. Indeed, Williams does not contest that he missed the statutory deadline. He argues that he should be allowed to proceed because equitable tolling can be applied to excuse the two-month delay.
The statute of limitations in § 2244(d)(1) is subject to equitable tolling in appropriate circumstances. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010) (noting that the AEDPA statute of limitations defense is not jurisdictional and the statute does not set forth an inflexible rule requiring dismissal whenever its clock has run). To qualify for equitable tolling, the petitioner must show (1) that he has been pursing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland, 130 S.Ct at 2562-63; Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable tolling is not warranted unless "external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). However, the diligence required is reasonable, not maximum, diligence. Holland, 130 S.Ct. at 2565.
The petitioner bears the burden of demonstrating that the standards for equitable tolling have been met. Indeed, it is a very high standard, as equitable tolling is justified in few cases. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (stating that the threshold to trigger equitable tolling is very high). But, as the Court noted in Holland,
The flexibility inherent in equitable procedure enables courts to meet new situations that demand equitable intervention. . . . [C]courts of equity can and do draw upon decisions made in other similar cases for guidance. Such courts exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in appropriate cases.
Id. at 2563 (internal quotations omitted). Thus, whether equitable tolling is warranted is highly fact dependent and should be determined on a case-by-case basis. Spitsyn, 345 F.3d at 799; Lott v. Mueller, 304 F.3d 918, 923 (9th Cir. 2002).
C. Mental impairment as a grounds for equitable tolling
Mental illness or disability can, in some circumstances, constitute an extraordinary circumstance beyond a petitioner's control that would be sufficient to provide a basis for equitable tolling. The mental disability must, however, have made it impossible to comply with the filing deadline given the particular circumstances present during the limitations period. The courts do not have to apply the term "impossible" literally. Equitable tolling is still appropriate in cases where it would have technically been possible for a prisoner to file a petition on time but the prisoner would likely have been unable to do so. Bills v. Clark, 628 F.3d 1092, 1100 ...