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For the Northern District of California

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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LEONARD SCOTT,

Petitioner,

v.

MATTHEW CATES, Secretary of 

Corrections, 

Respondent. /

No. C 09-2789 SI (pr)

ORDER OF DISMISSAL

INTRODUCTION

Leonard Scott, a pro se prisoner, filed a petition for writ of habeas corpus to challenge

his 2000 conviction in Santa Clara County Superior Court. Respondent has moved to dismiss

the petition as untimely. For the reasons discussed below, the court finds the petition to be

barred by the statute of limitations and dismisses it. 

BACKGROUND

Following a jury trial in Santa Clara County Superior Court, Scott was convicted of

making a false financial statement, false personation, and misdemeanor filing false documents

with the California Department of Motor Vehicles. The trial court found that Scott had suffered

three prior convictions for purposes of the Three Strikes Law. On January 3, 2000, Scott was

sentenced to two concurrent terms of 25 years to life in prison plus a concurrent term on the

misdemeanor. 

He appealed. The California Court of Appeal modified the sentence to stay all but one

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of the concurrent 25-to-life terms, and otherwise affirmed the conviction. On November 20,

2001, the California Supreme Court denied Scott's petition for review.

Scott also filed a habeas petition in the California County Superior Court on or about

February 25, 2009. That petition was denied on April 6, 2009.

He then filed his federal petition for writ of habeas corpus. The petition has a proof of

service stating that it was mailed to the court on June 15, 2009. The petition was stamped "filed"

on June 24, 2009. As a prisoner proceeding pro se, Scott receives the benefit of the prisoner

mailbox rule, which deems most documents filed when they are given to prison officials to mail

to the court. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). The petition is

deemed to have been filed on June 15, 2009, the date of the proof of service. 

DISCUSSION

Petitions filed by prisoners challenging non-capital state convictions or sentences must

be filed within one year of the latest of the date on which: (1) the judgment became final after

the conclusion of direct review or the time has passed for seeking direct review; (2) an

impediment to filing an application created by unconstitutional state action was removed, if such

action prevented petitioner from filing; (3) the constitutional right asserted was recognized by

the Supreme Court, if the right was newly recognized by the Supreme Court and made

retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been

discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).

Here, the judgment became final and the limitations period began on February 19, 2002,

90 days after the California Supreme Court denied Scott's petition for review on November 20,

2001. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (direct review period includes

the period during which the petitioner could have sought further direct review, regardless of

whether he did so). The presumptive deadline for Scott to file his federal petition was February

19, 2003. He missed that deadline by more than six years, so unless he qualifies for a lot of

statutory or equitable tolling, the petition is untimely. 

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If the limitations period is equitably tolled for enough of the period between the

conclusion of direct review and the filing of the state habeas petitions to bridge that gap,

statutory tolling might be in order for state habeas petitions filed more than a year after the

conclusion of direct review, but that is not the case here because the limitations period will not

be equitably tolled. 

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The one-year limitations period may be tolled for the "time during which a properly filed

application for State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Statutory tolling is not appropriate here

because Scott did not file his first state habeas petition until February 2009, many years after the

limitations period had already ended. Once the limitations period expired it could not be

revived. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) does

not permit the reinitiation of the limitations period that has ended before the state petition was

filed,” even if the state petition was timely filed).1

 Scott did send a request to the superior court

in or about early 2007 in which he asked for transcripts from a 1979 hearing, see Petition, Exh.

D, but this effort does not result in any statutory tolling because it was not a "properly filed

application" under § 2244(d)(2) and because it occurred long after the limitations period had

expired. 

The one-year limitations period can be equitably tolled because § 2244(d) is a statute of

limitations and not a jurisdictional bar. Calderon v. United States District Court (Beeler), 128

F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States

District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). Two standards have been

articulated for determining whether equitable tolling is appropriate. The standard that has long

been used in the Ninth Circuit is that equitable tolling will not be available in most cases because

extensions of time should be granted only if "extraordinary circumstances beyond a prisoner's

control make it impossible to file a petition on time." Beeler, 128 F.3d at 1288 (citation and

internal quotation marks omitted). The Supreme Court articulated the standard differently, and

stated that "a litigant seeking equitable tolling bears the burden of establishing two elements:

(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance

stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (petitioner's lack of diligence

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in filing timely state and federal petitions precluded equitable tolling); Rasberry v. Garcia, 448

F.3d 1150, 1153 (9th Cir. 2006) (quoting Pace). The Ninth Circuit has not settled on a single

consistent standard. See Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir.), cert. denied, 129 S.

Ct. 397 (2008) (declining to decide whether Pace standard differs from Beeler standard). 

Under either articulation of the test, the petitioner bears the burden of showing that

equitable tolling is warranted in his case. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir.

2002); Pace, 544 U.S. at 418. The petitioner also must show that the extraordinary

circumstances "were the cause of his untimeliness." Spitsyn v. Moore, 345 F.3d 796, 799 (9th

Cir. 2003). Spitsyn's mention of causation is important because it shows that equitable tolling

often is not susceptible to a simple yes/no kind of inquiry, but instead requires the court to

determine whether equitable tolling is allowed for the circumstance and, if so, how much time

should be tolled for the circumstance. An acceptable reason for some delay doesn't necessarily

mean that all delay will be excused. 

Scott fails to show that he is entitled to any, let alone six years of equitable tolling of the

limitations period. He did not file an opposition to the motion to dismiss, so the court has looked

to his other filings for possible bases for equitable tolling. 

In the attachments to his petition, he seems to assert that he has newly discovered

evidence. See Petition, Exh. H. At page 6 of his habeas petition to the Santa Clara County

Superior Court, Scott he explained his delay with a statement that he had reviewed his prison file

on December 10, 2008 and had seen the court transcripts from his earlier plea bargains from the

prior convictions used for sentence enhancement purposes. In a declaration attached to that

same petition, he explained that he just learned that the "district attorney and the public attorney

knew that petitioners (sic) priors were under a plea bargain and the ct. transcripts reflected the

fact." Petition, Exh. H at Scott Decl. The Santa Clara County Superior Court rejected the

petition as an effort to do a second appeal, explaining that the sentence challenge had been raised

and rejected on direct appeal. Scott has not offered any explanation as to why he would have

been unaware until 2008 that his earlier convictions had been the product of guilty pleas, nor has

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he shown any diligence in obtaining this information – the significance of which is unclear –

until 2008. Scott has not shown that the unidentified newly discovered evidence warrants

equitable tolling of the limitations period. 

After respondent filed his motion to dismiss, Scott filed two letters in which he asked for

a stay and abeyance. See Docket # 13, # 14. In those letters, he presented evidence that he

suffered some physical injury in an altercation in January 2010, and consequently was put in

administrative segregation where there was limited law library access. These events are too late

to provide any reason to equitably toll the limitations period, which had expired more than six

years before these events took place. Scott has not shown that any equitable tolling is warranted.

The petition was filed more than six years too late. The petition must be dismissed.

Scott's request for a stay and abeyance is DENIED. (Docket # 13, # 14.) The usual

reason for a stay and abeyance is to exhaust unexhausted claims in state court, but Scott has not

identified any new claims he would be pursuing in state court if this action was stayed, nor has

explained his extreme delay in presenting any such claim. The events that occurred in January

2010 would not be relevant to any claim with regard to his 2000 conviction and sentence. There

is no reason for a stay and abeyance because the petition is already too late, and staying this

action will not overcome the untimeliness problem. 

In the second letter in which he requested a stay and abeyance, Scott also requested

appointment of counsel. The request for appointment of counsel is DENIED for the same

reasons stated in the order denying his first request for appointment of counsel. When the court

denied the first request for appointment of counsel three months before the second request was

made, the court reminded petitioner of his deadline to file his opposition to the motion to

dismiss, so it is not reasonable to believe that Scott was waiting for a ruling on his second

request (filed two months after his opposition was due) before filing his opposition to the motion

to dismiss. 

/ / /

/ / /

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CONCLUSION

Respondent’s motion to dismiss is GRANTED. (Docket # 8.) The petition for writ of

habeas corpus is dismissed because it was not filed before the expiration of the limitations period

in 28 U.S.C. § 2244(d)(1). A certificate of appealability will not issue because this is not a case

in which "jurists of reason would find it debatable whether the petition states a valid claim of

the denial of a constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Petitioner's second motion for appointment of counsel is DENIED. (Docket # 14.)

The clerk will close the file. 

IT IS SO ORDERED.

DATED: May 3, 2010 _______________________

 SUSAN ILLSTON

United States District Judge

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