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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

PATRICIA E. OETTING, 

Petitioner, No. CIV S-04-1180 MCE KJM P

vs.

GLORIA HENRY, Warden, 

Respondent. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prison inmate proceeding pro se with a petition for a writ of

habeas corpus, challenging her El Dorado County convictions for attempted murder and arson. 

Respondent has filed a motion to dismiss the petition, alleging it was filed outside the AEDPA

statute of limitations.

I. Background

Petitioner was sentenced in September 1998, appealed her conviction to the

California Court of Appeal, and then sought review in the California Supreme Court when the

appeal was unsuccessful. Motion To Dismiss (MTD), Exs. A (Abstract of Judgment), B, C

(Court of Appeal opinion, Petition For Review). That court denied review on August 22, 2001. 

MTD, Ex. D.

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 In her opposition, petitioner explains that she intended to file one petition with the

Supreme Court, but the envelopes of the original and the required number of copies were mailed

separately and the court treated them as different actions. Opp’n at 1. 

2

Petitioner began seeking collateral review with a petition filed April 5, 2002 in El

Dorado County Superior Court; the petition was denied ten days later. MTD, Exs. E, F (Petition

and Order Denying Petition). On July 15, petitioner filed a petition in the Court of Appeal,

which denied it on August 8, 2002. MTD, Exs. G, H (Petition and Order). She returned to the

Superior Court on August 9, 2002; that petition was denied on August 20, 2002. MTD, Exs I, J

(Petition and Order). She filed a fourth petition in the California Supreme Court on

December 26, 2002, and a fifth, also in the Supreme Court, on January 10, 2003. MTD, Exs. K, 

M (Petitions). These were denied on June 11, 2003 and July 16, 2003, respectively. MTD, Exs. 

L, N (Orders).1

The instant petition was filed May 20, 2004.

II. Analysis

A. The Statute Of Limitations

One of the changes the AEDPA made to the habeas statutes was to add a statute of

limitations for filing a habeas petition:

(1) A 1-year period of limitation shall apply to an application for a

writ of habeas corpus by a person in custody pursuant to the

judgment of a State court. The limitation period shall run from the

latest of–

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

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

review;

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

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

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

filing by such State action; 

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

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

recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or

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

presented could have been discovered through the exercise of due

diligence.

(2) 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 shall not be counted toward

any period of limitation under this subsection.

28 U.S.C. § 2244(d). 

The “conclusion of direct review” is not the denial of review by the California

Supreme Court, but ninety days thereafter, upon the expiration of the time in which to file a

petition for a writ of certiorari in the United States Supreme Court. Tillema v. Long, 253 F.3d

494, 498 (9th Cir. 2001); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). In this case, the

ninety day period expired on November 20, 2001. The AEDPA statute of limitations began

running the next day, November 21, 2001, and would have expired November 21, 2002, absent

any tolling. 

The statute of limitations is tolled during the pendency of any “properly filed”

state collateral attack on the judgment. Nino v. Galaza, 183 F.3d 1003, 1006-07 (9th Cir. 1999). 

In Carey v. Saffold, 536 U.S. 214, 218-21 (2002), the Supreme Court held that the AEDPA

statute of limitations is tolled not only between the actual filing and decision on a writ, but also

during those periods between filings as a petitioner works his or her way “up the ladder” through

higher courts to complete “one full round” of state court review of claims. Id. at 217, 219-20. 

Respondent argues that petitioner is not entitled to any tolling of the time between

denial of the petition in the Court of Appeal and the second Superior Court petition, or between

denial of the fourth Supreme Court petition and filing of the fifth, because petitioner was not

working her way from lower to higher courts. MTD at 4-5. In a case decided after the filing of

respondent’s motion, the Ninth Circuit has taken a somewhat broader view of tolling even when

a prisoner is not moving in a straight line from Superior Court to the Supreme Court, where, as

here, the intervals between state filings are not unduly long and the claims in separate petitions

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are overlapping. Gaston v. Palmer, 387 F.3d 1004, 1017-19 (9th Cir. 2004) (habeas action may

be “pending” even during a series of intervals between “non-ascending” petitions). 

Ultimately, however, the court need not reach the application of Gaston to this

case, for even if all the time between the first El Dorado County petition and the last Supreme

Court petition is deemed tolled the instant action is not timely. 

Petitioner filed her first state collateral attack on April 5, 2002, day 136 of the

AEDPA year. The statute of limitations was tolled until July 17, 2003, the day after the denial of

the last petition on July 16, 2003. Fed. R. Civ. P. 6(a) (excluding the day from which the period

begins to run from the calculation of the time). Accordingly, the federal petition was due 229

days later, on March 1, 2004. The petition, filed May 20, 2004, is not timely. 

B. Equitable Tolling

The Ninth Circuit has held: 

We will permit equitable tolling of AEDPA's limitations period

only if extraordinary circumstances beyond a prisoner's control

make it impossible to file a petition on time. When external forces,

rather than a petitioner's lack of diligence, account for the failure to

file a timely claim, equitable tolling of the statute of limitations

may be appropriate. 

Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (internal quotations and citations omitted). 

It is a habeas petitioner’s burden to establish his entitlement to equitable tolling. Miranda v.

Castro, 292 F.3d 1063, 1066 (9th Cir.), cert. denied, 537 U.S. 1003 (2002). 

Petitioner argues she is entitled to equitable tolling because her cataracts make

reading difficult and she had no one to assist her with her research. Reply at 3. 

Neither an inmate’s ignorance of the law nor pro se status are the sort of

extraordinary events upon which a finding of equitable tolling may be based. Marsh v. Soares,

223 F.3d 1217, 1220 (10th Cir. 2000), cert. denied, 531 U.S. 1194 (2001) (ignorance of the law);

Donovan v. Maine, 276 F.3d 87, 94 (1st Cir. 2002). In this case, petitioner’s difficulties in

conducting her own research do not support a finding of equitable tolling.

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Petitioner also claims her cataracts make reading and researching difficult. In this

case, however, it appears that petitioner was able to undertake research in support of her state

habeas petition. See, e.g., MTD, Ex. E at 3 (initial state petition). The instant petition does not

include any citations to authority or develop the arguments in any manner different than her

original presentation in state court. Accordingly, this court cannot find petitioner’s cataracts had

an impact on her ability to timely file this action.

Accordingly, IT IS HEREBY RECOMMENDED that respondent’s motion to

dismiss be granted. 

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: June 24, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

2/oett1180.157

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