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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SANDRA DEANNE SHAYNE,

Petitioner, No. CIV S-04-1492 MCE DAD P

vs.

DEBORAH JACQUES, et al., ORDER AND

Respondents. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a

petition for writ of habeas corpus. Respondents have moved to dismiss the petition on the

grounds that it was filed beyond the one-year statute of limitations and is a mixed petition

containing both exhausted and unexhausted claims. Petitioner has filed opposition to the motion

as well as a response to respondents’ reply.

PROCEDURAL HISTORY

Petitioner is confined pursuant to a judgment of conviction imposed on September

28, 2001, in Sacramento County Superior Court after a jury found her guilty of one count of

assault resulting in the death of a child under eight years old, in violation of Penal Code § 273ab,

and one count of second degree murder, in violation of Penal Code § 187(a). Petitioner received

an indeterminate state prison term of 25 years to life for the § 273ab conviction and an

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indeterminate state prison term of 15 years to life for the § 187(a) conviction. (Pet. at 1; Resp’ts’

Mot. to Dismiss at 2 & Ex. A.)

In an unpublished opinion filed January 7, 2003, the California Court of Appeal

for the Third Appellate District affirmed petitioner’s judgment. Petitioner’s petition for review

by the California Supreme Court was summarily denied by order filed April 9, 2003. Petitioner

did not file a petition for writ of certiorari with the United States Supreme Court and did not file

any state habeas petitions. (Pet. at 1-2; Resp’ts’ Mot. to Dismiss at 2 & Exs. B, C & D.)

MOTION TO DISMISS AS BARRED BY THE STATUTE OF LIMITATIONS

I. The Applicable Statute

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”)

was enacted. The AEDPA amended 28 U.S.C. § 2244 by adding the following provision:

 (d) (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 

(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).

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The one-year AEDPA statute of limitations applies to all federal habeas corpus

petitions filed after the statute was enacted. See Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). 

The statute of limitations applies to the present case because petitioner’s federal habeas petition

was filed on July 29, 2004.

II. Application of § 2244(d) to the Facts of This Case

The California Supreme Court denied review on direct appeal on April 9, 2003. 

The ninety-day period during which petitioner could have filed a petition for writ of certiorari in

the United States Supreme Court expired on July 8, 2003. See Bowen v. Roe, 188 F.3d 1157,

1159 (9th Cir. 1999). Petitioner’s judgment became final for purposes of § 2244(d)(1)(A) on

July 8, 2003. Because petitioner did not file any state habeas petitions, she is not entitled to

statutory tolling pursuant to 28 U.S.C. § 2244(d)(2). If the one-year period of limitation began to

run on July 8, 2003, it ran without interruption by any statutory tolling until it expired on July 8,

2004, prior to the court’s receipt of petitioner’s federal habeas petition on July 29, 2004.

The undersigned has considered whether petitioner’s federal habeas petition

should be deemed filed on a date prior to July 29, 2004. In general, a document is “filed” when it

is “delivered into the custody of the Clerk and accepted by the Clerk for inclusion in the official

records of the action.” Local Rule 1-101. An exception exists for pro se prisoners who deliver

their documents to prison authorities for forwarding to the court. Houston v. Lack, 487 U.S. 266,

276 (1988); Saffold v. Newland, 250 F.3d 1262, 1265, 1268 (9th Cir. 2000), overruled on other

grounds, Carey v. Saffold, 536 U.S. 214 (2002). This is so because prisoners who proceed

without the aid of counsel are in a unique situation: they are unable to take the steps other

litigants can take to monitor the filing of their documents, and they have no choice but to entrust

their documents “to the vagaries of the mail and the clerk’s process for stamping incoming

papers.” 487 U.S. at 270-71. Due to the fact that a prisoner’s control over the processing of a

document “necessarily ceases as soon as he hands it over to the only public officials to whom he

has access–the prison authorities–and the only information he will likely have is the date he

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delivered the [document] to those prison authorities,” a document may be deemed to have been

filed at the time the prisoner delivered the document to prison authorities for forwarding to the

court clerk. Id. at 271-72, 276.

In order to benefit from the mailbox rule when filing a habeas petition, a prisoner

must meet two requirements: (1) the prisoner must be proceeding without assistance of counsel,

and (2) the prisoner must deliver the petition to prison authorities for forwarding to the court

clerk within the limitations period. Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003). 

When both requirements are met, a habeas petition will be deemed filed at the moment it was

delivered to prison authorities for mailing to the court. Id.

In this case, petitioner was confined in Central California Women’s Facility

(“CCWF”) when her federal habeas petition was received by this court. The petition and an

accompanying application to proceed in forma pauperis are dated July 12, 2004. A typed

attachment to the form petition is dated July 23, 2004. Appended to the petition is a proof of

service indicating that a copy was mailed to the California Attorney General on July 20, 2004, by

a person employed at a business located in San Bernardino County. These documents do not

reveal whether petitioner delivered her habeas petition to prison authorities for mailing to the

court clerk, or whether she mailed the petition to another person for mailing to the clerk. The

dates on petitioner’s documents establish conclusively, however, that she did not deliver her

federal habeas petition to prison authorities for mailing to the clerk on or before July 8, 2004. 

See Stillman, 319 F.3d at 1202 (holding that the mailbox rule did not apply where the petitioner

did not deliver his petition to prison authorities within the limitations period and delivered the

petition for mailing to his lawyer, not to the clerk of the court); Miller v. Sumner, 921 F.2d 202,

203-04 (9th Cir. 1990) (holding that the prisoner could not benefit from the mailbox rule where

he placed his document in a regular mailbox at the prison instead of delivering the document to

prison authorities for posting to the court through the prison log system).

////

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 The pages in petitioner’s opposition filed December 30, 2004, are not numbered. The court

will refer to pages as if they were numbered consecutively beginning with the first page.

5

Moreover, petitioner was not proceeding without assistance of counsel. In

February 2004, petitioner obtained the assistance of Michele Kinser, a legal assistant who had

been confined at CCWF in 2003 but who was released in February 2004. (Pet’r’s Opp’n to Mot.

to Dismiss at 2-3.1) Petitioner has offered a declaration in which Ms. Kinser states that she was

under the supervision of Board-certified attorneys at all times after her release, working first for

Robert Deller, an attorney located in Riverside, and then for the law firm of Brunick, McElhaney

& Beckett, located in San Bernardino, and that under such supervision she prepared a federal

habeas petition for petitioner proceeding pro se. (Id., Decl. of Michele Kinser.) “When a lawyer

prepares legal documents on behalf of a prisoner and arranges for those documents to be signed

and filed, the prisoner is not proceeding without assistance of counsel.” Stillman, 319 F.3d. at

1201 (holding that the pro se prisoner was not entitled to the benefit of the mailbox rule where

his appellate attorney declined to represent him on collateral review but prepared a state habeas

petition and arranged for the prisoner to sign it). The fact that the habeas petition in this case was

filed by a prisoner proceeding pro se does not change the fact that petitioner had the assistance of

counsel in the preparation of her petition. See id. at 1201 & n.3 (citing California law defining

the practice of law to include the preparing of legal documents and the giving of legal advice).

The undersigned finds that the mailbox is not applicable to petitioner’s federal

petition and that the petition was filed on July 29, 2004, three weeks after the statute of

limitations expired pursuant to 28 U.S.C. § 2244(d)(1)(A).

In opposition to respondents’ motion, petitioner concedes that the one-year period

of limitation applies to her petition but contends that the time period “should be tolled based

upon 28 USC Section 2244(d)(1)(B).” (Pet’r’s Opp’n at 2.) Petitioner argues that the untimely

filing was caused by a state-created impediment and wrongful conduct by a correctional officer

employed at CCWF. In support of these arguments, petitioner offers the Kinser declaration, a

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copy of a government claim filed by Ms. Kinser and sixteen inmates, and a copy of a letter dated

December 7, 2004, from Ms. Kinser’s employer to the warden of CCWF concerning legal

correspondence from Ms. Kinser to inmates housed at the institution. (Id., Kinser Decl. & Exs.

A & B.) The gravamen of petitioner’s arguments and evidence is that Correctional Sergeant Kim

Seagle interfered with legal mail from Ms. Kinser to inmates at CCWF and in particular

prevented petitioner from receiving her federal habeas petition from Ms. Kinser in time to file it

within the period of limitation. Petitioner argues that extraordinary circumstances beyond her

control made it impossible for her to file her petition on time and that but for the unlawful

conduct of Sergeant Seagle the petition would have been timely filed.

Section 2244(d)(1)(B) is not a provision that tolls the running of the one-year

period of limitation after that period has started to run. Section 2244(d)(1) provides that the oneyear period of limitation for filing a federal habeas petition “shall run from the latest of” the four

dates described in § 2244(d)(1)(A), (B), (C), and (D). Because petitioner’s judgment became

final for purposes of § 2244(d)(1)(A) on July 8, 2003, the one-year period shall run from that

date unless petitioner is entitled to a later start date under one of the three alternative provisions.

Section 2244(d)(1)(B), the provision invoked by petitioner, provides for a

limitation period running from “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.” Petitioner has not shown that there

was a state-created impediment to the filing of her habeas petition when her judgment became

final. Accordingly, § 2244(d)(1)(B) does not provide petitioner with a date later than July 8,

2003, for the commencement of the period of limitation.

III. Equitable Tolling

Petitioner’s contentions concerning tolling, unlawful conduct by a prison official,

and extraordinary circumstances are more appropriately considered as arguments supporting a

request for application of the doctrine of equitable tolling.

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Federal courts have applied the doctrine of equitable tolling in cases where a party

was prevented from asserting a claim by wrongful conduct on the part of the opposing party as

well as in cases where extraordinary circumstances beyond a party’s control made it impossible

to file a claim on time. See Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir.

1996). The Ninth Circuit has held that the AEDPA statute of limitations is subject to equitable

tolling, “but only when ‘extraordinary circumstances beyond a prisoner’s control make it

impossible to file a petition on time’ and ‘the extraordinary circumstances were the cause of his

untimeliness.’” Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (quoting Spitsyn v.

Moore, 345 F.3d 796, 799 (9th Cir. 2003)). See Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir.

2002) (holding that the prisoner was entitled to equitable tolling where the district court

improperly rejected his pro se habeas petition, lost the body of his original petition, and caused a

lengthy delay between the prisoner’s original attempt to file his petition and the first status

conference in the case); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (holding that the

prisoner was entitled to equitable tolling where prison officials delayed his request that a check

be drawn on his trust account for payment of the filing fee); Calderon v. United States Dist.

Court (Kelly), 163 F.3d 530, 541-42 (9th Cir. 1998) (en banc) (holding that the prisoner was

entitled to equitable tolling due to an earlier court-ordered stay of habeas proceedings, alleged

mental incompetency, and the existence of timely habeas proceedings that were mistakenly

dismissed); Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir.

1997) (holding, in a death penalty case, that the withdrawal of court-appointed federal habeas

counsel, who moved out of state and whose work product was not usable by replacement

counsel, qualified as an extraordinary circumstance which justified tolling the statute of

limitations), overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly),

163 F.3d 530 (9th Cir. 1998).

Equitable tolling is not routinely available in habeas corpus cases because district

courts are expected to “take seriously Congress’s desire to accelerate the federal habeas process.” 

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 In Pace, the Court observed that it has “never squarely addressed the question whether

equitable tolling is applicable to AEDPA’s statute of limitations” but assumed without deciding its

application for purposes of that case. 125 S. Ct. at 1814 n.8.

8

Calderon (Beeler), 128 F.3d at 1288-89. See Corjasso, 278 F.3d at 877 (noting that the standard

sets a “high hurdle” to the application of equitable tolling); Miles, 187 F.3d at 1107 (observing

that equitable tolling is “unavailable in most cases”). Tolling of the AEDPA statute of

limitations due to extraordinary circumstances is not available unless the petitioner has diligently

pursued his or her claims. Calderon (Beeler), 128 F.3d at 1289.

“[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, U.S. , 125 S. Ct. 1807, 1814

(2005).2 Both elements must be established. Id. at 1815 (finding that the habeas petitioner in

that case was not entitled to equitable tolling of the statute of limitations because he had not

established the requisite diligence). “Grounds for equitable tolling under § 2244(d) are ‘highly

fact-dependent.’” Laws, 351 F.3d at 922 (quoting Whalem/Hunt v. Early, 233 F.3d 1146, 1148

(9th Cir. 2000) (en banc)). Whether the limitations period in a particular case should be

equitably tolled depends on whether the petitioner has demonstrated the kind of extraordinary

circumstances beyond the petitioner’s control, making filing impossible, for which equitable

tolling is available.

Petitioner contends that she was diligent and that extraordinary circumstances

beyond her control made it impossible to file her federal habeas petition on time. Petitioner

argues and offers evidence of the following: after the California Supreme Court denied review,

petitioner was advised by appellate counsel that she could no longer represent petitioner;

petitioner was unable to obtain representation by counsel but obtained the assistance of Michele

Kinser, a legal assistant employed by Robert Deller, Attorney at Law, in February 2004;

petitioner sent her appellate briefs and transcripts to Ms. Kinser on February 8, 2004; in May

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 The Kinser declaration indicates that the petition was first sent to petitioner on June 30,

2004. It appears that the date is incorrectly cited as June 3, 2004, on page 3 of petitioner’s

Memorandum of Points and Authorities. 

9

2004 Ms. Kinser’s residence and her place of employment were searched by police for evidence

of possible parole violations on the basis of allegations by Sergeant Seagle, an officer employed

at CCWF, where Ms. Kinser had been confined and petitioner is confined; as a result of these

events, Ms. Kinser lost her employment with Mr. Deller but obtained employment with the law

firm of Brunick, McElhaney and Beckett; in May 2004 Sergeant Seagle issued a memorandum

prohibiting all mail at CCWF to and from Ms. Kinser; as a result of the memorandum,

petitioner’s mail from Ms. Kinser was returned to sender or confiscated; on May 28, 2004, Ms.

Kinser filed a state tort claim in which she alleged denial of access to the courts on behalf of

petitioner and other inmates at CCWF; on June 30, 2004,3 Ms. Kinser mailed a completed habeas

petition to petitioner for signature and filing with the court; on July 10, 2004, petitioner notified

Ms. Kinser that she had not received the petition; on July 22, 2004, Ms. Kinser sent a second

petition, using a Brunick, McElhaney and Beckett envelope; petitioner received the petition,

signed it, and mailed it to the court. Petitioner argues that she would have received the petition

from Ms. Kinser and filed it before the statute of limitations had expired, but for the actions of

Sergeant Kinser. (Pet’r’s Opp’n at 1-6, Decl. of Michele Kinser, & Ex. A.)

Petitioner cites a case in which the court held that the intentional confiscation of a

prisoner’s habeas corpus petition and related legal papers by a corrections officer shortly before

the filing deadline is extraordinary as a matter of law. Valverde v. Stinson, 224 F.3d 129, 133

(2d Cir. 2000). Petitioner argues that in her case, as in Valverde, extraordinary circumstances

concerning her legal mail caused the untimely filing of her federal habeas petition. Petitioner

contends that the untimeliness was not caused by a lack of diligence on her part but by external

forces outside her control. Petitioner argues further that equitable tolling is warranted by the fact

that it was unlawful conduct of prison staff that prevented the timely filing of her petition.

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In reply, respondents argue that petitioner’s equitable tolling argument lacks merit

because the pro se petitioner relied on a parolee legal assistant at her own peril and assumed the

risk of delays caused by such reliance. Respondents cite cases holding that the petitioner gave

his papers to a jailhouse lawyer at his own peril, United States v. Cicero, 214 F.3d 199, 204

(D.C. Cir. 2000), the petitioner’s reliance on alleged incompetent jailhouse lawyers did not

constitute cause for his procedural default, Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir.

1998), and the petitioner could not use his decision to rely on a prison writ writer as an excuse

for filing a late petition, Henderson v. Johnson, 1 F. Supp. 2d 650, 655 (N.D. Tex. 1998). 

Respondents also argue that Ms. Kinser received notice of the restrictions on mail

between inmates and parolees on November 24, 2003, well in advance of Ms. Kinser’s attempt to

mail a habeas petition to petitioner on June 30, 2004. Respondents offer a declaration by Kim

Seagle, who declares that she searched her records at the request of respondents’ counsel “to

determine when former inmate and current parolee Michelle [sic] Kinser was first put on notice

of the California Department of Correction’s [sic], hereinafter CDC, policy regarding inmate and

parolee correspondence.” (Resp’ts’ Reply to Pet’r’s Opp’n, Decl. of Sgt. Kim Seagle ¶ 2.) On

the basis of her research, declarant avers that

on November 24, 2003, in response to unauthorized

communication between Ms. Kinser and a jail inmate, [declarant]

distributed a flyer to Ms. Kinser, while she was still an inmate of

the CDC. . . . The flyer provided Ms. Kinser with notification of

the CDC’s policy that, in pertinent part, inmates and parolees not

correspond with each other unless prior authorization is obtained as

set forth in the California Regulations, Title 15.

(Reply, Seagle Decl. ¶¶ 3-4.) Respondents argue that Ms. Kinser insisted on sending mail to

petitioner despite prior knowledge of the restriction on such correspondence and that petitioner

“cannot now claim that she was impeded from timely filing her federal petition due to a

restriction of which prior knowledge was had.” (Reply at 3.)

In response to respondents’ reply, petitioner points to a case in which the

California Supreme Court held that the CDC could not prohibit correspondence between prison

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inmates and a paroled union official. In re Brandt, 25 Cal. 3d 136 (Cal. 1979). Petitioner argues

that, by analogy, a parolee employed as a legal assistant and acting within the scope of her

employment cannot be prohibited from sending legal mail to an inmate.

Petitioner offers numerous declarations to support her contention that Sergeant

Seagle’s actions constituted misconduct rising to the level of extraordinary circumstances

warranting equitable tolling. Inmate Michelle Joe describes Sergeant Seagle’s interference with

her legal mail to and from Ms. Kinser in May and June 2004. (Pet’r’s Response to Reply, Decl.

of Michelle Joe ¶¶ 8 & 9.) Inmate Wilma Kilpatrick describes her attempt to mail medical

records to Ms. Kinser at the law offices of Robert Deller on May 15, 2004, and her receipt of a

notice from housing staff that a memo had been issued by Sergeant Seagle stating that no inmate

mail was to be mailed out to Michele Kinser or the Law Offices of Robert Deller and no mail

was to be received from Ms. Kinser or the Law Offices of Robert Deller. (Id., Decl. of Wilma

Kilpatrick ¶ 7.) Ms. Kilpatrick also declares that on January 5, 2005, Sergeant Seagle told her if

she continued to correspond with or attempted to call Ms. Kinser she would not get a parole date

at her upcoming Board hearing. (Id., Kilpatrick Decl. ¶ 9.) Similarly, inmate Eleanor Gutierrez

describes her attempt to mail medical records to Ms. Kinser at the Law Offices of Robert Deller

on May 15, 2004. (Id., Decl. of Eleanor Gutierrez ¶ 7.) The medical records were returned to

Ms. Gutierrez with a disciplinary chrono stating that she was not authorized to correspond with

Ms. Kinser, and Ms. Gutierrez was advised that a memo had been issued by Sergeant Seagle

disallowing mail to or from Ms. Kinser and to or from the law office where she worked. (Id.)

Attorney Charles A. Peckham, a member of the law firm of Brunick, McElhaney and Beckett,

states that Ms. Kinser consulted with him on July 11, 2004, about her attempt to send legal

documents to petitioner for signature, and he instructed her to send petitioner another copy of the

petition in one of the firm’s envelopes. (Id., Decl. of Charles A. Peckham ¶ 4.) Ms. Kinser

declares that she did not ever meet, speak with, or receive any correspondence from Sergeant

Seagle and received no notice regarding correspondence between inmates and parolees until

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December 2004 when she received a copy of an institutional memo on that subject from CCI

Delgado. (Id., Decl. of Michele Kinser dated Feb. 21, 2005, & Ex. B.) 

Petitioner’s evidence establishes that (1) in February 2004 Ms. Kinser agreed to

assist petitioner with the preparation of a pro se federal habeas petition; (2) a completed petition

was mailed to petitioner for signature and filing on June 30, 2004; (3) on July 10, 2004, Ms.

Kinser was notified that petitioner did not receive the petition; (4) on July 22, 2004, Ms. Kinser

mailed a second copy of the petition to petitioner, in an envelope bearing the name of the law

firm where Ms. Kinser is employed; (5) petitioner received the second copy of the petition and

signed it; and (6) the signed petition was received for filing on July 29, 2004. Respondents have

not contested petitioner’s evidence that Sergeant Seagle has repeatedly interfered with inmate

mail to and from Ms. Kinser, as well as mail to and from Ms. Kinser’s employers since April

2004. Nor have respondents disputed the evidence that Sergeant Seagle issued a memorandum in

May 2004 purporting to disallow mail to and from Ms. Kinser and the Law Offices of Robert

Deller, where Ms. Kinser was then employed. As a result of that memorandum, the completed

habeas petition sent to petitioner on June 30, 2004, failed to reach petitioner. A second copy

mailed to petitioner on July 22, 2004, reached petitioner only because it was in an envelope

bearing the name of Ms. Kinser’s new employer, the law firm of Brunick, McElhaney and

Beckett.

The undersigned finds that petitioner has demonstrated diligent pursuit of her

claims along with the existence of extraordinary circumstances beyond her control that prevented

her from filing a timely federal habeas petition between June 30, 2004, when Ms. Kinser mailed

the completed petition to petitioner, and July 22, 2004, when Ms. Kinser sent petitioner a

duplicate. Federal courts routinely deny requests for equitable tolling based on pro se status, lack

of legal training, restricted access to legal materials, and inadequate law libraries, because such

circumstances are common to all prisoners and are not extraordinary. A prison official’s

deliberate and unlawful interference with inmates’ legal mail in violation of the constitutional

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right of access to the courts cannot be viewed as a circumstance shared by all prisoners. A prison

official’s misconduct is extraordinary, like the circumstances that entitled petitioners to equitable

tolling in Corjasso, 278 F.3d at 877, where the district court improperly rejected the petitioner’s

pro se habeas petition, lost the body of the original petition, and caused a lengthy delay between

the original attempt to file a petition and the first status conference in the case, in Miles, 187 F.3d

at 1107, where prison officials delayed the petitioner’s request that a check be drawn on his trust

account for payment of the filing fee, in Calderon (Kelly), 163 F.3d at 541-42, where there had

been an earlier court-ordered stay of habeas proceedings, mental incompetency was alleged, and

timely habeas proceedings were mistakenly dismissed, and in Calderon (Beeler), 128 F.3d at

1288-89, where court-appointed federal habeas counsel withdrew and moved out of state, leaving

a work product that was not usable by replacement counsel. See also Lott v. Mueller, 304 F.3d

918, 924 (9th Cir. 2002) (holding that a prisoner’s lack of access to his legal files for reasons

beyond his control may justify equitable tolling if the lack of access made it impossible for the

prisoner to file his federal habeas petition in a timely manner); Brooks v. Olivarez, No. C 98-134

MJJ (PR), 1998 WL 474160, at *2 n.2 (N.D. Cal. Aug. 5, 1998) (finding it appropriate to toll a

specific period of time when the prisoner was prevented from working on his petition through no

fault of his own).

The undersigned finds that petitioner is entitled to equitable tolling from June 30,

2004, to July 22, 2004, on the ground that Sergeant Seagle’s unlawful interference with inmates’

legal mail during that time constituted an extraordinary circumstance beyond petitioner’s control. 

If the statute of limitations is equitably tolled for 22 days, the limitation period is extended from

July 8, 2004, to July 30, 2004, and the petition received by the court on July 29, 2004, was filed

within the statute of limitations. On the basis, respondents’ motion to dismiss the petition as

barred by the statute of limitations should be denied.

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MOTION TO DISMISS THE PETITION AS MIXED

Respondents seek dismissal of the petition as a mixed petition containing

exhausted and unexhausted claims. Respondents note that petitioner has alleged three grounds

for relief in her federal habeas petition:

(1) petitioner’s third statement to law enforcement was

inadmissible because it was the product of an involuntary second

statement;

(2) the voluntary manslaughter instruction incorrectly included an

intent to kill requirement; and

(3) the trial court erred by refusing to instruct on felony child abuse

and endangerment and in omitting an instruction on the lesser

included offense of assault with force likely to cause great bodily

injury.

(Pet. at 4-5.) Petitioner filed one petition in the California Supreme Court, her petition for

review on direct appeal. Petitioner raised the following grounds in her petition for review:

(1) petitioner’s statement to law enforcement on October 14, 1998,

was coerced and it was error to admit the statement at trial;

(2) the Lasko error concerning the voluntary manslaughter

instruction was prejudicial;

(3) insufficient evidence of the corpus delicti; and

(4) § 273ab is unconstitutional.

(Resp’ts’ Mot. to Dismiss, Ex. C.) Respondents contend that the grounds raised in the California

Supreme Court served to exhaust only the first and second grounds for relief alleged in

petitioner’s federal habeas petition. Respondents assert that the court is required to dismiss the

federal habeas petition for failure to exhaust available state remedies on all claims, with leave to

amend the petition to delete the unexhausted claim. On the basis of their motion to dismiss the

action as barred by the statute of limitations, respondents further argue that the action should be

dismissed with prejudice. Petitioner did not address the exhaustion issue in her opposition to the

motion to dismiss, or in her response to respondents’ reply. In her habeas petition, petitioner

failed to state whether any of her claims were not previously presented in any other court. 

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A federal district court may not entertain a petition for habeas corpus unless the

petitioner has exhausted state court remedies with respect to each claim raised in the petition. 

Rose v. Lundy, 455 U.S. 509, 516 (1982). A mixed petition containing both exhausted and

unexhausted claims must be dismissed. Id. at 522; Schwendeman v. Wallenstein, 971 F.2d 313,

315 (9th Cir. 1992). A petitioner satisfies the federal exhaustion requirement by fairly presenting

to the state’s highest court all federal claims before he presents them to a federal court. Duncan

v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Crotts v. Smith, 73 F.3d 861, 865 (9th Cir.

1996). The petitioner must alert the state courts that a claim under the United States

Constitution is being presented. Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (citing

Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999)); see also Duncan, 513 U.S. at 365-66 (“If

state courts are to be given the opportunity to correct alleged violations of prisoners’ federal

rights, they must surely be alerted to the fact that the prisoners are asserting claims under the

United States Constitution.”). 

Respondents have demonstrated that the third ground for relief alleged in

petitioner’s federal habeas petition has not been presented to the California Supreme Court. 

Petitioner’s federal habeas petition is therefore a mixed petition containing unexhausted jury

instruction claims. The undersigned will recommend that respondents’ motion to dismiss be

granted with leave to file an amended petition that omits the unexhausted claims.

If the recommendations set forth below are adopted and petitioner files an

amended petition alleging only exhausted claims, petitioner may move for a stay of this action

while additional claims are exhausted. See Rhines v. Weber, U.S. , 125 S. Ct. 1528,

1534-35 (2005) (upholding the district court’s discretion to stay a federal habeas proceeding to

allow the petitioner to present unexhausted claims to the state court where there is good cause for

petitioner’s failure to exhaust all claims in state court before filing a federal habeas petition);

Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000) (authorizing district courts to stay fully

exhausted federal petitions pending exhaustion of other claims); Calderon v. United States Dist.

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Court (Taylor), 134 F.3d 981, 987-88 (9th Cir. 1998) (recognizing the district court’s authority to

allow a petitioner to amend a mixed petition to delete unexhausted claims and hold the

completely exhausted petition in abeyance). No motion to stay may be filed until the district

judge rules on the pending motion to dismiss and instructs petitioner on how to proceed.

Accordingly, IT IS HEREBY ORDERED that:

1. Respondents’ request to substitute Deborah Jacquez for respondent Gwendolyn

Mitchell is granted;

2. The Clerk of the Court shall amend the docket to reflect the substitution; and

IT IS RECOMMENDED that:

1. Respondents’ October 13, 2004 motion to dismiss the action as filed in

violation of the statute of limitations be denied; and

2. Respondents’ October 13, 2004 motion to dismiss the petition as a mixed

petition be granted with leave to amend.

These findings and recommendations will be submitted to the United States

District Judge assigned to this 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 and

serve written objections with the court. A document containing objections should be titled

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

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

that failure to file objections within the specified time may, under certain circumstances, waive

the right to appeal the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

1991).

DATED: June 10, 2005.

DAD:13

shay1492.mtd

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