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 Pursuant to respondent’s notification that the current warden of Salinas Valley State 1

Prison, where petitioner is incarcerated, is M.S. Evans, the court herein substitutes the name of

the current warden for that of Anthony Lamarque, as respondent in this action.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

TRACY ROMARA FOLEY, 

Petitioner, No. CIV S-04-1223 FCD GGH P

vs.

M. S. EVANS, Warden, ORDER & 

Respondent. FINDINGS AND RECOMMENDATIONS 1

 /

I. Introduction

Petitioner, a state prisoner proceeding with appointed counsel, has filed an

application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a

1998 conviction for which he was sentenced, on January 27, 1999, to a term of 33 years-to-life

(with additional terms stayed): (count 1) assault with intent to commit sodomy (Cal. Penal Code

§ 286); (count 2) assault with a deadly weapon (Cal. Penal Code § 220); (count 3) assault with a 

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 There were sentence enhancements under Cal. Penal Code §§667(e)(2) and 2

667(e)(2)(a)(ii), but a stay was imposed, under Cal. Penal Code § 654, on counts 2, 3 and 4. 

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deadly weapon by a prisoner (Cal. Penal Code § 4501/667(e)(2)); (count 4) assault with a deadly

weapon by a prisoner (Cal. Penal Code § 4501/667(e)(2))(a)(2)). 

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Petitioner asserts, inter alia, claims of ineffective assistance of counsel. The

parties informed the court that they sought to have the timeliness issue adjudicated before

proceeding with investigation or litigation of the merits; therefore, by order filed on February 1,

2005, the court directed respondent to proceed on a motion to dismiss the petition as barred by

the statute of limitations under AEDPA. Respondent filed a motion to dismiss on March 3,

2005, to which petitioner filed an opposition on March 18, 2005. 

Respondent moves for dismissal on the grounds that 1) this petition was filed

beyond the one-year statute of limitations pursuant to 28 U.S.C. §2244(d); 2) petitioner has failed

to exhaust state court remedies; and 3) the petition is an abuse of the writ. 

II. Statute of Limitations

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

was enacted. AEDPA amended 28 U.S.C. § 2244(d)(1), applicable to this 1998 conviction, so

that it now provides,

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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 The court notes that petitioner did file a prior application for writ of habeas corpus in the 3

Central District on November 7, 2001, challenging the same conviction/sentence in federal court

which was transferred to this district on November 26, 2001, and thereafter dismissed on

respondent’s motion, for failure to exhaust administrative remedies, by order filed on September

8, 2003, and judgment entered thereon. See Case No. CIV S-01-2168 MCE GGH P (Foley v.

Larmarque). Because, however, the filing of a federal petition does not toll the statute of

limitations under § 2244(d)(2), it has no bearing on the question of a time bar. Duncan v.

Walker, 533 U.S. 167, 121 S. Ct. 2120 (2001).

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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.

Petitioner appealed his sentence to the Third District Court of Appeal, which

affirmed the judgment on May 18, 2000. See Respondent’s Motion, pp. 2-3, Exhibit 2. 

Petitioner filed a petition for review in the California Supreme Court on June 28, 2000, which

was denied on August 9, 2000. Id., Exhibits 3-4. Petitioner’s conviction became final upon the

expiration of the 90-day period wherein petitioner would have had to file a petition for writ of

certiorari with the United States Supreme Court, or on November 7, 2000. Respondent’s

Motion, p. 3, Exhibits 3-4; Supreme Court Rule 13; Bowen v. Roe, 188 F.3d 1157, 1159 (9th

Cir. 1999); Smith v. Bowersox, 159 F.3d 345 (8th Cir. 1998). Petitioner had one year from that

date, or until November 7, 2001, to file a timely federal habeas petition. Unless excused by 3

statutory or equitable tolling, the instant petition, filed June 25, 2004, is not timely by more than

two and one half years.

Section 2244(d)(2) provides that 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. Petitioner

filed his first state habeas petition in the Sacramento County Superior Court on February 7, 2000,

which was denied on March 31, 2000. Respondent’s Motion, p. 4, Exhibits 5-6. Petitioner filed

a petition in the California Supreme Court, on October 2, 2003, which was denied on June 9,

2004, the state supreme court finding that some of the claims had previously been determined on

direct review, citing In re Waltreus, 62 Cal. 2d 218 (1965), and that also the petition, or claims

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 Thus for purposes of federal limitations tolling purposes, and specifically, whether a 4

state petition was properly filed, respondent bears no burden of showing that the state law was

adequate and consistently applied as he would in the separate procedural bar analysis. The state

court’s finding is “the end of the matter.” The purpose of the AEDPA limitations is to prevent

the stale filing of federal petitions; the concept of procedural bar is based on deference to

independent state procedural grounds to bar review on the merits. Procedural bar is a judge made

doctrine; tolling requirements stem from a federal statute. Petitioner’s counsel has confused the

two distinct concepts. While both concepts may be ultimately based on comity, they are

analyzed separately.

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within, were untimely, citing In re Robbins, 18 Cal. 4th 770, 780 (1998). Respondent’s Motion,

p. 4, Exhibits 7-8.

Petitioner’s initial state habeas petition, respondent observes (MTD, p. 5), was

denied more than seven months prior to the time when petitioner’s conviction became final (90

days after the denial of his state supreme court petition for review), on November 7, 2000, and 

therefore the first state habeas petition did not toll the statute, as it had not even begun to run. 

Under such circumstances, it is highly improbable that petitioner’s second habeas petition, the

one filed on October 2, 2003, can in any way be deemed a completion of one full round of a

properly filed application.

However, even if definitional gymnastics can make a state habeas case process

“pending” despite years long inactivity between filings, two recent Supreme Court cases direct

that no statutory tolling be permitted here. First, in order for a habeas filing to count as “properly

filed,” it must be timely filed: “[w]e hold that time limits, no matter their form, are ‘filing’

conditions.” Pace v. DiGuglielmo, __U.S.__, 125 S. Ct. 1807, 1814 (2005). Pace did not require

that the untimeliness ruling be subject to the procedural bar threshold requirements; it did not do

so because analysis of federal statutory tolling for federal statute of limitations does not require a

procedural bar analysis. See Bonner v. Carey, 425 F.3d 1145, 1148-1149 (9th Cir. 2005),

quoting Pace: “‘[w]hen a postconviction petition is untimely under state law, that [is] the end of

the matter for purposes of § 2244(d)(2).” If the state court has found a filing untimely, it is per 4

se not properly filed. In order for a state habeas proceeding to count at all in the federal tolling

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scheme, it must be properly filed. 28 U.S.C. § 2244(d)(2). When the state supreme court cited

In re Robbins, it found the petition untimely. Thus, the first superior court petition filed in 2000

has no later filed petition to which it can attach in order to create a “tolling period.”

The undersigned further finds that the state supreme court’s citation of In re

Waltreus, does not aid petitioner for those claims which he initially brought to the state supreme

court on direct review. First, there is no reason to assume that the citation to Robbins was not

meant to apply to the entire petition. It is not unreasonable to assert that the claims in a belated

state habeas petition are belated whether they were previously raised or not. However, even if

Robbins was meant only to apply to the “new” claims, Pace informs us that the petition was not

properly filed if an untimeliness determination was made. See Gaston v. Palmer, 417 F.3d 1030,

1039 (2005) (“proper filing” refers to the entire filing and not the individual claims therein). 

Statutory tolling reaches a metaphysical level if a petition can be properly filed and improperly

filed at the same time. 

Secondly, and even assuming that the second, state supreme court petition was

properly filed in whole or in part, in a case with remarkable similarity to the case at bar, the

Supreme Court found that an unexplained, or insufficiently explained years long gap between

filings could not permit the notion that habeas proceedings were nevertheless pending during the

years long hiatus. Evans v. Chavis, __U.S.__, __S. Ct.__, 2006 WL 42398 (2006). In Evans, the

petitioner filed two pre-AEDPA state habeas petitions, and then, after their denial on the merits,

waited three years to file a petition with the California Supreme Court. The state supreme court

issued a silent denial. The Supreme Court found that the Ninth Circuit had erroneously

interpreted Carey v. Saffold, 536 U.S. 214, 122 S. Ct. 2134 (2002), in that the Ninth Circuit had

equated denials on the merits by state courts, and especially the state supreme court, as an 

inexorable directive that a petitioner had timely filed the pertinent habeas petition for purposes of

federal tolling of the AEDPA limitations statute. The Supreme Court held that a decision on the

merits did not necessarily mean that a state habeas petition was timely filed. The court further

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 Petitioner’s cited Ninth Circuit cases, e.g., Gaston v. Palmer, 417 F.3d 1030, 1042 (9th 5

Cir. 2005,—which followed the now determined invalid Saffold-after-remand theory that

intervals between decisions on the merits will always be counted as part of the tolling period no

matter what the delay—are no longer good law on this point after Evans.

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found no legitimate fact in the record which could justify or excuse the three year delay, and

hence it simply reversed the Ninth Circuit’s decision that the AEDPA limitations period had been

statutorily tolled. The present case involves a petitioner who filed his first state petition, and had

it denied, prior to the time the AEDPA limitations period even started to run because the time

line on the finality of the conviction did not end until November 7, 2000. Over three years later,

(from the denial of his first state habeas petition) petitioner filed a petition in the state supreme

court. Thus, petitioner has a problematic hurdle to jump in convincing the court that the state

supreme court would have considered the delay “reasonable,” and thus the second petition timely

under California law. 

Petitioner cannot claim justification because he filed an errant (completely

unexhausted) federal petition in 2001. The Supreme Court has held that such petitions do not

count to exclude time for tardily filed federal petitions. Duncan v. Walker, supra. If it does not

count in the initial limitations analysis, it should not count in the tolling exception analysis either

as a “justification.” Moreover, in this case, there was no legal justification for filing a completely

unexhausted petition. Petitioner does not attempt to advance any other factual justification for

the tardy filings, i.e., sick, lockdowns and the like. The Supreme Court’s Evans decision is on

point and must be followed. The three year plus gap between filings was unreasonable. 5

Likewise, petitioner does not contend that he is entitled to equitable tolling In

Calderon v. U.S. District Court (Beeler), 128 F.3d 1283, 1288 (9 Cir. 1997), overruled on other th

grounds, Calderon v. U.S. District Court (Kelly), 163 F.3d 530 (9 Cir. 1998), abrogated on other th

grounds, Woodford v. Garceau, ____U.S.____, 123 S. Ct. 1398 (March 25, 2003), the Ninth

Circuit found that the statute of limitations could be equitably tolled if extraordinary

circumstances beyond a prisoner’s control made it impossible to file the petition on time. 

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Equitable tolling is “unavailable in most cases.” Miles v. Prunty, 187 F.3d 1104, 1107 (9 Cir. th

1999). “Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] is very high,

lest the exception swallow the rule.’” Miranda v. Castro, 292 F.3d 1063, 1066 (9 Cir. 1998). th

Petitioner has the burden of demonstrating that equitable tolling is appropriate. Id. at 1065. 

Petitioner has failed to do so.

Finally, petitioner’s claim of actual innocence, which might stand as a basis for

ignoring the statute of limitations, is attenuated and highly speculative at best. The court,

therefore, finds that this petition is time-barred and the motion to dismiss should be granted on

that ground.

III. Failure to Exhaust

Respondent avers and petitioner concedes that the claims of the present petition

are wholly unexhausted. MTD, pp. 1-2, 6-7; Opp., p. 7. Respondent seeks dismissal with

prejudice of this action on the grounds that it is time-barred; petitioner asks for dismissal without

prejudice. 

The undersigned has found that the entire petition is time-barred, no grounds for

equitable tolling having been set forth. Moreover, there is no sense in sending time barred claims

back to state court for exhaustion. The contention that the present petition constitutes an abuse

of the writ need not be reached. The court must recommend that respondent’s motion be granted

and that this action be dismissed with prejudice. 

IT IS ORDERED that the Clerk of the Court substitute in the name of M.S. Evans, 

Warden, for that of Anthony Lamarque, as respondent in this case.

Accordingly, IT IS HEREBY RECOMMENDED that respondent’s March 3,

2005, motion to dismiss be granted and this action be dismissed with prejudice.

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

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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: 1/18/06 

/s/ Gregory G. Hollows

____________________________________

GREGORY G. HOLLOWS

 UNITED STATES MAGISTRATE JUDGE

ggh:009

fole1223.mtd

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