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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAMON LAMAR FOSTER,

Petitioner, No. CIV S-04-2281 MCE DAD P

vs.

WARDEN SCRIBNER, et al.,

Respondents. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

corpus. In the six-page form petition filed in the Fresno Division of this court on October 6,

2004, petitioner attacks a judgment of conviction entered in the San Joaquin County Superior

Court on October 6, 1995. The petition was transferred to the Sacramento Division of the court

on October 28, 2004. In due course, respondents were directed to file a response to the petition.

On March 15, 2005, respondents filed a motion to dismiss the petition on the

grounds that it was filed beyond the one-year statute of limitations and contains only unexhausted

claims. Petitioner requested an extension of time and was granted an extension to June 15, 2005,

to file opposition to respondents’ motion. (See Pet’r’s Mot. for Extension of Time filed Apr. 15,

2005; Order filed Apr. 26, 2005.) Despite having been granted a total of 90 days to oppose

respondents’ motion, petitioner did not file timely opposition, did not request a second extension

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of time, and did not file untimely opposition in the seven months after his extension of time

expired.

On June 15, 2005, petitioner filed a “Motion for Writ of Mandate/Prohibition,” in

which he requests that the court (1) provide prisoners with meaningful access to the law library

and (2) order respondents and their agents to provide prisoners with adequate photocopy services,

staffing, updated books and legal materials, telephone calls to their attorneys, and the right to

browse law library shelves.

To prevail on a request for injunctive relief, the moving party must show a

likelihood of success on the merits of his claims and the possibility of irreparable injury if

injunctive relief is not granted, or he must demonstrate that serious questions are raised and the

balance of hardships tips sharply in his favor. See Coalition for Economic Equity v. Wilson, 122

F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374,

1376 (9th Cir. 1985). For either formulation, the focal point is the degree of irreparable injury

shown. Oakland Tribune, 762 F.2d at 1376. “Under any formulation of the test, [the petitioner]

must demonstrate that there exists a significant threat of irreparable injury.” Id. The present case

is not a civil rights case concerning conditions of confinement. Nor is it a class action. 

Petitioner has made no showing of possible irreparable injury to his own ability to litigate this

action absent the broad injunctive orders requested. Nor has petitioner demonstrated that he has

been denied reasonable access to the law library for purposes of preparing his opposition to the

pending motion to dismiss. For these reasons, the undersigned will recommend that petitioner’s

motion for injunctive relief be denied.

To the extent that petitioner’s motion for injunctive relief and his previous motion

for an extension of time can be construed as containing arguments in opposition to dismissal of

his petition, the undersigned will construe both filings as petitioner’s opposition to respondents’

motion.

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PROCEDURAL HISTORY

In the petition before the court, petitioner seeks relief on three grounds. First,

citing the Fourteenth Amendment, the Ex Post Facto Clause, and two state statutes, petitioner

alleges that he “was doubled based in violation of the ex post facto.” Petitioner appears to be

attacking his sentence, but he fails to articulate facts that demonstrate an ex post facto violation. 

Second, citing the Fourteenth Amendment, he alleges that there was insufficient evidence to

convict him. However, he does not describe the evidence presented or explain how the evidence

was insufficient to prove the elements of the charges against him. Third, petitioner alleges

ineffective assistance of trial and appellate counsel in violation of the Sixth Amendment. 

Petitioner claims that trial counsel “failed to move for a dismissal after the jury deadlocked” and

that, but for that failure, “the determination would have been different.” He also alleges that his

defense was rendered moot by trial counsel’s failure to present unspecified facts. He claims that

jurors were polled after the trial and one juror “was uncertain about petitioner’s guilt,” rendering

the verdict “not guilty.” Petitioner alleges that appellate counsel “failed to present the facts on

appeal.” (Pet. at pages numbered (5) & (6).)

Respondents have provided detailed information and documentation regarding

petitioner’s conviction, appeal, and extensive collateral state proceedings. The history set forth

below is drawn from respondents’ moving papers and lodged documents.

Petitioner was convicted on October 6, 1995, and was sentenced on December 4,

1995, to a determinate prison term of fourteen years and four months, as follows: a five-year

term for one count of second degree robbery, with a consecutive four-year term for use of a

firearm in commission of the robbery; a consecutive three-year term for infliction of great bodily

injury; a consecutive one-year term for a second count of second degree robbery, with a

consecutive sixteen-month term for use of a firearm in commission of the robbery.

On appeal, petitioner presented one claim: whether the trial court committed

prejudicial error by giving the modified version of CALJIC No. 2.90 on reasonable doubt. On

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January 17, 1997, the California Court of Appeal for the Third Appellate District, affirmed the

conviction. The California Supreme Court denied review on March 26, 1997.

Petitioner’s first state habeas petition was filed in the California Supreme Court

on January 7, 1998. Petitioner alleged prejudice arising from the consolidation of two cases;

speedy trial violations; due process violations with regard to the selection of jurors; inadmissible

or tainted testimony; a conspiracy between the victims of the two robberies; ineffective

assistance of trial counsel for allowing the speedy trial violations and consolidation of the two

cases, as well as for failure to investigate, failure to challenge identification procedures, improper

reliance on police investigators, and failure to contact petitioner’s friends and acquaintances to

determine their possible usefulness as witnesses; and ineffective assistance of appellate counsel

for failing to raise meritorious issues on appeal. The habeas petition was summarily denied by

the state’s highest court on April 29, 1998.

On August 6, 1998, petitioner filed a habeas petition in the San Joaquin County

Superior Court, raising the same claims that were denied by the California Supreme Court on

April 29, 1998. After the trial court denied the petition on its merits in a written decision filed

November 17, 1998, petitioner proceeded to the California Court of Appeal for the Third

Appellate District, with a petition filed December 7, 1998. That petition was denied on

December 17, 1998.

While petitioner was still pursuing the claims raised in his first habeas petition,

although not in sequence from trial court to court of appeal to the state’s highest court, he

commenced a round of petitions in which he sought modification of his sentence on the basis of

alleged errors in the application of state sentencing law. This round began with the filing of a

habeas petition in the San Joaquin County Superior Court on December 7, 1998. The petition

was denied on its merits in a written order filed January 22, 1999. On February 18, 1999,

petitioner sought review of the denial by the California Supreme Court. The petition for review

was summarily denied on May 26, 1999. On May 24, 1999, petitioner filed his second habeas

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petition in the court of appeal, alleging the same claim presented to the trial court on December

7, 1998. The court of appeal denied the petition on June 10, 1999. On July 8, 1999, the

California Supreme Court received petitioner’s untimely petition for review of the June 10, 1999

decision. After petitioner complied with the court’s instruction to file an application for relief

from default, the petition for review was filed on August 10, 1999. The California Supreme

Court summarily denied the petition on November 23, 1999.

On January 7, 2002, petitioner filed his third habeas petition in the San Joaquin

County Superior Court. In this petition, subtitled“Recall of the Remittitur,” petitioner alleged an

illegal enhancement and ineffective assistance of trial and appellate counsel with regard to the

enhancement. In a written decision filed March 26, 2002, the trial court denied the petition on its

merits. Petitioner presented the same claims to the California Court of Appeal for the Third

Appellate District, in a habeas petition filed April 5, 2002. The petition was summarily denied

on April 11, 2002. On May 20, 2002, petitioner alleged the same claims in his fourth habeas

petition filed in the California Supreme Court. The petition was summarily denied, with

citations to In re Clark and In re Robbins, on September 11, 2002.

On May 13, 2003, petitioner filed a fourth habeas petition in the San Joaquin

County Superior Court, alleging violations of state law with regard to his sentence and in the

pronouncement and entry of judgment, along with ineffective assistance of counsel with respect

to his sentence and judgment. Petitioner sought a new sentencing hearing. The petition was

denied by the trial court in a written decision filed June 12, 2003, finding that petitioner had

failed to make a prima facie showing for relief and that the petition was both delayed and

successive. Petitioner then presented the same claims to the California Court of Appeal for the

Third Appellate District, in a petition filed July 8, 2003. The petition was summarily denied on

July 10, 2003. It does not appear that petitioner sought review of these claims in the California

Supreme Court.

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Petitioner’s federal habeas petition, dated October 4, 2004, was received for filing

in the Fresno Division of this court on October 6, 2004.

ANALYSIS

I. Exhaustion

The exhaustion of state court remedies is a prerequisite to the granting of a

petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must

be waived explicitly by respondents’ counsel. 28 U.S.C. § 2254(b)(3). A petitioner satisfies the

exhaustion requirement by fairly presenting to the highest state court all federal claims before

presenting them to the federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam);

Picard v. Connor, 404 U.S. 270, 276 (1971); Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996). 

A federal claim is fairly presented if the petitioner has described the operative facts and legal

theory upon which each claim is based. Bland v. California Dep’t of Corrections, 20 F.3d 1469,

1473 (9th Cir. 1994).

After reviewing petitioner’s federal habeas petition and considering the issues

presented to the California Supreme Court on appeal and on habeas, the undersigned finds that

petitioner has not exhausted state court remedies on any claim alleged in his federal habeas

petition. In the absence of at least one exhausted claim, the court cannot entertain a motion to

stay this action and must dismiss it. See Jimenez v. Rice, 276 F.3d 478, 481-82 (9th Cir. 2001);

Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir. 1997). The petition will be dismissed with

prejudice if it has been filed in violation of the statute of limitations, as any exhausted claims

presented to the federal court at a later time would also be time-barred.

II. Statute of Limitations

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

one-year period of limitation applies to a petition for writ of habeas corpus filed in federal court

by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). The

period of limitation applies to all federal habeas petitions filed after the statute was enacted. 

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Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Because this action was filed in 2004, the

AEDPA period of limitation is applicable to the petition.

For most prisoners, the one-year period of limitation begins to run when the

judgment of conviction becomes final by the conclusion of direct review or the expiration of the

time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A). It does not appear that any other

provision of § 2244(d)(1) is applicable to this case.

Respondents contend that the record confirms that petitioner filed his federal

habeas petition long after the expiration of the one-year statute of limitations. The record reflects

that petitioner’s judgment became final on June 24, 1997, upon expiration of the ninety-day

period during which petitioner could have filed a petition for writ of certiorari with the United

States Supreme Court after the California Supreme Court denied review on appeal on March 26,

1997. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). Accordingly, the

undersigned finds that petitioner was required to file his federal habeas petition within one year

after June 24, 1997, unless tolling provisions apply.

“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 the AEDPA statute of limitations. 28 U.S.C. § 2244(d)(2). The statute of

limitations is not tolled, however, during the interval between the date on which a judgment

becomes final and the date on which the petitioner files his first state collateral challenge. Nino

v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).

In this case, petitioner’s first state habeas petition was filed in the California

Supreme Court on January 7, 1998. The petition bears the date of January 4, 1998. The

undersigned will give petitioner the benefit of the doubt and assume that petitioner delivered his

petition to prison officials for mailing on January 4, 1998. Based on that assumption, the statute

of limitations started running on June 25, 1997, the day after petitioner’s judgment became final,

and ran until January 4, 1998, when petitioner stopped the clock by delivering his first

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application for post-conviction relief to prison officials for mailing. As of January 4, 1998, 193

days of the one-year period of limitation had elapsed, and 172 days remained.

Petitioner’s first state habeas petition was denied by the California Supreme Court

on April 28, 1998. Under the California Rules of Court then in effect, the decision became final

on May 28, 1998. See Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir. 2001) (per curiam). 

Although petitioner filed two additional habeas petitions raising the same claims, those petitions

were filed in the trial court and the Court of Appeal and were not part of a complete round of

petitions that started in the trial court and progressed to successively higher courts. As a result,

petitioner is entitled to statutory tolling while the two subsequent petitions were pending and

during the interval between them, but he is not entitled to statutory tolling during the interval

between the California Supreme Court’s decision on the first habeas petition and the filing of the 

next habeas petition in a lower court. See Carey v. Saffold, 536 U.S. 214, 223 (2002); Gaston v.

Palmer, 417 F.3d 1050, 1051 (9th Cir. 2005). The statute of limitations therefore resumed

running on May 29, 1998, and ran until petitioner mailed the petition to the trial court on August

3, 1998. The period of limitation ran for 36 days between May 28, 1998, and August 3, 1998,

and 136 days of the one-year period of limitation remained at that time.

The statute of limitations was tolled from August 3, 1998, to January 17, 1999,

while petitioner proceeded from the trial court to the court of appeal, and the court of appeal’s

decision became final thirty days after it was issued on December 17, 1998. The statute did not

resume running on December 18, 1998, however, because petitioner had commenced another

round of collateral review when he mailed a second habeas petition, raising new claims, to the

trial court on December 1, 1998. Petitioner was entitled to statutory tolling on the new round

until December 23, 1999, i.e., thirty days after the California Supreme Court denied the final

petition in that round. The statute of limitations resumed running on December 24, 1999, and ran

without further interruption for the 136 days that remained of the one-year period of limitation. 

Accordingly, the statute of limitations expired on May 7, 2000.

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Petitioner commenced another round of habeas petitions with a petition dated

January 3, 2002, which was filed in the trial court on January 7, 2002. That round was

commenced more than a year and a half after the statute of limitations had expired and ended on

October 11, 2002, thirty days after the California Supreme Court denied the third petition in that

round. Petitioner commenced a final round of review with a petition mailed April 30, 2003. 

That round ended on August 9, 2003, thirty days after the Court of Appeal denied the final state

habeas petition filed by petitioner. However, state habeas petitions filed after the one-year statute

of limitations has expired do not revive the statute and have no tolling effect. See Ferguson v.

Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir.

2001). Petitioner’s federal habeas petition was mailed more than four years after the statute of

limitations expired on May 7, 2000. This action is therefore barred and should be dismissed with

prejudice unless petitioner is entitled to equitable tolling for substantial periods of time.

The doctrine of equitable tolling has been applied in cases where a party was

prevented from asserting a claim by wrongful conduct on the part of the opposing party or where

extraordinary circumstances beyond the party’s control made it impossible for him to file a claim

on time. Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996). 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)). “[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 & n.8 (2005). Equitable tolling will be

unavailable in most cases. See Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002); Miles v.

Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).

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Petitioner’s motion for extension of time includes a section titled “Equitable

Tolling.” (Pet’r’s Mot. for Extension of Time filed Apr. 15, 2005, at 3-4.) The undersigned has

given careful consideration to the arguments presented in petitioner’s motion for extension of

time and in his subsequent motion for injunctive relief. Petitioner has not suggested a basis for

equitable tolling during any specific period of time relevant to this case and has not shown that

extraordinary circumstances stood in the way of his filing a timely federal habeas petition. 

Petitioner has failed to demonstrate his entitlement to equitable tolling.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Petitioner’s June 15, 2005 motion for writ of mandate/prohibition be denied; 

2. Respondents’ March 15, 2005 motion to dismiss be granted; and

3. This action be dismissed with prejudice because the petition presents only

unexhausted claims and was filed beyond the one-year statute of limitations.

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: January 18, 2006.

DAD:13

fost2281.mtd

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