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United States District Court

Eastern District of California

Jose Soria,

Petitioner, No. Civ. S 04-2694 FCD PAN P

vs. Findings and Recommendations

Edward S. Alameida, et al.,

Respondents.

-oOoPetitioner, a prisoner without counsel, seeks a writ of

habeas corpus. See 28 U.S.C. § 2254. Respondent moves to dismiss

upon the ground the petition is untimely. Petitioner opposes.

November 16, 2000, petitioner was convicted.

Petitioner appealed. April 15, 2002, the appellate court

found sentencing error and modified the sentence accordingly but

otherwise affirmed the judgment.

Petitioner did not file a petition for review in the 

California Supreme Court.

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2

January 31, 2003, petitioner filed a petition for a writ of

habeas corpus in the California Supreme Court. September 17,

2003, the court denied relief.

September 15, 2004, petitioner filed a petition for a writ

of habeas corpus in federal court.

December 23, 2004, petitioner filed a petition for a writ of

habeas corpus in the California Supreme Court. The petition is

pending.

A one-year limitation period for seeking federal habeas

relief begins to run from the latest of the date the judgment

became final on direct review, the date on which a state-created

impediment to filing is removed, the date the United States

Supreme Court makes a new rule retroactively applicable to cases

on collateral review or the date on which the factual predicate

of a claim could have been discovered through the exercise of due

diligence. 28 U.S.C. § 2244(d)(1). The judgment of the

appellate court became final May 15, 2002, 30 days after the

court filed its opinion. See California Rules of Court, Rules

33.1, 24(1). A properly filed state post conviction application

tolls the statute of limitations. 28 U.S.C. § 2244(d)(2). In

California, a properly filed post conviction application is

“pending” during the intervals between a lower court decision and

filing a new petition in a higher court. Carey v. Saffold, 536

U.S. 214, 223 (2002).

Absent tolling, petitioner had until May 15, 2003, to file a

petition in federal court. 

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3

Granting petitioner 229 days’ tolling for the time the

January 31, 2003, habeas petition was pending in the California

Supreme Court, petitioner had until December 30, 2003, to file a

petition in federal court. The December 23, 2004, petition in

the California Supreme Court provides no basis for statutory

tolling because it was filed after the limitation period expired. 

See Fergusun v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)

(section 2244(d) does not permit re-initiation of the limitation

period when it expires before a timely state petition for postconviction relief was filed).

Petitioner contends he is entitled to equitable tolling.

Equitable tolling may be granted only where “extraordinary

circumstances beyond a prisoner’s control make it impossible to

file a petition on time.” Calderon v. United States District

Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998)(en banc) cert.

denied, 526 U.S. 1060 (1999)(quotations and citation omitted). 

“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). Petitioner must show extraordinary circumstances caused

the untimeliness. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.

2003).

Petitioner asserts limited access to the law library is an

extraordinary circumstance. A prison lockdown preventing law

library use during a negligible portion of the limitation period

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1

 I note petitioner’s placement was a disciplinary measure for

petitioner’s possession of a weapon and so it was not a circumstance outside

his control.

4

is not necessarily an extraordinary circumstance. Sanchez v.

Cambra, 2005 WL 1529834 (C. A. 9 (Cal.)) (denial of access to law

library for 10 days not extraordinary circumstance where

petitioner did not use library when given the opportunity). 

Petitioner alleges the Northern Hispanic population at Salinas

Valley State Prison, of which he is a member, has been on

lockdown since he arrived February 1, 2002, until the present. 

He asserts he was denied library time for four months but he

otherwise had access to the law library according to a rotation

schedule or upon proof of a court-imposed filing date.

Petitioner does not identify the four-month period when he

was denied library time but it does not matter because he does

not assert lack of access during the remaining eight months. In

any event, he filed a habeas petition in the California Supreme

Court before the limitation period expired and so even if the

lockdown is extraordinary, petitioner fails to satisfy his burden

under Spitsyn because he has not explained why he could file in

state court but not in federal court, which requires all claims

first be presented to the state court.

Petitioner also alleges he had no access to the law library

while he was in administrative segregation1 from February 2,

2004, until July 1, 2004. But this is inapposite because the

limitation period already had expired.

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For these reasons, I find the September 15, 2004, petition

is untimely. 

I therefore recommend this action be dismissed.

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Within 20 days after being

served with these findings and recommendations, petitioner may

file written objections. The document should be captioned

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

The district judge may accept, reject, or modify these findings

and recommendations in whole or in part.

Dated: August 30, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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