United States District Court, D. Oregon
OPINION AND ORDER
MALCOLM F. MARSH UNITED STATES DISTRICT JUDGE.
is currently in the custody of the Oregon Department of
Corrections. He brings this habeas corpus proceeding pursuant
to 28 U.S.C. § 2254. For the reasons set forth below,
Petitioner's Habeas Corpus Petition (ECF No. 2) is
DENIED, and this case is DISMISSED.
challenges his 2004 convictions for numerous offenses,
including attempted rape, sexual abuse, and attempted
aggravated murder. Resp't Exs. (ECF No. 18), Ex. 101. On
May 28, 2004, the trial court entered a judgment of
conviction in Multnomah County No. 03-05-32646 ("sex
offense convictions"). Id. at 24-27. In July
2004, the trial court entered a judgment of conviction in
Multnomah County No. 03-09-34393 ("attempted murder
convictions"). Id. at 14-22.
directly appealed both judgments. The Oregon Court of Appeals
affirmed the sex offense convictions without opinion, and the
Oregon Supreme Court denied review. State v.
Gonzales-Gutierrez, 209 Or.App. 170 (2006), rev.
denied, 342 Or. 473 (2007). The Oregon Court of Appeals
affirmed the attempted murder convictions in part, and
vacated and remanded in part "for entry of judgment of
one conviction for attempted murder as to each victim, and
resentencing." Resp't Ex. 115 at 9. The Oregon
Supreme Court denied review. State v.
Gonzales-Gutierrez, 216 Or.App. 97 (2007), rev.
denied, 344 Or. 194 (2008). Both appellate judgments
issued March 18, 2008. Resp't Exs. 110, 120. After the
trial court entered an amended judgment of conviction on the
attempted murder convictions, Petitioner filed a notice of
appeal. Resp't Exs. 121. However, Petitioner then moved
to dismiss that appeal, causing the Oregon Court of Appeals
to issue an appellate judgment dismissing the appeal on
September 23, 2009. Resp't Exs. 122, 123.
April 2007, Petitioner filed, pro se, his initial
petition for post-conviction relief (PCR) on the sex offense
convictions. Resp't Ex. 124. It was dismissed March 23,
2011, after the Oregon Court of Appeals held that the PCR
trial court did not have jurisdiction because the sex offense
convictions were still on direct appeal at the time the PCR
trial court denied relief. Resp't Exs. 124, 143.
Meanwhile, in March 2009, Petitioner retained an attorney.
Decl. (ECF No. 28) Attach. 1. On May 31, 2011, Petitioner
filed a counseled PCR petition on the sex offense
convictions, but the court denied relief. Resp't Exs.
145, 189. On September 20, 2011, Petitioner filed a counseled
PCR petition on the attempted murder convictions, but the
court denied relief. Resp't Exs. 190, 197. The Oregon
Court of Appeals consolidated the appeals, and affirmed the
PCR court. Gutierrez v. Nooth, 21S Or. App. 171
(2015). The Oregon Supreme Court denied review. Gutierrez
v. Nooth, 359 Or. 39 (2016). The appellate judgment
became final May 25, 2016. Resp't Ex. 209.
signed his instant Petition for Writ of Habeas Corpus on
October 5, 2016, alleging numerous grounds for relief,
including ineffective assistance of trial counsel, trial
court error, and governmental misconduct. Pet. (ECF No. 2).
Respondent urges this Court to dismiss the Petition because
it was filed after the one-year statute of limitations
expired. 28 U.S.C. § 2244(d)(1).
Petitioner concedes the Petition is untimely, but argues he
is entitled to equitable tolling because retained PCR counsel
failed to monitor the federal deadline. Pet'r's Br.
in Supp. (ECF No. 27) at 2-4.
Antiterrorism and Effective Death Penalty Act imposes a
one-year statute of limitations on a petition for writ of
habeas corpus filed "by a person in custody pursuant to
the judgment of a State court." 28 U.S.C. §
2244(d)(1). The limitations period runs from the latest of
"the date on which the judgment became final by the
conclusion of direct review or the time for seeking such
review." 28 U.S.C. § 2244(d)(1)(A); Zepeda v.
Walker, 581 F.3d 1013, 1016 (9th Cir. 2009) ("The
period of direct review after which a conviction becomes
final includes the 90 days during which the state prisoner
can seek a writ of certiorari from the United States Supreme
Court.") (citing Bowen v. Roe, 188 F.3d 1157,
1159-60 (9th Cir. 1999) (same)). The limitations period is
statutorily tolled while a "properly filed" state
petition for post-conviction relief is pending. 28 U.S.C.
one-year limitations period may be equitably tolled upon a
showing that (1) the petitioner pursued his rights
diligently, and (2) some extraordinary circumstance stood in
his way and prevented timely filing. Holland v.
Florida, 560 U.S. 631, 632 (2010); Fue v.
Biter, 842 F.3d 650, 657 (9th Cir. 2016); Luna v.
Kernan, 784 F.3d 640, 646 (9th Cir. 2015). The
extraordinary circumstance raised must be both the but-for
cause and the proximate cause of the untimeliness. Allen
v. Lewis, 255 F.3d 798, 800 (9th Cir. 2001). The inquiry
sets a high bar, reserving equitable tolling for rare cases.
Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014);
Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).
A petitioner "bears the burden of showing that this
extraordinary exclusion should apply to him."
Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir.
cannot meet this burden. Petitioner argues PCR counsel
created an "extraordinary circumstance" by leading
Petitioner "to believe that his federal habeas corpus
petition would be timely if he filed it at the conclusion of
his [state] PCR proceedings." Pet'r's Br. in
Supp. at 6. According to Petitioner, although PCR counsel
timely prosecuted the state PCR cases, he failed to monitor
federal deadlines and even advised Petitioner in an April 8,
2016, letter (years after the federal limitations period had
expired) that Petitioner should appeal to the United States
Supreme Court as well as petition for federal habeas relief.
Decl. (ECF No. 28) Attach. 4.
assuming PCR counsel acted negligently, the error alleged by
Petitioner would not constitute an "extraordinary
circumstance" under equitable tolling law. See
Maples v. Thomas, 565 U.S. 266, 281 (2012) (restating
"that an attorney's negligence, for example,
miscalculating a filing deadline, does not provide a basis
for tolling a statutory time limit") (citing Holland
v. Florida, 560 U.S. 631, 651-52 (2010) and Lawrence
v. Florida, 549 U.S. 327, 336-37 (2007)); see also
Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)
(finding that the petitioner's inability to correctly
calculate the limitations period prescribed by 28 U.S.C.
§ 2244 was not a basis for equitable tolling);
Vanderpool v. Popoff, No. 2:15-cv-01199-PK, 2017 WL
1102754, *2 (D. Or. Feb. 14, 2017) (same). Similar to counsel
in the above cited cases, here PCR counsel's alleged
error amounted to garden variety negligence, not professional
misconduct warranting equitable tolling. Cf. Luna v.
Kernan, 784 F.3d 640 (9th Cir. 2015) (finding counsel
affirmatively mislead the petitioner to believe a timely
petition had been filed, in additional to committing other
professional misconduct, thereby transcending garden variety
negligence and constituting an "extraordinary
Petitioner asks this Court to conduct an evidentiary hearing
so he can testify that he believed his federal habeas
petition would be timely if he filed it at the conclusion of
his state PCR proceedings. Pet'r's Br. in Supp. at 7.
Even if credited, however, this testimony would not establish
the basis for equitable tolling. Therefore, Petitioner's
request for an evidentiary hearing is denied. See, e.g.,
Schriro v. Landrigan,550 U.S. 465, 474 (2007) (finding