United States District Court, D. Oregon
OPINION AND ORDER
Michael W. Mosman, Chief 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. 1) is
DENIED, and this case is DISMISSED.
March 13, 2003, a Jackson County grand jury indicted
Petitioner for the murder of his estranged wife. Resp't
Exs. (ECF No. 18), Ex. 102. Petitioner entered a "no
contest" plea, and the trial court sentenced him to life
imprisonment with a minimum incarceration term of 25 years.
Resp't Exs. 103, 104. Petitioner now seeks habeas relief
on several grounds, including that his "no contest"
plea was not knowing, intelligent, and voluntary. Resp't
directly appealed the trial court's judgment, but on
February 21, 2007, the Oregon Court of Appeals affirmed
without opinion. State v. Glick, 211 Or.App. 148
(2007). Petitioner did not seek review from the Oregon
Supreme Court, making his judgment of conviction final as of
March 28, 2007. Resp't Ex. 108.
trial counsel filed an initial Petition for post-conviction
relief (PCR) on September 15, 2008. Resp't
Ex.156. Following a series of evidentiary
hearings, the PCR trial court granted Petitioner's motion
to amend his Petition. Resp't Ex. 109. But on July 26,
2012, the PCR trial court denied relief on the merits.
Resp't Ex. 147. Petitioner appealed, but the Oregon Court
of Appeals affirmed without opinion and the Oregon Supreme
Court denied review. Glick v. Premo, 271 Or.App. 862
(2015); 358 Or. 69 (2015). His state post-conviction appeal
became final November 10, 2015. Resp't Ex. 155.
20, 2016, Petitioner signed his Petition for Writ of Habeas
Corpus, alleging four grounds for relief. Pet. at 4-8.
Respondent asks this Court to dismiss the Petition because it
was filed long after the one-year statute of limitations
expired. 28 U.S.C. § 2244(d)(1). Though Petitioner
disputes the exact dates relevant to the calculation, he
concedes untimeliness. However, according to Petitioner he is
entitled to equitable tolling due to numerous errors
committed by post-conviction trial and appellate counsel.
Antiterrorism and Effective Death Penalty Act (AEDPA) 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). The limitations
period is statutorily tolled while a "properly
filed" state petition for post-conviction relief is
pending. 28 U.S.C. § 2244(d)(2).
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). The extraordinary
circumstance raised must be both the but-for cause and the
proximate cause of the untimeliness. Compare Allen v.
Lewis, 255 F.3d 798, 800 (9th Cir. 2001) (twenty-seven
day interruption in prisoner's access to legal materials
during prison transfer was not an extraordinary
circumstance), with Espinoza-Matthews v. California,
432 F.3d. 1021 (9th Cir. 2005) (prisoner's eleven-month
deprivation of paperwork related to his legal case was the
cause of his untimeliness), and Bryant v. Arizona Atty,
Gen., 499 F.3d 1056 (9th Cir. 2007) (departmental order
eliminating case law from prison library was not the but-for
cause of prisoner's untimely filing), and Yeh v.
Martel, 751 F.3d 1075, 1077 (9th Cir. 2014)
(prisoner's limited English proficiency and mental
impairment were not the cause of his untimely filing where he
received translation assistance and managed to file state
habeas petitions in three different state courts during the
federal limitations period).
or omissions of counsel may warrant equitable tolling in rare
cases. Holland, 560 U.S. at 648 (the determination
must be made on a case-by-case basis); see e.g., Spitsyn
v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)
(counsel's failure to file federal habeas petition
despite payment and repeated requests, followed by failure to
return requested file, was an extraordinary circumstance);
Rudin v. Myles, 781 F.3d 1043, 1056-57 (9th Cir.
2015) (post-conviction counsel's repeated failure to
respond to prisoner's attempts to contact him was
tantamount to client abandonment, warranting equitable
tolling); Luna v. Kernan, 784 F.3d 640 (9th Cir.
2015) (counsel's misrepresentation to prisoner that
petition was timely filed, though none was, transcends garden
variety negligence and constitutes an extraordinary
attorney negligence, including miscalculation of the
limitations period, is not an extraordinary circumstance
warranting equitable tolling. Lawrence v. Florida,
549 U.S. 327 (2007) (same); accord Miranda v.
Castro, 292 F.3d 1063, 1065 (9th Cir. 2002)
(attorney's miscalculation of the filing deadline is not
an extraordinary circumstance, particularly in postconviction
proceedings where the constitution does not afford the right
case at bar, Petitioner had until March 28, 2008, to timely
seek federal habeas relief or toll the limitations period by
properly filing for state post-conviction relief Instead, he
allowed 537 un-tolled days to elapse, until September 15,
2008, when he filed his initial petition for postconviction
relief Resp't Ex. 156. According to Petitioner, this