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Glick v. Premo

United States District Court, D. Oregon

July 31, 2018

JEFF PREMO, Respondent.


          Michael W. Mosman, Chief United States District Judge.

         Petitioner 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.


         On 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 Ex. 101.

         Petitioner 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[1]. Resp't Ex. 108.

         PCR trial counsel filed an initial Petition for post-conviction relief (PCR) on September 15, 2008. Resp't Ex.156.[2] Following a series of evidentiary hearings, the PCR trial court granted Petitioner's motion to amend his Petition. Resp't Ex. 109.[3] 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.

         On June 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.


         The 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).

         The 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).

         Actions 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 circumstance).

         However, 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 to counsel).


         In the 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 period[4] ...

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