United States District Court, D. Oregon
OPINION AND ORDER
Aiken United States District Judge
brings this petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, alleging trial court error and
ineffective assistance of trial counsel. Respondent argues
that the petition is untimely and petitioner's claims are
barred by the statute of limitations. I agree and dismiss the
April 2003, after trial by jury, petitioner was convicted of
two counts of Burglary in the First Degree, two counts of
Rape in the First Degree, three counts of Unlawful Sexual
Penetration in the First Degree, one count of Sexual Abuse in
the First Degree, and one count of Fleeing or Attempting to
Elude Police with a Vehicle. Resp't Ex. 101. Petitioner
was sentenced to consecutive and concurrent terms of
imprisonment totaling 415 months. Id.
direct appeal, the Oregon Court of Appeals vacated the
sentences on one ground, remanded the case for resentencing,
and affirmed in all other respects. State v.
Robertson, 203 Or.App. 18, 125 P.3d 20 (2005);
Resp't Exs. 103-105. Petitioner and the State both sought
review from the Oregon Supreme Court; the Court granted the
State's petition for review and denied petitioner's.
Resp't Exs. 106-110. The Court vacated the decision of
the Court of Appeals and remanded the case for
reconsideration. Resp't Ex. 112.
remand, the Court of Appeals declined to exercise discretion
to correct the sentencing error and affirmed petitioner's
original sentence. State v. Robertson, 227 Or.App.
270, 205 P.3d 78 (2009); Resp't Ex. 115. On May 21, 2009,
the appellate judgment issued. Resp't Ex. 116.
15, 2009, petitioner signed a state petition for
post-conviction relief (PCR). Pet'r Ex. 1 (ECF No. 21-1);
Resp't Reply at 2 & n.2 (ECF No. 26). Petitioner
subsequently moved to voluntarily dismiss his PCR petition,
and the judgment of dismissal was entered on April 22, 2010.
Pet'r Ex. 1.
October 19, 2010, petitioner signed a second PCR petition and
the case proceeded to a bench trial. Resp't Exs. 119, 138
at 20-86. The PCR court denied relief, the Oregon Court of
Appeals affirmed without opinion, and the Oregon Supreme
Court denied review. Resp't Exs. 139, 143-44. On November
9, 2016, the PCR appellate judgment issued. Resp't Ex.
November 2, 2017, petitioner filed his federal petition for
writ of habeas corpus alleging numerous claims of trial court
error and ineffective assistance of counsel.
argues that the petition is untimely and barred by the
relevant one-year statute of limitations. See 28
U.S.C. § 2244(d)(1)(A) (a petitioner must file a federal
habeas petition within one year after the relevant conviction
statute of limitations in this case began to run on May 21,
2009, the day final appellate judgment was entered on
petitioner's direct appeal. The limitations period ran
for 25 days until June 15, 2009, when petitioner signed his
first state PCR petition. Id.§ 2244(d)(2) (the
limitations period is tolled during the time in which a
"properly filed" application for state
postconviction relief is "pending"); see
Pet'r Ex. 1; Resp't Reply at 2. After
petitioner's first PCR petition was dismissed on April
22, 2010, the limitations period ran for an additional 180
days until October 19, 2010, when petitioner signed his
second PCR petition. An additional 358 days ran between
November 9, 2016, when the PCR final judgment issued, and
November 2, 2017, when petitioner filed his federal petition.
In total, 563 days elapsed, exceeding the one-year statute of
does not dispute the untimeliness of his petition but argues
that equitable tolling applies. Petitioner is entitled to
equitable tolling "only if extraordinary circumstances
beyond" petitioner's control made "it
impossible to file a petition on time." Miles v.
Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (citation
omitted); see also Holland v. Florida, 560 U.S. 631,
649 (2010) (holding that § 2244 is subject to equitable
tolling). Specifically, petitioner must show '"(1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way' and
prevented timely filing." Holland, 560 U.S. at
649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). A petitioner who fails to file a timely petition due
to his own lack of diligence is not entitled to equitable
tolling. Id. Consequently, equitable tolling is
"unavailable in most cases," as the threshold for
its application is "very high, lest the exceptions
swallow the rule." Miranda v. Castro, 292 F.3d
1063, 1066 (9th Cir. 2002) (citations omitted).
argues that his PCR trial counsel left Oregon and took his
file with her, constituting "extraordinary
circumstances" that caused his untimely filing. However,
petitioner submits no evidence to support this assertion and
fails to explain how counsel's conduct precluded a timely
federal habeas petition. As noted by respondent, different
PCR counsel appealed the PCR judgment on his behalf and
apparently possessed the materials needed to do so.
Resp't Exs. 140, 142. Petitioner does not explain whether
he contacted any of his PCR attorneys or sought information
from them at any time. ...