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Cruse v. Russell

United States District Court, W.D. Washington, Seattle

March 20, 2015

REX B CRUSE, Petitioner,
v.
SCOTT RUSSELL, Respondent.

ORDER ON REPORT AND RECOMMENDATION

MARSHA J. PECHMAN, Chief District Judge.

THIS MATTER comes before the Court on Petitioner Rex B. Cruse's Objections (Dkt. No. 21) to the Report and Recommendation of the Honorable Mary Alice Theiler, United States Magistrate Judge. (Dkt. No. 14.) Having reviewed Petitioner's Objections, the Report and Recommendation, and all related papers, the Court hereby ADOPTS in part and DECLINES TO ADOPT in part the Report and Recommendation. The Court DISMISSES Petitioner's habeas petition and this action with prejudice as time-barred, and GRANTS Petitioner a certificate of appealability on the question of whether he is entitled to equitable tolling.

Background

Petitioner raises five objections to Judge Theiler's Report and Recommendation: (1) Petitioner's claims should not be found to be time-barred because the statute of limitations should be equitably tolled; (2) the pro se prisoner summary judgment fair notice rule should be extended to require the government to give notice to prisoners regarding the timeline to file a habeas action; (3) Petitioner is unsure what the term "traverse" means and does not know how to file one; (4) Petitioner has made a substantial showing of the denial of his constitutional rights; and (5) Petitioner should be granted a certificate of appealability.

Discussion

I. Legal Standard

Under Fed.R.Civ.P. 72, the Court must resolve de novo any part of the Magistrate Judge's Report and Recommendation that has been properly objected to and may accept, reject, or modify the recommended disposition. Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

II. Petitioner's Objections to the Report and Recommendation

A. Claims time-barred

Petitioner first objects to Judge Theiler's ultimate conclusion that Petitioner's claims are time-barred. (Dkt. No. 21 at 1-8.) Judge Theiler found that Petitioner's claims were time-barred because the one-year limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1), expired on July 9, 2013, and Petitioner did not file his habeas petition until July 18, 2014, over one year later. (Dkt. No. 14 at 2-3.) Judge Theiler found that Petitioner made no showing that he is entitled to equitable tolling of the statute of limitations. (Id. at 3.)

Petitioner argues that the statute of limitations should be equitably tolled because of extraordinary circumstances beyond his control, including being misinformed by his direct appeal attorney and Washington Corrections Center law clerks about the procedures to follow in challenging his conviction, being unable to meaningfully access law library resources in his prison, and being generally unaware of when a federal habeas action's statute of limitations begins to run. (Dkt. No. 21 at 1-6.)

Equitable tolling is available "only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time and the extraordinary circumstances were the cause of his untimeliness." Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (internal quotation marks and citation omitted). To be entitled to equitable tolling, a 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 v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (emphasis deleted). In other words, equitable tolling may be appropriate when external forces, rather than a petitioner's lack of diligence, prevent timely filing. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).

Here, Petitioner argues that he has been pursuing his rights diligently, and identifies the following as extraordinary circumstances that made it impossible for him to file the petition on time: (1) Petitioner was told by his direct appeal attorney and Washington Corrections Center law library clerks that he was required to exhaust all possible state remedies before filing a federal habeas action, and Petitioner did not know how soon the federal statute of limitations would begin to run; (2) Petitioner did not think to consider the Antiterrorism and Effective Death Penalty Act of 1996 as a source of applicable law because he was not convicted of a terrorism-related crime and was not sentenced to death; and (3) security procedures at Petitioner's prison make it difficult to meaningfully access the law library, constituting an illegal or unconstitutional impediment that prevented him from filing his petition sooner. (Dkt. No. 21 at 2-6.)

The Ninth Circuit has, as a general matter, rejected a prisoner's reliance on erroneous third-party advice as a basis for equitable tolling. See Miranda v. Castro, 292 F.3d 1063, 1067-68 (9th Cir. 2002). Similarly, while the Court is sympathetic to the challenges faced by a pro se prisoner in navigating the post-conviction legal landscape, lack of knowledge about the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") or AEDPA's applicability to federal habeas actions does not constitute an extraordinary external force that made it impossible for Petitioner to file a timely petition. Lack of access to legal materials on AEDPA in a prison library, however, can justify equitable tolling in certain circumstances. See Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc). Here, Petitioner alleges he has access to the library only three nights a week, for one to two and a half hours at a time. (Dkt. No. 21 at 4.) Petitioner alleges that it can take up to two weeks to schedule a library visit, and that scheduled library visits are frequently canceled due to security recalls. (Id. at 4-5.) Petitioner alleges that the law library was closed completely for three months in "late" 2014. (Id. at 4.) Petitioner also alleges that the library staff supervisor works only two to three times a week and is not available during the times when prisoners have access to the library, and that the inmate clerks working in the library are not able to provide meaningful assistance with the computers, which are the only sources of information since the prison removed all ...


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