David Fuschak v. Gary Swarthout

MEMORANDUM

David Fuschak challenges the dismissal of his federal habeas petition as untimely, arguing that he is entitled to both statutory and equitable tolling of the one-year statute of limitations. We need not address all of the grounds Fuschak asserts as a basis for tolling. To prevail on appeal, he must establish entitlement to either statutory or equitable tolling for the period between the denial of his state trial court habeas petition and the filing of his habeas petition in the California Court of Appeal. He has not established entitlement to either form of tolling.

1. To be entitled to statutory tolling, Fuschak must show that he filed his Court of Appeal petition in a timely manner. See Stewart v. Cate, 757 F.3d 929, 935 (9th Cir.2014). Following the denial of his state trial court petition, Fuschak took 103 days to file his next petition in the Court of Appeal. Under California law, delays of this length are unreasonable absent a showing of good cause. See id. at 935-36 . Fuschak asserts that his lack of access to the prison law library and his mental illness justify the 103-day delay. However, he did not adequately explain to the state courts why he needed more…