BACKGROUND

24 On December 17, 2019 (per proof of service), Shawn Jones (“Petitioner”) 25 constructively filed a typed Petition for Writ of Habeas Corpus by a Person in State 26 Custody pursuant to 28 U.S.C. § 2254 (the “Petition”). (Dkt. 1.) 27 The following facts are taken from the Petition, from the Court’s own 28 1 records, or from public records; where necessary, the Court takes judicial notice of 2 the latter. See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that 3 is not subject to reasonable dispute because it … can be accurately and readily 4 determined from sources whose accuracy cannot reasonably be questioned.”); 5 United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take 6 judicial notice of its own records in other cases, as well as the records of an inferior 7 court in other cases.”). 8 Petitioner was convicted in 2014 of armed robbery and related crimes. (Dkt. 9 1 at 2.1) The California Court of Appeal affirmed his conviction. People v. Jones, 10 No. B258757, 2016 WL 816486, 2016 Cal. App. Unpub. LEXIS 1493 (Mar. 2, 11 2016). He next filed a petition for review by the California Supreme Court which 12 was denied on May 11, 2016. See People v. Jones, No. S233664, 2016 Cal. LEXIS 13 3396 (May 11, 2016). He did not file a petition for certiorari in the U.S. Supreme 14 Court. (Dkt. 1 at 5.) 15 Petitioner filed a state habeas petition with the Los Angeles County Superior 16 Court (“LASC Petition”) on August 17, 2017. (Id. at 3.) The LASC Petition was 17 denied in October 2017. (Id. at 4.) Petitioner then filed a second state habeas 18 petition with the California Court of Appeal (“COA Petition”) on January 16, 2018 19 which was denied on January 25, 2018. In re Shawn Jones, Case No. B287510 20 (Cal. Ct. App. Jan. 25, 2018). The California Court of Appeal denied the petition 21 “on the grounds the petition is untimely without sufficient justification and raises 22 issues that should have been raised on appeal. (In re Clark (1993) 5 Cal.4th 750, 23 765-766.) In addition, on the merits, petitioner has not stated facts or provided 24 evidence sufficient to demonstrate a prima facie case for relief.” Id. Petitioner 25 filed his third state habeas petition with the California Supreme Court on June 25, 26 2018, and it was denied on January 23, 2019. In re Shawn Jones, Case No. 27

28 1 The Court refers to the pagination imposed by the Court’s electronic filing system. 1 S249665, 2019 Cal. LEXIS 407 (Jan. 23, 2019). 2 He has no additional state habeas petitions pending. (Dkt. 1 at 10.) 3 On January 6, 2020, the Court ordered Petitioner to show cause why his 4 federal Petition should not be dismissed as untimely. (Dkt. 4.) Petitioner argued 5 that he is due equitable tolling from June 13, 20072 to November 20, 2019, “due to 6 a hand fracture that required extensive surgery and subsequently required a cast.” 7 (Dkt. 5 at 2.) Petitioner states that the “surgery prevented [him] from writing from 8 June 13, 2007 to November 20, 2019,” and that he is still in “physical therapy 9 concerning his right hand.” (Id.) Medical records indicate that on June 13, 2017, 10 Petitioner suffered “Fracture of first metacarpal; Right hand pain; Thumb fracture.” 11 (Id. at 4.) Petitioner also suffers from asthma, dyslipidemia, edema, obesity, 12 anemia, hypertension, and seizures. (Id. at 7, 10.) None of these records mention 13 surgery or a cast. Petitioner submitted a pass for a physical therapy appointment on 14 January 21, 2020. (Id. at 12.) 15 On December 17, 2019, Petitioner was employed as a porter at Delano State 16 Prison making 8¢/hour. (Dkt. 1 at 11.) Petitioner neither filed a prison trust 17 account statement showing how long he was so employed nor paid the $5 filing fee. 18 On February 19, 2020, the Court ordered Petitioner to file his prison trust account 19 statement. (Dkt. 6.) On March 11, 2020, Petitioner filed an application to proceed 20 in forma pauperis (“IFP”) along with a prison trust account statement. (Dkt. 7.) 21 Per this second declaration, Petitioner is not presently employed. (Id. at 1.) The 22 statement shows deposits labelled “I/M Pay – Support” in November and December 23 2019, and similar payments in January and February 2020. (Id. at 5.) The Court 24 assumes that these payments reflect income from working as a porter, because none 25 of the other line items reflect income. 26 27

28 2 Petitioner wrote 2007 but apparently meant 2017. 1 II. 2 DISCUSSION 3 A. Legal Standard. 4 The Ninth Circuit has held that the district court has the authority to raise the 5 statute of limitations issue sua sponte when untimeliness is obvious on the face of 6 the Petition and to summarily dismiss a habeas petition on that ground pursuant to 7 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 8 Courts, so long as the Court “provides the petitioner with adequate notice and an 9 opportunity to respond.” Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001); 10 see also Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir. 2004). 11 1. One-Year Statute of Limitations. 12 This action is subject to the Antiterrorism and Effective Death Penalty Act of 13 1996 (“AEDPA”). 14 AEDPA provides as follows: 15 (d) (1) A 1-year period of limitation shall apply to an application for a 16 writ of habeas corpus by a person in custody pursuant to the judgment 17 of a State court. The limitation period shall run from the latest of-- 18 (A) the date on which the judgment became final by the conclusion of 19 direct review or the expiration of the time for seeking such review; 20 (B) the date on which the impediment to filing an application created 21 by State action in violation of the Constitution or laws of the United 22 States is removed, if the applicant was prevented from filing by such 23 State action; 24 (C) the date on which the constitutional right asserted was initially 25 recognized by the Supreme Court, if the right has been newly 26 recognized by the Supreme Court and made retroactively applicable to 27 cases on collateral review; or 28 (D) the date on which the factual predicate of the claim or claims 1 presented could have been discovered through the exercise of due 2 diligence. 3 (2) The time during which a properly filed application for State post- 4 conviction or other collateral review with respect to the pertinent 5 judgment or claim is pending shall not be counted toward any period 6 of limitation under this subsection. 7 28 U.S.C. § 2244(d). 8 Thus, AEDPA “establishes a 1-year time limitation for a state prisoner to file 9 a federal habeas corpus petition.” Jimenez v. Quarterman, 555 U.S. 113, 114 10 (2009). The statute of limitations period generally runs from “the date on which the 11 judgment became final by the conclusion of direct review or the expiration of the 12 time for seeking such review[.]” 28 U.S.C. § 2244(d)(1)(A). “[F]or a state prisoner 13 who does not seek review in a State’s highest court, the judgment becomes ‘final’ 14 [for purposes of § 2244(d)(1)(a)] on the date that the time for seeking such review 15 expires.” Gonzalez v. Thaler, 565 U.S. 134, 137 (2012). In contrast, where a state 16 defendant seeks direct review in a state’s highest court, the judgment becomes final 17 when time for seeking certiorari review in the U.S. Supreme Court expires. See 18 Jimenez, 555 U.S. at 120. This is because the U.S. Supreme Court has jurisdiction 19 over final decisions of the highest state court “in which a decision could be had” 20 respecting a constitutional right or other federal law. 28 U.S.C. § 1257(a). To 21 appeal to the U.S. Supreme Court, a petition for writ of certiorari must be filed 22 within 90 days after entry of the state court judgment. U.S. Sup. Ct. R. 13. 23 2. Statutory Tolling. 24 AEDPA provides for statutory tolling, as follows: 25 The time during which a properly filed application for State post- 26 conviction or other collateral review with respect to the pertinent 27 judgment or claim is pending shall not be counted toward any period 28 of limitation under this subsection. 1 28 U.S.C. § 2244(d)(2). The U.S. Supreme Court has interpreted this language to 2 mean that AEDPA’s statute of limitations is tolled from the time the first state 3 habeas petition is filed until the California Supreme Court rejects a petitioner’s final 4 collateral challenge, so long as the petitioner has not unreasonably delayed during 5 the gaps between sequential filings. Carey v. Saffold, 536 U.S. 214, 219-21 (2002) 6 (holding that, for purposes of statutory tolling, a California petitioner’s application 7 for collateral review remains pending during the intervals between the time a lower 8 state court denies the application and the time the petitioner files a further petition 9 in a higher state court); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. 10 denied, 529 U.S. 1104 (2000) (The statute is tolled from “the time the first state 11 habeas petition is filed until the California Supreme Court rejects the petitioner’s 12 final collateral challenge.”). Statutory tolling “does not permit the reinitiation of 13 the limitations period that has ended before the state petition was filed[,]” even if 14 the state petition was timely filed. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th 15 Cir.), cert. denied, 540 U.S. 924 (2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th 16 Cir. 2001); Wixom v. Washington, 264 F.3d 894, 898-99 (9th Cir. 2001), cert. 17 denied, 534 U.S. 1143 (2002). 18 AEDPA’s one-year limitation period is subject to statutory tolling during the 19 pendency of a properly filed state application for post-conviction relief. 28 U.S.C. 20 § 2244(d)(2). A state postconviction petition, however, is not “not ‘properly filed’ 21 if it was rejected by the state court as untimely.” Allen v. Siebert, 552 U.S. 3, 6 22 (2007). If a state court denies a petition as untimely and on alternative grounds, the 23 alternative rulings do not make a petition timely and therefore “properly filed.” 24 Bonner v. Carey, 425 F.3d 1145, 1149 n.19 (9th Cir. 2005). 25 If a California court denies a petition by citing In re Clark, 5 Cal. 4th 750, 26 765 (1993), then the denial is based on untimeliness. Walker v. Martin, 562 U.S. 27 307, 310 (2011) (discussing meaning of pinpoint citation to page 765 of Clark). 28 “When a postconviction petition is untimely under state law, that is the end of the 1 matter for purposes of § 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414 2 (2005) (citation, internal quotations, and alteration in original omitted). “Under 3 Pace, if a state court denies a petition as untimely, none of the time before or during 4 the court’s consideration of that petition is statutorily tolled.” Bonner, 425 F.3d at 5 1149. 6 3. Equitable Tolling. 7 In Holland v. Florida, 560 U.S. 631, 649 (2010), the Supreme Court held that 8 AEDPA’s one-year limitation period is also subject to equitable tolling in 9 appropriate cases. However, in order to be entitled to equitable tolling, the 10 petitioner must show both that (1) he has been pursuing his rights diligently, and 11 (2) some extraordinary circumstance stood in his way and prevented his timely 12 filing. See Id. (quoting Pace, 544 U.S. at 418). The Ninth Circuit has held that the 13 Pace standard is consistent with the Ninth Circuit’s “sparing application of the 14 doctrine of equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 15 (9th Cir.), cert. denied, 558 U.S. 897 (2009). Thus, “[t]he petitioner must show that 16 ‘the extraordinary circumstances were the cause of his untimeliness and that the 17 extraordinary circumstances made it impossible to file a petition on time.’” Porter 18 v. Ollison, 620 F.3d 952, 959 (2010) (quoting Ramirez v. Yates, 571 F.3d 993, 997 19 (9th Cir. 2009)). “[T]he threshold necessary to trigger equitable tolling [under 20 AEDPA] is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 21 292 F.3d 1063, 1066 (9th Cir.) (second alteration in original), cert. denied, 537 U.S. 22 1003 (2002). Consequently, as the Ninth Circuit has recognized, equitable tolling 23 will be justified in few cases. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). 24 “To apply the doctrine in ‘extraordinary circumstances’ necessarily suggests the 25 doctrine’s rarity, and the requirement that extraordinary circumstances ‘stood in his 26 way’ suggests that an external force must cause the untimeliness, rather than, as we 27 have said, merely ‘oversight, miscalculation or negligence on [the petitioner’s] part, 28 all of which would preclude the application of equitable tolling.’” Waldron- 1 Ramsey, 556 F.3d at 1011 (alteration in original) (quoting Harris v. Carter, 515 2 F.3d 1051, 1055 (9th Cir. 2008)). 3 “To determine if a petitioner has been diligent in pursuing his petition, courts 4 consider the petitioner’s overall level of care and caution in light of his or her 5 particular circumstances.” Fue v. Biter, 842 F.3d 650, 654 (9th Cir. 2016) (citation 6 omitted). A petitioner “capable of preparing and filing state court petitions” during 7 the time for which they seek equitable tolling, demonstrates that the petitioner “was 8 capable of preparing and filing a [federal] petition during [that same time period].” 9 Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (quoting Gaston v. Palmer, 10 417 F.3d 1030, 1035 (9th Cir. 2005) (first alteration in original)). 11 The burden of demonstrating that AEDPA’s one-year limitation period was 12 sufficiently tolled, whether statutorily or equitably, rests with the petitioner. See, 13 e.g., Pace, 544 U.S. at 418; Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010); 14 Gaston, 417 F.3d at 1034 (as amended); Miranda, 292 F.3d at 1065. 15 B. The Petition Is Untimely. 16 Petitioner’s 2014 conviction became final 90 days after the California 17 Supreme Court denied review, i.e., on August 9, 2016. Absent tolling, his AEDPA 18 filing deadline expired one year later on August 9, 2017. Petitioner did not file any 19 state habeas petitions before August 9, 2017 that could potentially create statutory 20 tolling. Petitioner argues that his hand injury, surgery, and recovery incapacitated 21 him from June 2017 through November 2019, and prevented him from filing the 22 instant Petition on time. (Dkt. 5 at 2.) However, Petitioner was able to file a state 23 habeas petition with the Los Angeles County Superior Court on August 17, 2017, 24 just two months after his hand injury. (Dkt. 1 at 3-4.) Thus, Petitioner’s hand 25 injury did not prevent him from preparing court filings as of August 17, 2017. 26 Petitioner also filed state habeas petitions in January and June of 2018, and it 27 appears that he was working as a porter before November 20, 2019. (Dkt. 1 at 11; 28 Dkt. 5 at 2; Dkt. 7 at 5.) 1 Even if the Court (1) awarded Petitioner some equitable tolling, stopping his 2 AEDPA clock on the date of his hand injury (i.e., June 13, 2017) with 58 days left, 3 (2) re-started the clock on August 17, 2017 (i.e., the filing date of his LASC 4 petition), (3) awarded Petitioner statutory tolling while the LASC petition was 5 pending (i.e., from August 17, 2017 until October 31, 2017), and (4) added 58 days 6 to October 31, then Petitioner’s new AEDPA filing deadline would have been 7 December 28, 2017.3 8 Petitioner cannot receive statutory tolling for his COA petition, because the 9 California Court of Appeal denied it as untimely with a cite to In re Clark, 5 Cal. 10 4th 750, 675-66 (1993). Due to the untimeliness finding, Petitioner also does not 11 receive gap tolling between October 31, 2017, when the Los Angeles County 12 Superior Court denied his first state petition, and January 16, 2018, when Petitioner 13 filed his COA petition. Petitioner also cannot receive statutory tolling for any 14 subsequent state court petitions, because they were filed after his AEDPA deadline 15 expired. 16 Petitioner has the burden of showing he is entitled to sufficient equitable 17 tolling. The 10 pages of medical records he provided with his Petition and in 18 response to the OSC (Dkt. 1, 5) do not substantiate his asserted inability to file a 19 timely federal Petition despite reasonable diligence, especially in light of (1) his 20 state court filings during 2017 and 2018, (2) the fact that a person can type (albeit 21 slowly) using only one hand, and (3) Petitioner’s employment as a porter before 22 November 2019 (which appears inconsistent with his alleged inability to use his 23 right hand until November 20, 2019). 24 Petitioner submitted additional evidence with his objections to the initial

25 3 Equitable tolling is not subject to a stop-clock approach. See Smith v. Davis, 953 26 F.3d 582, 598-99 (9th Cir. 2020) (en banc). The Court uses the stop-clock approach in this “even if” analysis only to demonstrate that even using that 27 approach (which is more favorable to Petitioner than an examination of his 28 diligence during the entire AEDPA limitations period), his claims are untimely. 1 R&R. (Dkt. 13.) That evidence includes more medical records and a declaration 2 from inmate Travis Berry. (Id.) Mr. Berry declares that on December 10, 2019, 3 Petitioner asked for help writing and typing his federal petition. (Id. at 9.) Mr. 4 Berry sat with Petitioner, wrote down his arguments, and then typed the Petition on 5 December 15. (Id.) Petitioner signed it on December 17. (Dkt. 1 at 10.) Mr. 6 Berry’s declaration does not support Petitioner’s arguments for equitable tolling. 7 The declaration demonstrates that despite his hand injury, Petitioner could prepare 8 legal filings with the assistance of other inmates in as few as 7 days, and that he 9 failed to request Mr. Berry’s assistance until December 2019, long after his 10 AEDPA deadline had expired. 11 Per the new medical records, June 13, 2017 x-rays revealed that Petitioner 12 had fractured his first metacarpal incident to “a serious accident” at his prison. 13 (Dkt. 1 at 15; Dkt. 13 at 20.) His right hand was placed in a splint, and he was 14 referred to an orthopedist. (Id.) At the orthopedic evaluation on June 26, 2017, he 15 was placed in a thumb cast and scheduled for a follow-up appointment in three 16 weeks. (Id. at 12.) Petitioner returned to the orthopedist on July 17, 2017, at which 17 time the doctor removed his cast, examined his hand, and found it “unremarkable” 18 for tenderness or swelling. (Id. at 13.) The doctor gave Petitioner a thumb brace. 19 (Id.) 20 On July 26, 2018, Petitioner was evaluated as a candidate for orthopedic 21 surgery due to a new hand injury. (Id. at 14-15.) This time, the fracture was to 22 Plaintiff’s third metacarpal and the surgeon noted it was “following injury at 23 basketball.” (Id.) The surgeon observed that Petitioner’s right hand was 24 “moderately swollen,” and he requested authorization for “internal fixation.” (Id. at 25 15.) Petitioner did not provide any records documenting that surgery was 26 authorized and performed. 27 Petitioner continued to complain of right hand pain in 2018 and 2019, 28 although these records contain no evidence of any treatment. (Id. at 25-35.) 1 | Petitioner underlines “right hand pain” and “orthotic/splint” on one record (id. at 2 || 26) as if to indicate that these items are related, but another record shows that the 3 | “orthotic/splint” was for Petitioner’s feet (id. at 35). 4 In July 2018, x-rays of Petitioner’s right hand revealed “a fracture of the base 5 | of the third metacarpal[.]” (d. at 15.) In November 2018, Petitioner underwent 6 || additional x-rays of his right hand that showed “posttraumatic changes including 7 | first metacarpal deformity” and “fracture deformity at the fifth metacarpal base[.]” 8 | (Ud. at 39.) Another set of x-rays taken on December 20, 2019, showed “no acute 9 | osseous abnormality.” (Id. at 38.) In January and February 2020, Petitioner 10 | received physical therapy to address “chronic right shoulder pain.” Cd. at 37.) 1] Thus, while these new medical records provide additional details about 12 | Petitioner’s hand injuries and his continuing complaints of hand pain, they do not 13 | demonstrate that his hand injuries prevented him from filing a timely federal habeas 14 | petition in 2017. Petitioner constructively filed the instant Petition on December 15 | 17,2019, and his AEDPA deadline expired in August 2017 — or, even granting him 16 | about 2 months of equitable tolling for his initial hand injury, in December 2017 at 17 | the latest. Accordingly, the Petition is untimely. 18 III. 19 CONCLUSION 20 For all these reasons, the Petition should be dismissed as untimely. 21 “hf 22 | DATED: May 27, 2020 Ord 6. Scot? 3 KAREN E. SCOTT

UNITED STATES MAGISTRATE JUDGE

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