1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No. 21-cv-1442-BAS-MSB

12 Petitioner, ORDER: 13 v. (1) GRANTING RESPONDENT’S MOTION 14 OFFICER FISHER, Warden, TO DISMISS [ECF No. 27]; 15 Respondent. (2) DENYING PETITIONER’S MOTIONS 16 FOR DISCOVERY [ECF No. 43] AND FOR APPOINTMENT OF COUNSEL [ECF No. 17 48];

18 (3) OVERRULING PETITIONER’S OBJECTIONS [ECF Nos. 45-46]; 19

20 (4) GRANTING IN PART AND DENYING IN PART PETITIONER’S REQUESTS FOR 21 JUDICIAL NOTICE [ECF Nos. 46, 49]; AND

22 (5) DENYING MOTION REQUESTING SAN DIEGO SHERIFF’S DEPARTMENT TO 23 RECOGNIZE PETITIONER AS PRO SE 24 [ECF No. 50]

25 26 State prisoner Pedro Rodriguez (“Petitioner”) filed a Writ of Habeas Corpus 27 (“Petition”) pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 28 (“AEDPA”),

et seq., on July 28, 2021, approximately 531 days after his 1 deadline to do so under

(d)(1). (Pet., ECF No. 1.) The Petition stems 2 from Petitioner’s 2015 conviction in the California Superior Court for the County of San 3 Diego (“California Superior Court”) for thirteen offenses, for which he sentenced to a 4 collective period of imprisonment of 13 years and four months. (Id.) He is proceeding 5 pro se and in forma pauperis. (See ECF No. 7.) 6 Now before the Court is Respondent’s motion to dismiss the Petition as untimely. 7 (Mot. to Dismiss the Pet. (“MTD”), ECF No. 27; Mem. in supp. of MTD (“Mem.”), ECF 8 No. 27-1.) In support of its MTD, Respondent lodged the records of Petitioner’s 9 underlying criminal case and his state habeas proceedings. (Record, ECF No. 28.)1 10 Petitioner traversed on February 17, 2022. (Traverse, ECF No. 38.) After briefing on the 11 MTD closed, Petitioner filed a motion for leave to amend his Traverse (Mot. for Leave to 12 Amend, ECF No. 51) and then subsequently filed an Amended Traverse, along with 13 exhibits from his state court proceedings (Amended Traverse, ECF No. 53.)2 14 While the MTD was pending, Petitioner filed numerous other motions and 15 objections. In particular, Petitioner filed motions seeking discovery (Mot. for Discovery 16 (“Discovery Mot.”), ECF No. 43) and for appointment of counsel, which is his second 17 such request. (Mot. for Appointment of Counsel (“Appointment Mot.”), ECF No. 48). 18 Petitioner also filed several other miscellaneous documents, including (1) an Objection to 19 Magistrate Judge Michael S. Berg’s March 17, 2022 Order (see First Objection, ECF No. 20 45); (2) an Objection to Respondent’s lodgment at ECF No. 28-18 (see Second 21 Objection, ECF No. 46); (3) a Request for Judicial Notice (Request for Judicial Not. 22 (“RJN”), ECF No. 49); and (4) Request that the San Diego Sheriff recognize Petitioner as 23 a pro se litigant (ECF No. 50). 24 // 25 // 26 1 The state court record is comprised of 20 lodgments, all of which are annexed to ECF No. 28 as 27 separate exhibits. 2 Despite Petitioner’s untimeliness, the Court considers the Amended Traverse in deciding the 28 1 For the reasons set forth herein, the Court GRANTS Respondent’s MTD and 2 DISMISSES the Petition. The Court further DENIES Petitioner’s requests for 3 discovery, for appointment of counsel, and to compel the San Diego Sheriff’s Department 4 to recognize him as a pro se litigant. The Court also GRANTS IN PART and DENIES 5 IN PART Petitioner’s requests for judicial notice. Finally, the Court OVERRULES 6 Petitioner’s Objections. 7 BACKGROUND 8 I. STATE COURT PROCEEDINGS 9 In approximately 2015, Petitioner was convicted in California Supreme Court of 10 eleven offenses involving unlawful sexual conduct with a minor, one count of burglary, 11 and one count of attempting to dissuade a witness from reporting a crime. (ECF No. 28-4 12 at 2.) He appealed the judgment to the California Court of Appeal. (ECF Nos. 28-2, 28- 13 3.)3 The Court of Appeal issued a reasoned opinion affirming the California Superior 14 Court’s judgment on July 19, 2018. (ECF No. 28-4.) Thereafter, Petitioner sought 15 review of the judgment in the California Supreme Court; his request was summarily 16 denied on November 14, 2018, at which point the judgment of conviction became final 17 (“Final Judgment”). (ECF Nos. 28-8, 28-9.) 18 On March 18, 2019, Petitioner constructively filed a habeas petition in the 19 California Superior Court challenging his conviction and sentence, which was denied on 20 April 18, 2019.4 (ECF No. 28-10.) He thereafter constructively filed a habeas petition in 21 the California Court of Appeal on April 29, 2019, which that Court denied in a reasoned 22 3 Petitioner also filed a writ of mandate with the California Supreme Court, which was denied on 23 April 11, 2018. (ECF Nos. 28-6, 28-7.) 4 “Under the ‘mailbox rule,’ a pro se prisoner’s filing of a state habeas petition is deemed filed at 24 the moment the prisoner delivers it to prison authorities for forwarding to the clerk of the court.” 25 Stillman v. LaMarque,

(9th Cir. 2003). Thus, where, as here, a habeas proceeding is brought by a pro se state prisoner, courts look not to the date on which the petition was deemed filed 26 on the record, but rather to the date on which the petition was delivered to prison authorities, i.e., the date on which the document was signed by the petitioner. This date is referred to as the “constructive” 27 filing date. Parker v. Salazar, No. CV 08-04333 RSWL (RZ),

, at *1 n.1 (C.D. Cal. July 28, 2009) (holding that “absent evidence to the contrary,” the constructive filing date is the date on 28 1 decision on May 10, 2019. (ECF Nos. 28-12 at 7, 28-13.) While that habeas petition was 2 pending, on June 1, 2019, Petitioner constructively filed a second habeas petition in the 3 California Court of Appeal in which he principally alleged he had been denied access to 4 his legal files and to a law library since being transferred to San Diego Central Jail (“San 5 Diego Jail”) on approximately March 21, 2019. (ECF No. 28-15.) Both of those habeas 6 petitions were denied. On July 15, 2019, Petitioner constructively filed a habeas petition 7 challenging his conviction and sentence in the California Supreme Court. (ECF Nos. 28- 8 16, 28-17.) The California Supreme Court denied that petition on July 14, 2021 (“Habeas 9 Denial”), stating in full: 10 The petition for writ of habeas corpus is denied. (See In re Robbins (1998)

[courts will not entertain habeas corpus claims that are 11 untimely]; In re Clark (1993)

, 767–769 [courts will not 12 entertain habeas corpus claims that are successive].) Individual claims are denied, as applicable. (See In re Dixon (1953) 41 Cal.2 756, 759 [courts will 13 not entertain habeas corpus claims that could have been, but were not, raised 14 on appeal]; In re Miller (1941)

[courts will not entertain habeas corpus claims that are repetitive].) 15

16 (Habeas Denial, ECF No. 28-18.)5 17 II. FEDERAL HABEAS PROCEEDING 18 On July 28, 2021, Petitioner filed the instant Petition. (See Pet.) Respondent 19 moved to dismiss the Petition as untimely on January 21, 2022, in response to which 20 Petitioner filed a Traverse alleging he is entitled to both statutory and equitable tolling. 21 (See Traverse.) On March 18, 2022, Magistrate Judge Michael S. Berg, to whom this 22 case is assigned, issued an order following a March 17, 2022 teleconference attended by 23 the parties and a representative of the San Diego Sheriff’s Department (see ECF No. 41). 24 (Briefing Order at 2, ECF No. 42.) In the Briefing Order, Magistrate Judge Berg 25 26 5 Petitioner constructively filed a third state habeas petition in approximately April of 2019 in the 27 California Supreme Court, which raised claims concerning the denial of his parole. (ECF No. 28-19.) The California Supreme Court denied that petition as moot on July 14, 2021. (ECF No. 28-20.) 28 1 effectively deemed briefing on Respondent’s MTD complete and opined “there is no 2 reason the Court cannot rule on the [MTD]” based on the record before it. (Id.) 3 Nevertheless, on May 12, 2022, Petitioner constructively filed a Motion for Leave 4 to Amend, seeking to file an Amended Traverse that contains additional arguments in 5 favor of statutory and equitable tolling. (Mot. for Leave.) Although Petitioner did not 6 append an Amended Traverse to his Motion for Leave, he later constructively filed an 7 Amended Traverse on May 21, 2022, along with exhibits from his state court 8 proceedings. (Amended Traverse.) 9 Additionally, Petitioner seeks discovery and appointment of counsel. (See 10 Discovery Mot. and Appointment Mot.) Furthermore, Petitioner constructively filed a 11 document styled as an “Objection” to the Briefing Order on March 30, 2022 (referred to 12 above as the “First Objection”). (ECF No. 45.) The First Objection does not actually 13 challenge the Briefing Order, but rather indicates that Petitioner was not receiving “mail 14 or legal mail” during his confinement in the San Diego Jail in approximately March of 15 2022 and that, despite Respondent’s assurances during the March 17, 2022 16 teleconference, Petitioner had not received a copy of the lodgments at ECF No. 28 or a 17 filed version of his own Traverse. The First Objection also requests the Court to take 18 judicial notice of a February 4, 2022 San Diego Union-Tribune article. On April 2, 2022, 19 Petitioner constructively filed another Objection (referred to above as “Second 20 Objection”), in which he argues the copy of the Habeas Denial filed at ECF No. 28-18 is 21 “a misrepresentation of what the [California] Supreme Court decision says.” (ECF No. 22 46.) 23 Petitioner also constructively filed an Request for Judicial Notice (referred to 24 above as “RJN”) on April 16, 2022, in which he requests that the Court judicially notice 25 his unsuccessful “attempts to contact a [sic] attorney through his family[.]” Finally, on 26 April 29, 2022, Petitioner constructively filed a document entitled “Petition for Order 27 Directing San Diego Sheriffs to Recognize the Petitioner as a Pro Se Litigant” asking for 28 “access to law library and legal work product” as he “is not receiving mail or legal mail” 1 and “relies on correspondence for copy service, case law, and redress in the courts.” 2 (ECF No. 50 at 1.)6 3 III. PETITIONER’S OTHER FEDERAL CASES 4 Despite Petitioner’s repeated claims about his lack of access to legal materials and 5 to a law library set forth in his pleadings and reiterated in his filings in this case, the 6 Court takes judicial notice of the other federal and state court actions Petitioner has 7 commenced and pursued since the Final Judgment in November of 2018.7 For instance, 8 Petitioner commenced two other habeas proceedings in this district in August of 2021. 9 See, e.g., Pedro Rodriguez v. Kathleen Allison, 21-cv-1395-JLS-AHG (S.D. Cal. Aug. 3, 10 2021), ECF No. 1 (federal habeas petition with over 1000 pages of attachments); Pedro 11 Rodriguez v. Kathleen Allison, 21-cv-1443-MMA-WVG (S.D. Cal. Aug. 9, 2021), ECF 12 No. 1 (federal habeas petition with over 100 pages of attachments). He also commenced 13 a federal civil rights lawsuit under

(“Section 1983”) in the Eastern 14 District of California in July of 2020. Pedro Rodriguez v. Gavin Newsom et al. 1:20-cv- 15 1044-DAD-HBK (E.D. Cal. July 29, 2020), ECF No. 1 (Section 1983 complaint with 30 16 pages of attachments including sentencing brief, sentencing materials, and copy of a July 17 17, 2020, state appellate court decision). Petitioner also appears to have appealed 18 decisions in two other Section 1983 suits originating in the Eastern District of California 19 in July and November of 2020, respectively. Pedro Rodriguez v. Scott Kernan, et al., 20- 20 cv-16424 (9th Cir. July 24, 2020), Dkt. 1; Pedro Rodriguez v. H. Longia, et al., 20-17262 21 (9th Cir. Nov. 18, 2020), Dkt. 1. Finally, a review of Petitioner’s federal filings further 22 reveals he filed separate state habeas petitions in the California Court of Appeal on April 23 6 Notably, in each of these filings Petitioner reiterates his lack of access to legal mail, his legal 24 files, and a law library. (See ECF Nos. 46, 49, 50.) 25 7 Courts may “take judicial notice of court filings and other matters of public record.” Reyn’s Pasta Bell LLC v. Visa USA, Inc.,

, 746 n.6 (9th Cir. 2006); United States v. Raygoza- 26 Garcia,

(9th Cir. 2018) (“A court may take judicial notice of undisputed matters of public record, which may include court records available through [the Public Access to Court Electronic 27 Records system].”); see also Langer v. U.S. Green Techs., Inc., No. 20-cv-01717-BEN-BGS,

, at *4 (S.D. Cal. Dec. 14, 2020) (judicially noticing PACER showed plaintiff commenced 28 1 7, 2021 and in the California Supreme Court on May 27, 2021. See Pedro Rodriguez v. 2 Kathleen Allison, 21-cv-1395-JLS-AHG (S.D. Cal.), ECF Nos. 27, 33. 3 ANALYSIS 4 I. Motion to Dismiss the Petition 5 A. Statute of Limitations 6 AEDPA provides a one-year statute of limitations to file a petition for writ of 7 habeas corpus in federal district court. See

(d)(1). Under the statute, the 8 one-year period begins to run from the date the judgment becomes final at the conclusion 9 of direct review “or the expiration of the time for seeking such review.”

§§ 10 2244(d)(1)(A). A direct appeal becomes final upon the later of: (1) the expiration of the 11 time for seeking review in the relevant state supreme court; or (2) if the Petitioner seeks 12 review in the United States Supreme Court, the time at which the conviction is affirmed 13 or the petition of certiorari is denied. See Gonzalez v. Thaler,

(2012); 14 Hemmerle v. Schriro,

, 1073–74 (9th Cir. 2007), cert. denied,

15 (2008). Regardless of whether a petitioner actually files a petition for certiorari in the 16 United States Supreme Court, the ninety-day period within which a petitioner can do so is 17 included within AEDPA’s period of direct review. See Bowen v. Roe,

, 18 1158–59 (9th Cir. 1999). 19 Here, Petitioner’s judgment became final on November 14, 2018. (See Final 20 Judgment.) Petitioner thereafter had until February 13, 2019—or 90 days after the Final 21 Judgment—to petition the United States Supreme Court for a writ of certiorari. See 28

(“Any other appeal or any writ of certiorari intended to bring any 23 judgment or decree in a civil action, suit or proceeding before the Supreme Court for 24 review shall be taken or applied for within ninety days after the entry of such judgment or 25 decree.”). He did not do so. Thus, the one-year statute of limitations period in this case 26 began to run on February 13, 2019, and to have timely commenced a federal habeas 27 action Petitioner was required to file the instant Petition by no later than February 13, 28 2020. Yet Petitioner constructively filed his Petition on July 28, 2021, rendering it 531 1 days overdue. Therefore, unless Petitioner can establish he is entitled to either statutory 2 and/or equitable tolling of an equivalent duration, the Petition must be dismissed. See 3 Zepeda v. Walker,

(9th Cir. 2009) (affirming district court’s 4 dismissal of untimely federal habeas petition). 5 B. Statutory Tolling 6 The heart of the parties’ dispute as it relates to statutory tolling is whether 7 Petitioner is entitled to tolling for the period between July 15, 2019, when Petitioner 8 constructively filed a habeas petition with the California Supreme Court, and July 14, 9 2021, when the California Supreme Court issued its Habeas Denial. If so, the Petition 10 undoubtedly is timely, for the AEDPA statute of limitations would have run for less than 11 its stated one-year period. 12 Under AEDPA, the statute of limitations period is tolled during the pendency of a 13 “properly filed” state post-conviction proceeding or other collateral review.

2244(d)(2) (“The time during which a properly filed application for State post-conviction 15 or other collateral review with respect to the pertinent judgment or claim is pending shall 16 not be counted toward any period of limitation under this subsection.” (emphasis added)); 17 see Pace v. DiGuglielmo,

(2005). “A petition for a writ of habeas 18 corpus is ‘properly filed’ when its delivery to, and acceptance by, ‘the appropriate court 19 officer for placement into the official court record’ are in ‘compliance with the applicable 20 laws and rules governing filings.’” Moreno v. Harrison, No. C-04-2933-MMC, 2006

, at *2 (N.D. Cal. Aug. 18, 2006) (quoting Artuz v. Bennett,

, 8 22 (2000)). State law “time limits, no matter their form, are filing conditions.” Pace, 544 23 U.S. at 417. “When a postconviction petition is untimely under state law, that is the end 24 of the matter for purposes of [28 U.S.C.] § 2244(d)(2).” Id. 25 Under California law, a state petition for habeas corpus must be filed “without 26 substantial delay.” In re Robbins,

. “Substantial delay” is “measured 27 from the time the petitioner or counsel knew, or reasonably should have known, of the 28 information offered in support of the claim and the legal basis for the claim.”

The 1 United States Supreme Court has held that the denial of a state habeas application for 2 untimeliness under In re Robbins is sufficient grounds to bar federal review. Walker v.

U.S. 307, 312–21 (2011). Moreover, “if a state court denies a petition as 4 untimely, none of the time . . . during the court’s consideration of that petition is 5 statutorily tolled.” Bonner v. Carey,

(9th Cir. 2005), amended, 439

(9th Cir. 2006). 7 At the outset, the parties appear to be in agreement that Petitioner is entitled to 8 statutory tolling for the time during which his state habeas petitions were pending review 9 before the California Superior Court and the California Court of Appeal, i.e., between 10 March 18, 2019 and May 10, 2019. That period covers 53 days.8 But this tolling, alone, 11 is insufficient to render the Petition timely. Indeed, it hardly makes a dent, for Petitioner 12 must still establish an additional 478 days are subject to tolling. Petitioner claims he is 13 able to make up this difference. Specifically, he argues that he is entitled to statutory 14 tolling for the nearly two-year period his habeas petition was pending before the 15 California Supreme Court. (Traverse at 5–6.) Respondent disagrees. (Mem.) In 16 Respondent’s view, Petitioner is not entitled to statutory tolling for that period because 17 his state habeas petition was not “properly filed.” (Id. at 8–9.) 18 Here, contrary to Petitioner’s assertion otherwise, it is clear the Habeas Denial is 19 predicated upon California’s timeliness bar in In re Robbins. (Habeas Denial (“The 20 petition for writ of habeas corpus is denied. (See In re Robbins (1998)

, 21 780 [courts will not entertain habeas corpus claims that are untimely]”).) Peralta v. 22 PBSP-Warden, No. EDCV 14-1592 AB (FFM),

, at *2 (C.D. Cal. Apr. 23 10, 2015) (holding the California Supreme Court’s citation to In re Robbins is sufficient 24 to indicate its decision to deny habeas was predicated upon the timeliness bar). 25 26 8 By Respondent’s calculations, Petitioner is entitled to just 35 days of statutory tolling. (Mem. 27 at 8.) However, Respondent incorrectly uses the dates on which the state habeas petitions were deemed filed, as opposed to their constructive filing dates, to calculate the tolling period. See Stillman,

1 Generally speaking, the California Supreme Court’s explicit application of 2 California’s timeliness bar precludes a federal court from finding the petitioner is entitled 3 to statutory tolling during the pertinent period. See White v. Martel,

, 884 4 (9th Cir. 2010) (per curiam) (“When a California state court determines that a state 5 prisoner’s state habeas petition is untimely under state law, there is no ‘properly filed’ 6 state petition, and [the state petitioner] is not entitled to statutory tolling under the 7 AEDPA.”). Federal courts typically should not undertake their own analysis to determine 8 whether, in fact, there was a “substantial delay,” or whether that delay was excusable, in 9 replacement of the California Supreme Court’s express determination on those issues in 10 the decision denying habeas. See Valdez v. Montgomery,

(9th Cir. 11 2019) (“If a California court has held that a state habeas petition was timely or untimely, 12 we are bound by that decision.” (citing Robinson v. Lewis,

(9th Cir. 13 2015))). 14 However, as Petitioner correctly argues, the United States Supreme Court has also 15 allowed for the possibility an otherwise adequate state procedural rule could be found 16 inadequate in its application to a particular case if the petitioner shows the state court’s 17 imposition of the procedural rule was “novel and unforeseeable” and without “fair or 18 substantial support in prior state law.” See Martin, 562 U.S. at 320; see also Lee v. 19 Kemna,

(2002) (“There are, however, exceptional cases in which 20 exorbitant application of a generally sound rule renders the state ground inadequate to 21 stop consideration of a federal question.”). Petitioner argues the California Supreme 22 Court applied the timeliness bar in a “novel [and] unforeseeable manner” in its Habeas 23 Denial. (Discovery Mot. at 1 (citing Walker v. Martin,

(2011); see also 24 Traverse at 10 (arguing Petitioner “has been timely, diligent and within statutory 25 limitations in regard to [sic] filings” and “[t]here was no way to predict or indication [sic] 26 27 28 1 that the CA Supreme Court would declare the Petitioner untimely,” which “did not occur 2 until July 2021”).)9 3 The Court is unpersuaded the California Supreme Court’s imposition of the In re 4 Robbins timeliness bar was either novel or unforeseeable. With the exception of 5 Petitioner’s ineffective assistance of appellate counsel claim, the claims raised in the state 6 habeas petition were claims for which the factual basis was, or should have been, known 7 well before Petitioner raised those claims in his 2019 state habeas petitions. For instance, 8 with respect to Petitioner’s “Ground One” claim of actual innocence, Petitioner himself 9 indicates the factual basis for the claim was discovered in March 2016. (See Pet. at 17.) 10 Meanwhile, Petitioner indicates “Ground Two” is premised on the “[s]ame operative 11 facts as ground 1.” (Id. at 23.) “Grounds Four, Five, Six and Nine” concern allegations 12 of ineffective assistance of trial counsel, judicial bias, conviction under a vague and 13 overbroad statute, and denial of right to self-representation, all of which appear based on 14 facts Petitioner knew or should have known at the time of trial. (See

at 26–31.) 15 “Grounds Seven, Eight and Ten,” which pertain to allegations of prosecutorial 16 misconduct, prosecutorial deception, and denial of orderly legal procedure also appear to 17 be based on the facts and prosecutorial acts discussed in Ground One, which again, 18 Petitioner acknowledges he knew in March 2016. (See

at 30–31.) Put simply, 19 Petitioner knew, or should have known, practically all the grounds upon which his state 20 habeas was premised approximately three years before pursuing any collateral attack 21 upon his judgment. Thus, it cannot be said the California Supreme Court’s invocation of 22

23 9 In Petitioner’s First Objection, he asserts: “The Petitioner is unable to rebut the state’s arguments on novel application of the timeliness rule.” (First Objection at 4 (citing Bounds v. Smith, 24

(1977)).) Bounds is a United States Supreme Court case holding access to courts 25 requires providing prisoners with access to legal research, libraries, and other legal assistance to allow for challenges against their convictions and sentences and conditions of confinement. See

at 825–28, abrogated on other grounds by Lewis v. Casey,

(1996). However, Respondent has not advanced any argument on the “novel application” matter. (See Mem.) Only Petitioner has 27 offered argument concerning “novel” application of the timeliness rule. (See e.g., Discovery Mot. at 1.) Thus, it is not apparent to this Court what argument he is unable to rebut due to any asserted lack of 28 1 the In re Robbins time bar as to the state habeas petition in its entirety was either novel or 2 unforeseeable. 3 Indeed, the contents of Petitioner’s own state habeas petition reveal that even he 4 foresaw that his habeas petition to California Supreme Court might encounter a 5 timeliness issue. For example, in his July 2019 submission, petitioner contended that his 6 “habeas should be considered timely,” referenced the difficulties he has experienced 7 accessing the law library and legal materials, and cited substantive case law concerning 8 prisoners’ due process rights to access legal research, libraries, and other legal assistance 9 to allow for challenges against their convictions, sentences, and conditions of 10 confinement. (ECF No. 28-16 at 24 (citing, inter alia, Bounds,

).) 11 Petitioner specifically argued that his “filing should be considered timely . . . [because] 12 the [P]etitioner has been frustrated fromlaw [sic] library access both at Valley State 13 Prison January 2019 forward and San Diego Sheriff’s 3/20/2019 Forwa [sic] to wit the 14 [P]etitioner filed a writ of habeas June 6, 2019 demanding access to his legal materials.” 15 (Id.) In view of Petitioner’s clear contemplation his state habeas petition could 16 potentially run afoul of California’s timeliness requirements, the Court is not persuaded 17 the California Supreme Court’s imposition of In re Robbins was at all “unforeseeable” in 18 this case. Nor does the Court find its imposition “novel” given the bulk of Petitioner’s 19 claims (again, save the claim of ineffective assistance of appellate counsel) arose from 20 facts known at or around the time of trial. 21 Because Petitioner fails to establish the California Supreme Court imposed the 22 timeliness bar in a novel or unforeseeable manner, this Court is bound to the California 23 Supreme Court’s explicit decision in the Habeas Denial that Petitioner’s state habeas 24 petition was untimely. See also Valdez,

(citing Robinson v. Lewis, 795

(9th Cir. 2015)). Thus, the Court concludes that Petitioner’s state habeas 26 petition with the California Supreme Court was not “properly filed” within the meaning 27 of AEDPA and, therefore, he is not entitled to statutory tolling for the nearly two-year 28 period that application was pending. 1 C. Equitable Tolling 2 A litigant will be entitled to equitable tolling only if he can show “(1) that he has 3 been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in 4 his way and prevented timely filing.” Holland v. Florida,

, 649 (2010) 5 (citing Pace,

). This is a high bar, and equitable tolling will be 6 “unavailable in most cases.” Miranda v. Castro,

(9th Cir. 2002) 7 (“[T]he threshold necessary to trigger equitable tolling is very high, lest the exceptions 8 swallow the rule.”). “[A] pro se petitioner’s lack of legal sophistication is not, by itself, 9 an extraordinary circumstance warranting equitable tolling.” Raspberry v. Garcia, 448

(9th Cir. 2006). “Ordinary” restrictions on a petitioner’s access to legal 11 materials and resources fall short of “outright den[ials],” and, thus, do not amount to 12 “extraordinary circumstances” capable of invoking equitable tolling. Ramirez v. Yates, 13

(9th Cir. 2009) (“Ordinary prison limitations on [a petitioner’s] access 14 to the law library and copier (quite unlike the denial altogether of access to his personal 15 legal papers) were neither ‘extraordinary’ nor made it ‘impossible’ for him to file his 16 petition in a timely manner. Given even the most common day-to-day security 17 restrictions in prison, concluding otherwise would permit the exception to swallow the 18 rule”). Furthermore, even where extraordinary circumstances are present, a causal 19 connection must be shown between the extraordinary circumstances alleged and the 20 delay. Spitsyn v. Moore,

(9th Cir. 2003). 21 Petitioner avers he is entitled to equitable tolling for virtually the entire period 22 between the Final Judgment and his filing of the instant Petition.10 Specifically, he 23 claims that he has had “difficulty” accessing his legal materials and a law library, which 24 he attributes to a variety of reasons. First, he alleges that he was denied access to the law 25 library in the facility at which he was held from late 2018 until early 2019. In support of 26 that assertion, Petitioner provides a copy of a prison complaint he filed when he 27 10 The Court notes that Petitioner need not establish he was entitled to equitable tolling prior to 28 1 attempted to use, but was denied access to, the library on December 21, 2018. (Id. at 2 242.) Petitioner’s institutional appeal was denied, noting Petitioner had attempted to 3 access the library outside of the scheduled time provided to him and Petitioner had been 4 provided with the minimum required library time of four hours per week. Petitioner also 5 filed an additional complaint after being denied access to the law library during the week 6 of January 18, 2019. (Id.) 7 These allegations are a far cry from showing Petitioner was completely deprived of 8 access to legal materials and a law library, which is needed to establish circumstances 9 sufficiently extraordinary to invoke equitable tolling. What Petitioner complains of are 10 ordinary (and reasonable) limitations placed upon his library access during this time 11 period, i.e., that he was denied access to the library on specific days, outside of scheduled 12 hours, and beyond the total number of total weekly hours typically allotted to prisoners. 13 But that sort of deprivation is insufficient as a matter of law to invoke equitable tolling. 14 See Ramirez,

(“Ordinary prison limitations on [a petitioner’s] access to 15 the law library . . . [are] neither ‘extraordinary’ nor made it ‘impossible’ for him to file 16 his petition in a timely manner.”); see also Afrah v. Sidhu, No. 14-CV-02303-BAS(NLS), 17

, at *3 (S.D. Cal. Dec. 14, 2015) (“A complete lack of access to a legal 18 file may constitute an ’extraordinary circumstance’”) (emphasis added). 19 The record of Petitioner’s state habeas proceedings only further undermine his 20 claim the restrictions upon library access to which he was subjected during late 2018 and 21 early 2019 were extraordinary. Indeed, immediately following the timeframe about 22 which Petitioner complains, he filed a voluminous and well-researched habeas petition in 23 the California Superior Court in March of 2019 and two petitions in the California Court 24 of Appeal in April and June of 2019. See Ramirez,

(permitting district 25 courts, when faced with claims that a petitioner was deprived of access to legal materials 26 and a library, to infer from a petitioner’s legal filings in federal and state court during the 27 relevant period that the alleged deprivation neither was “extraordinary” nor the actual 28 cause of the delay); Afrah,

, at *3 (opining that a petitioner’s filing of a 1 well-reasoned and timely habeas petition in state court militated against finding 2 limitations on a petitioner’s library access during that time amounts to “extraordinary 3 circumstances” or caused the federal habeas petition to be untimely). Petitioner offers no 4 explanation why his claimed lack of access to legal materials and a law library caused 5 only a delay in the instant federal habeas Petitioner, but not his state court equivalents. 6 See Spitsyn,

(holding a petitioner must show the extraordinary 7 circumstances actually caused the delay for which equitable tolling his sought to cover). 8 Second, Petitioner alleges that he was deprived of necessary legal materials during 9 his time at the California Health Care Facility in Stockton (“CHCF”), where he was 10 involuntarily admitted in approximately late February of 2019, and his time at the San 11 Diego Jail, where he was held between March and June of 2019.11 Petitioner supports 12 this contention by annexing to his Petition newspaper clippings and mail, reflecting he 13 was in CHCF in late February of 2019—February 22, 2019 at the latest. (Pet. at 247–48.) 14 Other documents indicate Petitioner was at some point thereafter transferred to the San 15 Diego Jail in either late February or March of 2019. (Id. at 252 (a report filed by the San 16 Diego Sheriff’s Department resulting from a grievance Petitioner submitted on March 27, 17 2019, which was identical to another grievance Petitioner filed the prior day and which 18 indicate Petitioner “came from prison on 3/21/19”).) These documents reflect that 19 Petitioner complained in a grievance report to San Diego Jail administrators about “not 20 [being] allowed access to his legal mail.” (Id.) The grievance report appears to confirm 21 the lack of access to legal mail, noting that Petitioner “ha[d] 11 boxes of legal paper, 22 which are currently being stored in the law library,” and that “11 boxes of mail in an 23 inmate’s cell would in fact constitute a fire hazard, which is why [Petitioner] has not been 24 given his mail in his cell. [Petitioner] is pro per, and therefore is not scheduled for law 25 library were [sic] his legal mail has been stored.” (Id.) 26 11 This identical contention appears in Petitioner’s state habeas petition filed with the California 27 Supreme Court in July of 2019. (See ECF No. 28-16.) That Court clearly did not find it constituted sufficiently “good cause” to withhold application of the In re Robbins timeliness bar. (See Habeas 28 1 In essence, it appears that Petitioner was transferred to CHCF either around the 2 time his judgment became final on February 13, 2019, or shortly thereafter, and then 3 transferred several weeks later to the San Diego Jail, where he remained until June of 4 2019 at the latest. (See ECF Nos. 27-11 at 4 (at Valley State Prison when California 5 Superior Court issued denial of State Petition on April 18, 2019); 28-12 at 7 (at San 6 Diego Jail on April 29, 2019 when State Petition constructively filed with California 7 Court of Appeal); 28-14 (at San Diego Jail on June 1, 2019 when Second State Petition 8 constructively filed with California Court of Appeal); 28-16 (at Valley State Prison on 9 June 5, 2019 when State Petition constructively filed with California Supreme Court).) 10 Again, Petitioner’s claim that, during his time at CHCF and the San Diego Jail, he 11 was denied adequate access to his legal materials and a law library is belied by the 12 record. Petitioner filed a substantive state habeas petition in California Superior Court in 13 March of 2019, just after his admission to CHCF. He filed yet another state habeas 14 petition with the California Court of Appeal in April of 2019, while he was held in San 15 Diego Jail. See Ramirez,

. In any event, as explained supra Analysis Sec. 16 I.B, Petitioner already is entitled to statutory tolling for the 53-day period from March 18, 17 2019 through May 10, 2019, which significantly overlaps with the period during which 18 he was held at the San Diego Jail. Thus, even assuming arguendo Petitioner has made 19 the requisite showing he is entitled to equitable tolling during the period he was held in 20 CHCF and San Diego Jail (he has not), which this Court charitably calculates to be 21 between mid-February until the beginning of June, it would not render the Petition 22 timely. Petitioner still would need to identify over 400 additional days during which he 23 was subjected to extraordinary circumstances that caused his Petition to be delayed. 24 Third, Petitioner asserts that he was—and continues to be—denied adequate 25 access to his legal materials and a law library beginning in March of 2020 because of 26 COVID-19 lockdowns and quarantines. (Pet. at 32; Traverse at 8–10 (“Covid-19 made it 27 impossible to file the petition on time and should qualify as an extraordinary 28 circumstance the Petitioner is still suffering.”).) The Petition, the Traverse, and the 1 Amended Traverse are devoid of any factual content that would enable this Court to 2 determine whether the restrictions placed on Petitioner’s access to legal materials and 3 research during the COVID-19 pandemic amount to extraordinary circumstances. 4 However, Petitioner’s filings in this action and in other federal actions he has litigated 5 during the complained-of period lead this Court to draw the inference that, whatever 6 those restrictions might have been, they were neither extraordinary nor the cause of the 7 Petition’s delinquency. Indeed, despite Petitioner’s allegations of limited access to legal 8 resources in July of 2021, Petitioner was able to file the instant, well-researched and 9 voluminous Petition—including 250 pages of attachments consisting of records from his 10 state court proceedings—just two weeks after the Habeas Denial on July 14, 2021. 11 Petitioner also commenced and pursued two other federal habeas petitions, a Section 12 1983 action, and two appeals to the Ninth Circuit during the COVID-19 pandemic. See 13 supra Background Sec. III. Because Petitioner does not explain why COVID-19 14 restrictions purportedly placed upon his access to legal materials affected his ability to 15 timely file his federal Petition only, the Court finds he is not entitled to equitable tolling 16 for the period between March of 2020 and July of 2021. See Ramirez,

. 17 Accordingly, the Court is not persuaded equitable tolling is available in sufficient 18 measure such that it could render the federal Petition timely. Thus, the Court GRANTS 19 Respondent’s motion to dismiss for untimeliness and DISMISSES the Petition. (ECF 20 No. 27.) 21 II. DISCOVERY MOTION 22 Petitioner requests discovery and expansion of the record pursuant to Rules 6 and 7 23 of the Rules Governing Section 2254 Cases in the United States District Courts, effective 24 February 1, 1997, and amended on February 1, 2010 (“Habeas Corpus Rules”). 25 (Discovery Mot.) Specifically, he requests 26 • “any and all grievances, complaints or documents, ‘602s’ and informal requests to Valley State Prison submitted by the Petitioner 27 May 2018 forward”; 28 1 • “all sentencing memorandum in case 333477 and 340334”; 2 • his “medical history c-file including requests and grievances May 2018 forward”; 3

4 • “all modified [unintelligible] daily program status report plan of operation staff & inmate notification from January 2019 to 5 [September 30, 2021]”; 6 7 • his “housing history May 2018 forward”;

8 • “any and all documents created by CDCR staff or official in response 9 to 602’s and grievances submitted by Petitioner”; and

10 • “all chronos generated by Petitioners mental health provider.” 11

12 (Id. at 4.) He also requests interrogatories and production of documents from Valley 13 State Prison, including materials concerning the duties of the librarian and any operating 14 upgrades to the “Lexis-Nexus computers,” as well as whether there is any case law 15 concerning “state habeas corpus filed within the ‘statute of limitations’ but considered 16 untimely by only the CA Supreme Court.” (Id.) Petitioner avers that these materials are 17 relevant to issues concerning his entitlement to tolling. (Id. at 1–4, 6–7.) 18 “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled 19 to discovery as a matter of ordinary course.” Bracy v. Gramley,

, 904 20 (1997). Habeas Corpus Rule 6(a) provides district courts with discretion to authorize 21 discovery in

proceedings upon a finding of “good cause.” See Rule 22 6(a), 28 U.S.C.A. foll. § 2254. Even so, the Ninth Circuit has cautioned that district 23 courts “should not allow prisoners to use federal discovery for fishing expeditions to 24 investigate mere speculation.” Calderon v. U.S. District Court for the N. Dist. of Cal., 98

(9th Cir. 1996); Earp v. Davis,

(9th Cir. 2018) 26 (“Just as bald assertions and conclusory allegations do not afford a sufficient ground for 27 an evidentiary hearing, neither do they provide a basis for imposing upon the state the 28 1 burden of responding in discovery to every habeas petitioner who wishes to seek such 2 discovery.” (quoting Mayberry v. Petsock,

(3d Cir. 1987))). 3 Even where a petitioner satisfies the “good cause” standard and shows discovery is 4 warranted, the material and information sought must be in accordance with the Rules of 5 Federal Civil Procedure that govern the scope of discovery. That is, the discovery sought 6 must be “relevant to any party's claim or defense and proportional to the needs of the 7 case, considering the importance of the issues at stake in the action, the amount in 8 controversy, the parties’ relative access to relevant information, the parties’ resources, the 9 importance of the discovery in resolving the issues, and whether the burden or expense of 10 the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1); see Refco 11 Grp. Ltd., LLC. v. Cantor Fitzgerald, L.P., 13 Civ. 1654 (RA) (HBP),

5420225, at *4 (S.D.N.Y. Oct. 24, 2014) (“The burden of demonstrating relevance is on 13 the party seeking discovery.”). 14 As an initial matter, the Court notes that at least some of Petitioner’s discovery 15 requests bear relevance to his claim of equitable tolling. Gilani v. Hewlett Packard Co., 16 15 Civ. 5609 (NSR),

, at *1 (S.D.N.Y. Sept. 22, 2017) (“‘Relevance’ 17 has been broadly interpreted to include ‘any matter that bears on, or that reasonably could 18 lead to other matter that could bear on any issue that is or may be in the case.”). That is, 19 Petitioner’s request for discovery of documents pertaining to his medical and housing 20 issues clearly relates to his claim that he endured “extraordinary circumstances” while 21 imprisoned, to which his delay in filing his Petition purportedly is attributable. 22 But it is not the case that discovery should issue in a

proceeding 23 simply because a petitioner seeks discovery that fits within the ambit of Rule 26(b). As 24 explained above, a petitioner must establish “good cause” to warrant the endeavor into 25 discovery in the first instance. From the voluminous record reflecting Petitioner’s 26 litigiousness in state and federal court during the period for which he seeks equitable 27 tolling, the Court infers easily that Petitioner’s housing and medical circumstances— 28 whatever they may have been—did not not prevent him from timely filing the instant 1 Petition, just as they did not inhibit his filing (and continuing to file) numerous pleadings, 2 motions, and other submissions in state court, this proceeding, and other federal actions 3 he commenced between March of 2020 and July of 2021. See supra Background Sec. III 4 and Analysis Sec. I.C. 5 Accordingly, the Court finds Petitioner fails to establish requisite good cause to 6 warrant discovery and, thus, DENIES Petitioner’s Discovery Motion. 7 III. MOTION FOR APPOINTMENT OF COUNSEL 8 District courts are provided with statutory authority to appoint counsel in a federal 9 habeas case when a petitioner is financially eligible and “the court determines that the 10 interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(b); see also Chaney v. Lewis, 11

(9th Cir. 1086) (“Indigent state prisoners applying for habeas corpus 12 relief are not entitled to appointed counsel unless the circumstances of a particular case 13 indicate that appointed counsel is necessary to prevent due process violations.”) (citations 14 omitted). 15 On January 12, 2022, Petitioner constructively filed a motion requesting 16 appointment of counsel in the instant habeas matter. (See ECF No. 29.) On February 7, 17 2022, Magistrate Judge Berg issued an order denying the request for counsel without 18 prejudice, concluding Petitioner failed to establish the “exceptional circumstances” 19 required for appointment of counsel in a civil case. (Order Denying Appointment of 20 Counsel at 2 (quoting Agyeman v. Corr. Cor. Am.,

, 1103 (9th Cir. 2004)), 21 ECF No. 32.) Magistrate Judge Berg reasoned that “[d]espite his claimed lack of legal 22 training, access to legal work and resources, and less than ideal circumstances resulting 23 from being incarcerated during a pandemic, Petitioner has sufficiently represented 24 himself to date and has drafted and submitted numerous documents without the assistance 25 of legal counsel,” and that “Petitioner’s filings indicate that he has a sufficient grasp of 26 his case and the legal issues involved, and that he can articulate the grounds for his 27 Petition.” (Id. at 2-3 (citing LaMere v. Risley,

(9th Cir. 1987) and Taa 28 v. Chase Home Fin., No.5-11-cv-00554 EJD,

, at *2 (N.D. Cal. Feb. 15, 1 2012)).) Magistrate Judge Berg also observed that, despite his contention he had been 2 separated from his legal materials, Petitioner’s submissions have not only been supported 3 by substantial case law but also exhibits from his state court proceedings. (Id. at 3-4.) 4 Magistrate Judge Berg thus concluded “the interests of justice do not currently warrant 5 the appointment of counsel in this case.” (Id. at 4.) 6 Now before the Court is Petitioner’s second application for appointment of 7 counsel, which is predicated upon substantially the same ground as his first. 8 (Appointment Mot. at 2-3 (averring appointment is necessary because he has been 9 “obstructed from seeking legal representation as the lawyer directory is in the law 10 library” which he cannot access, “is not receiving mail,” and “is without” both legal work 11 product and case law).) The Court remains unpersuaded that Petitioner’s situation 12 warrants a different outcome than Magistrate Judge Berg’s Order Denying Appointment 13 of Counsel. It is, again, plain from a review of the multitude of Petitioner’s pleadings 14 and filings in this case, including the detailed Petition and attached exhibits, the Traverse, 15 the Motion for Leave to Amend the Traverse, and the Discovery Motion, that Petitioner is 16 able to clearly communicate his claims and arguments, and to support those arguments 17 with exhibits, documentation, and case law.12 Counsel, thus, does not appear necessary 18 to assist Petitioner in this respect. See LaMere,

(holding district court did 19 not abuse discretion is declining to appoint counsel where “district court pleadings 20 illustrate to us that [the petitioner] had a good understanding of the issues and the ability 21 to present forcefully and coherently his contentions”).) 22 Accordingly, the Court concludes the interests of justice currently do not warrant 23 the appointment of counsel. Thus, the Court DENIES the Motion for Appointment. 24 // 25 // 26 // 27 12 In so concluding, the Court finds significant that Petitioner submitted many of the above- 28 1 IV. MISCELLANEOUS REQUESTS AND OBJECTIONS 2 A. Requests for Judicial Notice 3 “The court may judicially notice a fact that is not subject to reasonable dispute 4 because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) 5 can be accurately and readily determined from sources whose accuracy cannot reasonably 6 be questioned.” Fed. R. Evid. 201(b). “Courts may take judicial notice of publications 7 introduced to ‘indicate what was in the public realm at the time, not whether the contents 8 of those articles were in fact true.’” Von Saher v. Norton Simon Museum of Art 9 Pasadena,

(9th Cir. 2010) (quoting Premier Growth Fund v. Alliance 10 Capital Mgmt.,

, 401 n. 15 (3rd Cir. 2006)). 11 Petitioner asks the Court to take judicial notice of various facts across several 12 filings. First, Petitioner asks the Court to judicially notice a San Diego Union-Tribune 13 newspaper article concerning an “audit” of the housing and medical conditions at the San 14 Diego Jail. (First Objection at 2–5.) He essentially avers that some of substandard 15 conditions identified in that audit have “frustrated and impeded” his ability to present his 16 own claims. (Id.) Notably, Petitioner not only seeks judicial notice of the fact the audit 17 received news coverage from the San Diego Union-Tribune; he also seeks judicial notice 18 of the contents of the article and the audit’s findings. The Court declines to go so far, for 19 the Court is restrained to judicially notice only the fact of news coverage, not its truth. 20 See Von Saher,

; see also Fed. R. Evid. 201(b). Accordingly, the Court 21 GRANTS IN PART and DENIES IN PART Petitioner’s request in his First Objection 22 for judicial notice of the San Diego Union-Tribune article, and the Court judicially 23 notices the news coverage “solely as an indication of what information was in the public 24 realm at the time.” Von Saher,

. 25 Petitioner next requests judicial notice of the fact he has purportedly attempted to 26 “contact a [sic] attorney through his family” and that that endeavor has been obstructed 27 due to his inability to communicate via email and his classification in the correctional 28 system. (RJN.) Such information is not properly subject to judicial notice. Indeed, these 1 facts are neither “generally known” nor “can [they] be accurately and readily determined 2 from sources whose accuracy cannot reasonably be questioned.” See Fed. R. Evid. 3 201(b). Accordingly, the Court DENIES Petitioner’s request for judicial notice of his 4 asserted attempts to contact counsel. 5 B. Objections 6 Petitioner has filed two Objections since submitting his Traverse. In the first one, 7 Petitioner objects that he has not received the Habeas Denial or the remainder of the state 8 court record lodged at ECF No. 28 or a copy of his own Traverse at ECF No. 38. (First 9 Objection.) By way of background, the Briefing Order indicates that at the March 17, 10 2022 teleconference, the Respondent agreed to send Petitioner a copy of the lodgments at 11 ECF No. 28 (including a copy of the Habeas Denial) and a copy of Petitioner’s own 12 Traverse. (Briefing Order.) While Petitioner indicated in his First Objection he had not 13 yet received those copies, the discussion concerning the veracity of the Habeas Denial in 14 his Second Objection indicates that Petitioner has since received the requested 15 lodgements. Therefore, the Court OVERRULES Petitioner’s First Objection and 16 DENIES Petitioner’s request for the additional lodgments. 17 In Petitioner’s Second Objection, he claims that the Habeas Denial filed at ECF 18 No. 28-18 is “not the actual California Supreme Court decision” on Petitioner’s state 19 habeas petition filed in July of 2019. (Second Objection at 1.) The Court finds no 20 infirmity or misrepresentation in the Habeas Denial filed at ECF No. 28-18, which is the 21 docket sheet/appellate court case information reflecting the California Supreme Court 22 denied case number S256832 on July 14, 2021, in a decision which stated in full: 23 The petition for writ of habeas corpus is denied. (See In re Robbins (1998)

[courts will not entertain habeas corpus claims 24 that are untimely]; In re Clark (1993)

[courts will not 25 entertain habeas corpus claims that are successive].) Individual claims are denied, as applicable. (See In re Dixon (1953)

[courts 26 will not entertain habeas corpus claims that could have been, but were not, 27 raised on appeal]; In re Miller (1941)

[courts will not entertain habeas corpus claims that are repetitive].) 28 1 (ECF No. 28-18.) 2 Given Petitioner attached to the federal Petition what appears to be a copy of the 3 decision issued by the California Supreme Court in case number S256832 (see Pet. at 4 305), and Petitioner also attached a copy of the docket sheet/appellate courts case 5 information from the California Supreme Court to the federal Petition (see id. at 310), the 6 Court has reviewed and compared these submissions alongside ECF No. 28-18. They are 7 substantially identical. The only difference appears to be the lack of italicization of case 8 citations in the docket entry, which are italicized only on the copy of the California 9 Supreme Court’s decision itself. (Compare Pet. at 305 with Pet. at 310 and ECF No. 28- 10 18).) Because the three documents appear substantively identical, the Court 11 OVERRULES Petitioner’s Second Objection. 12 C. Request that San Diego Sheriff’s Department Recognize Petitioner as Pro Se 13

14 On November 16, 2021, Petitioner filed an “Ex Parte Request for Order Directing 15 San Diego Sheriffs to Recognize Petitioner as Pro [Se] Litigant.” (ECF No. 24.) On 16 December 20, 2021, Magistrate Judge Berg issued an Order denying that request, 17 reasoning in relevant part Petitioner had only presented “generalized claims,” which “do 18 not directly relate to his ability to file a specific document” and Petitioner must show 19 “what he specifically is lacking to be able to complete his pleadings.” (Id. at 3 (citing 20 Lewis v. Casey,

(1996).) In that Order, Magistrate Judge Berg encouraged 21 Petitioner “to seek redress through the Sheriff’s Department’s internal processes and 22 stated: “If Petitioner lacks access to legal resources necessary to meet future deadlines, 23 he should bring such issues (together with any specifics as related to his habeas petition 24 in this case) to the Court’s attention before he misses any deadlines.” (Id. at 4–5.) 25 On April 29, 2022, Petitioner constructively filed a similar request, entitled 26 “Petition for Order Directing San Diego Sheriffs to Recognize the Petitioner as a Pro Se 27 Litigant,” which seeks an Order from this Court “grant[ing] the Petitioner access to law 28 1 library and legal work product.” (ECF No. 50 at 1.) In the instant request, Petitioner 2 asserts: 3 Since arriving at San Diego Central Jail the Petitioner has had no access to law library, legal work product is confiscated, little access to 4 caselaw (when paging system works Petitioner can see five cases per 5 month.) And no access to unlimited correspondence with the courts, Attached “A” The Petitioner has been housed for a time at George Bailey 6 Detention Facility in a 39 man close quarter space where the Petitioner was 7 continuously infected with Covid-19 and untreated Attached “B” [¶] The Petitioner was transferred to Vista Detention Facility and was housed for a 8 time in darkness unable to read, Attached “C” [¶] Now transferred to San 9 Diego Central Jail Petitioner is not receiving mail, Attached “A”

10

11 (Id. at 1–2.) He also complains of “not receiving mail or legal mail,” and that he “relies 12 on correspondence for copy service, case law, and redress in the Courts.” (Id. at 1.) 13 As with his November 16, 2021 request, Petitioner’s claims are generalized and do 14 not appear to relate to an asserted inability to file any specific document in this case. To 15 date, the Court is not aware of any missed deadlines by Petitioner in this case, and 16 Petitioner was granted the one extension of time he recently requested. (See ECF Nos. 17 36, 37.) Nor does Petitioner demonstrate an inability to file pleadings or other documents 18 with the Court. Indeed, Petitioner has not only filed an Opposition/Traverse to 19 Respondent’s motion to dismiss, but also recently has filed numerous objections, 20 motions, and requests for judicial notice. (See ECF Nos. 38, 43, 45–46, 48–53.) Thus, 21 no “actual injury” is apparent, despite Petitioner’s claimed inadequate access to legal 22 materials. See Lewis,

(“Because Bounds did not create an abstract, 23 freestanding right to a law library or legal assistance, an inmate cannot establish relevant 24 actual injury simply by establishing that his prison’s law library or legal assistance 25 program is subpar in some theoretical sense . . . . the inmate therefore must go one step 26 further and demonstrate that the alleged shortcomings in the library or legal assistance 27 program hindered his efforts to pursue a legal claim.” (citing Bounds,

)). 28 1 Accordingly, Petitioner’s request is DENIED. Petitioner is again encouraged to 2 seek redress through the processes of the institution in which he is currently confined. 3 V. CERTIFICATE OF APPEALABILITY 4 When a district court issues a final order adverse to the habeas petitioner, it must 5 also issue or deny a certificate of appealability. Rule 11(a), 28 U.S.C.A. foll. § 2254. 6 This requirement includes a district court’s decision based on procedural grounds, e.g., 7 timeliness. See Buck v. Davis, --- U.S. ---,

(2017) (“[A] litigant 8 seeking a COA must demonstrate that a procedural ruling barring relief is itself debatable 9 among jurists of reason; otherwise, the appeal would not ‘deserve encouragement to 10 proceed further.’” (quoting Slack v. McDaniel,

(2000)). The Court 11 finds issuing a certificate of appealability is appropriate in this instance as reasonable 12 jurists could potentially find debatable the Court’s conclusion Petitioner is not entitled to 13 statutory or equitable tolling sufficient to render the federal Petition timely as well as the 14 Court’s conclusion Petitioner is not entitled to discovery/expansion of the record. See 28 15 U.S.C. 2253(c); Slack,

. Accordingly, the Court GRANTS a certificate of 16 appealability as to the availability of statutory tolling, equitable tolling, and 17 discovery/expansion of the record. 18 CONCLUSION 19 For the reasons stated above, the Court: 20 (1) GRANTS Respondent’s Motion to Dismiss based on timeliness. (ECF No. 27.)

21 (2) DENIES Petitioner’s Discovery Motion. (ECF No. 43.) 22 (3) DENIES Petitioner’s Motion for Appointment of Counsel. (ECF No. 48.) 23

24 (4) DENIES IN PART and GRANTS IN PART Petitioner’s requests for judicial notice. (ECF Nos. 45, 50.) 25

26 (5) OVERRULES Petitioner’s Objections. (ECF Nos. 45–46.)

27

28 I Accordingly, the Court DISMISSES the Petition and GRANTS a certificate of 2 ||appealability as to the availability of statutory tolling, equitable tolling, and discovery 3 |}and/or expansion of the record. The Clerk of Court is DIRECTED to terminate all 4 ||pending motions and to enter judgment accordingly. The Clerk of Court is further 5 ||} DIRECTED to close this case. 6 IT IS SO ORDERED. / , 7 || DATED: June 22, 2022 Lin A (Lyohaa 6 g United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 47