The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Rigoberto Arredondo-Meza's ("Arredondo") Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Docket No. 1 in CV-10-192-E-BLW and Docket No. 29 in CR-08-160-E-BLW ). Having reviewed the Motion and Arredondo's Response to Order to Show Cause (Docket No. 4),*fn1 the Court enters the following Order summarily dismissing the § 2255 Motion without requiring a response from the Government.
Arredondo was charged with three counts of possession with intent to deliver methamphetamine in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(B) and one count of illegal entry in violation of 8 U.S.C. § 1325(a)(1) and (b)(1). Indictment (Docket No. 14). He subsequently pled guilty before this Court to one of the possession counts in exchange for the dismissal of the remaining counts of the Indictment. Plea Agreement (Docket No. 18); Minutes (Docket No. 20). Following an evidentiary hearing on January 30, 2009, the Court determined that Arredondo was not entitled to safety valve relief from the five-year statutory minimum and sentenced him to a term of imprisonment of sixty months. See Judgment (Docket No. 27).
Arredondo did not appeal his sentence or conviction. He filed the pending § 2255 Motion on April 12, 2010, alleging involuntary plea, breach of Plea Agreement, failure of the Indictment and the Plea Agreement to specify a drug quantity, and ineffective assistance of counsel for failure to properly advise him during the plea stage of the proceeding and for failure to file a notice of appeal.
As the Court explained in its Order to Show Cause (Docket No. 3 in civil case), Arredondo's conviction became final on February 9, 2009, and the deadline for filing a § 2255 motion became February 9, 2010.*fn2 See 28 U.S.C. § 2255(f)(1). Because Arredondo did not file his § 2255 Motion until April 12, 2010, more than two months after the deadline had passed, the Court directed Arredondo to show cause why his § 2255 Motion should not be dismissed as untimely.
If a § 2255 motion is not timely filed under any of the subsections of § 2255(f), a prisoner may nevertheless be entitled to equitable tolling.
Equitable tolling is warranted in very limited circumstances. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). See also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (noting "[w]e have made clear . . . that equitable tolling is 'unavailable in most cases'" and that "the required threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule") (citations omitted)). It is appropriate only "[w]hen external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).
To be entitled to equitable tolling, a prisoner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" preventing timely filing. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The Ninth Circuit has determined that Pace's "formulation is consistent with our sparing application of the doctrine of equitable tolling." See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). The requirement of extraordinary circumstances "necessarily suggests the doctrine's rarity, and the requirement that extraordinary circumstances 'stood in his way' suggests that an external force must cause the untimeliness, rather than, as we have said, merely 'oversight, miscalculation or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling.'" Id. (citation omitted) (alteration in original) .
Arredondo has not alleged any grounds supportive of the statutory tolling grounds set forth in § 2255(f)(2)-(4). He primarily relies upon the ineffective assistance of counsel claims he asserts as part of his § 2255 Motion, as an excuse for his late filing. To address those issues would necessarily defeat the purpose of the statute of limitations. Arredondo may also be contending that counsel failed to advise him how to proceed. However, a prisoner is not entitled to counsel to pursue a § 2255 motion. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). The right to counsel "extends to the first appeal of right, and no further." Id.
The only "external" circumstance Arredondo alleges to excuse his late filing is that he was not aware of the statute of limitations. However, "equitable tolling is typically denied in cases where a litigant's own mistake clearly contributed to his predicament." Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008) (citing Lawrence v. Florida, 549 U.S. 327, 336 (2007)). Standing alone, lack of awareness of the statute of limitations does not constitute extraordinary circumstances. Cf. Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (remanding for evidentiary hearing where prisoner alleged that prison's inadequate law library prevented him from knowing the statute of limitations).
Several courts have held that a pro se prisoner's ignorance of the law and lack of legal experience do not constitute grounds for equitable tolling. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (prisoner's inability to calculate the limitations period is not an extraordinary circumstance). See also Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004) (prisoner's misunderstanding of procedures); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (ignorance of law); Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000); Turner v. Johnson, 177 F.3d 390, 391 ...