Inga v. Dahlstrom

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
COSTIA INGA,
Petitioner,
vs.
NANCY DAHLSTROM,
Respondent.
No. 3:19-cv-00226-JKS
ORDER OF DISMISSAL
On August 15, 2019, Costia Inga, a state prisoner proceeding pro se, filed a Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2254 (“Petition”). Docket No. 1. Inga challenges his
2002 judgment of conviction following a jury trial entered by the Superior Court for the State of
Alaska, Case Number 3AN-00-10074CR, because it allegedly violates various protections of the
U.S. Constitution. Id.
After reviewing the Petition and the state court dockets, this Court issued an Order to
Show Cause (“OSC”) on September 23, 2019, directing Inga to file a Response addressing the
facial untimeliness of the Petition and whether there are grounds for equitable tolling. Docket
No. 2. The OSC explained why the Petition was facially untimely and why the statutory tolling
available did not render it timely. Id. at 3-4. The OSC laid out the equitable tolling doctrine and
expressly directed Inga to explain how the Petition is timely (if he so contends) and to provide
any available competent evidence to establish such timeliness. Id. at 4-7. Inga responded to the
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OSC on September 19, 2019. Docket No. 3. In his Response, Inga contends that equitable
tolling is warranted here because he “was trying to find a lawyer to help [him] with the filings.”
Id. at 2.
The Court has considered the Petition, the record, and Inga’s Response and must
conclude that dismissal of this action with prejudice is warranted due to untimeliness. The Court
takes judicial notice1 that the state court record shows that Inga was convicted on September 27,
2002. See https://records.courts.alaska.gov/ (State v. Inga, 3AN-00-10074CR). The Court of
Appeals affirmed his conviction on March 31, 2004, Inga v. State, Case No. A-8456, 2004 WL
719626 (Alaska Ct. App. Mar. 31, 2004), and the Alaska Supreme Court denied his petition for
review on June 30, 2004, see http://www.appellate.courts.state.ak.us/ (Inga v. State, S-11455).
Inga’s conviction became final 90 days later on direct review when his time to file a petition for
certiorari in the U.S. Supreme Court expired on September 28, 2004. See Jiminez v.
Quarterman, 555 U.S. 113, 119 (2009); Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir. 2003).
The one-year period under the AEDPA in which to file a federal petition for habeas relief thus
expired on September 28, 2005.
After his conviction became final, Inga did not further litigate his claims until nearly four
years later when, in June 2008, he filed a post-conviction relief application. Costia v. State, Case
No. 3AN-08-09000CI (dismissed, 2/14/2011). The June 2008 post-conviction relief application
was filed more than two years after the deadline for Inga to file his federal habeas petition, and it
did not serve to restart the statute of limitations. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th
Cir. 2003) (holding that the one-year habeas statute of limitations does not restart where that
1 Judicial notice is the “court’s acceptance, for purposes of convenience and
without requiring a party’s proof, of a well-known and indisputable fact; the court’s power to
accept such a fact.” BLACK ’ S LAW DICTIONARY (10th ed. 2014); see also Headwaters Inc. v.
U.S. Forest Service, 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (“Materials from a proceeding in
another tribunal are appropriate for judicial notice.”); see also FED . R. EVID . 201.
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period ends before petitioner’s state petition for post-conviction relief is filed).2
In support of his argument that equitable tolling applies due to his difficulties finding an
attorney, Inga attaches correspondence from the Alaska Public Defender’s Office indicating that
Inga wrote a letter dated December 28, 2006, asking for a review of his case based on newly-
discovered evidence, as well as handwritten notes detailing his attempts to locate an attorney in
July and August 2017. Docket Nos. 3-1, 3-3. But Inga’s response does not address the one-year
time period between when his conviction became final on September 28, 2004, and the
September 28, 2005, deadline for filing a § 2254 petition.3 Moreover, although the Court is not
unmindful of the plight of unrepresented litigants, a pro se petitioner’s “lack of legal
sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling” of the
AEDPA limitations period. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Inga thus
fails to show that he was diligently pursuing his claims between September 2004 and September
2005 or that an external factor beyond his control prevented him from timely filing a habeas
petition.
IT IS THEREFORE ORDERED:
1. 	The Petition is DISMISSED WITH PREJUDICE for untimeliness.
2. 	All pending motions are DENIED as moot.
3. 	The Court declines to issue a certificate of appealability. See 28 U.S.C.
2 As noted in the OSC, this Court’s records indicate that Inga filed a previous
§ 2254 petition dated February 23, 2016, which was denied because Inga failed to exhaust his
claims in state court. Case No. 3:16-cv-00054-RRB, Docket Nos. 1, 2. The statute of limitations
is not tolled while an unexhausted petition under § 2254 is pending in federal court, Mitchell v.
Valenzuela, 791 F.3d 1166, 1171 (9th Cir. 2015) (citing Rhines, 544 U.S. at 274-75), and in any
event, the initial petition was also filed long after the expiration of the one-year period under the
AEDPA.
3 The only pre-deadline documentation provided is a July 2, 2004, letter from
Inga’s appellate attorney, which states that appellate counsel was injured but “w[ould] come
down and talk with [Inga] about [the] next step” once he was able. Docket No. 3-1 at 1.
Notably, Inga does not allege that he mistakenly believed appellate counsel would file a federal
habeas petition on his behalf. Inga’s response primarily focuses on his “attempts to find a
lawyer after [he] was released from prison on Jan. 27, 2017.” Docket No. 3 at 2.
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§ 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a certificate of
appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.’” (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003))). Any further
request for a Certificate of Appealability must be addressed to the Ninth Circuit
Court of Appeals. See FED . R. APP . P. 22(b); 9TH CIR . R. 22-1.
4. 	The Clerk of Court is directed to issue a judgment accordingly.
Dated at Anchorage, Alaska this 25th day of September, 2019.
s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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