Davis v. Gastello

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ANTHONY J. DAVIS,
Petitioner,
v.
NATHAN GAUGHAN, Warden,
Respondent.
Case No. 18-cv-07113-JST
ORDER DENYING REQUEST FOR
RECONSIDERATION
Re: ECF No. 25
Petitioner Anthony J. Davis, an inmate at California Men’s Colony, in San Luis Obispo,
California, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging a 2015 conviction from San Mateo County Superior Court. On October 15, 2019, the
Court dismissed the petition as untimely. ECF No. 20. Over six years after this petition was
dismissed, Petitioner has filed the instant motion for reconsideration. ECF No. 25. For the
reasons set forth below, the Court DENIES the motion for reconsideration.
I. BACKGROUND
A. Procedural History
In 2015, Petitioner was convicted of five crimes arising out of a September 11, 2014
domestic violence incident and sentenced to a term of twenty-five years and four months in state
prison. ECF No. 13-1 at 2, 6. On August 16, 2017, the California Supreme Court denied his
petition for review. On November 14, 2017, Petitioner’s conviction became final. ECF No. 13-3;
ECF No. 20 at 4, 8.
On November 9, 2018, Petitioner sent this Court a letter seeking an extension of time to
file his federal habeas petition, stating that he believed that his deadline for filing his federal
habeas petition would soon expire:
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I’m writing to request a 30 day extension to file my petition for writ
of habeas corpus. The request is due to the need to obtain the
authorized officer of the trust officer’s signature on my In Forma
Pauperis Application. Also, to obtain a statement from the trust office
showing transactions on my account for the last six months. I was
informed by my appellate attorney, J. Frank McCabe, that I had 1 year
plus, 90 days to file a petition for writ of habeas corpus in the Northern
District Court after my case on appeal in the appellate ct got affirmed.
It’s my belief that all of that time will be up on the 14th – 16th;
sometime of next week. I do not have the time to request the
information from the trust office and get it back in time to send in
with the writ of habeas corpus w/out running out of time to file my
writ. So a 30-day extension is needed …. badly!
ECF No. 1. This letter was received by the Court on November 21, 2018, and entered into the
Court’s Electronic Filing System (“ECF”) on November 27, 2018. Id. The Clerk of the Court
opened an action based on this letter. Id.
In response to this letter, the Clerk of the Court sent Petitioner deficiency notices on
November 21, 2018, informing Petitioner that the action was deficient because (1) he had not
submitted a habeas petition on the proper form, and (2) he had not paid the filing fee or filed a
complete in forma pauperis application. ECF Nos. 2 and 3. In ECF No. 2, the Clerk of the Court
informed Petitioner that he did not have a habeas petition pending in this court, but that the letter
had been treated as a request and a new action had been opened based on the request:
It appears that you have no petition for a writ of habeas corpus
pending in our court; therefore, your request has been filed as a
new action, case number: CV 18-7113
• If you do not submit a completed petition on the proper form—
noting the above referenced case number—within 28 days from
the filing date stamped above, your action will be dismissed and
the file closed.
• If you did not intend to file a new action, please notify the court
within 28 days from the filing date stamped above.
A blank copy of our Petition for a Writ of Habeas Corpus form is
enclosed.
ECF No. 2 (emphasis in original). In ECF No. 3, the Clerk of the Court informed Petitioner that
he had 28 days from the filing date stamped on ECF No. 3 to file an in forma pauperis application,
and that failure to respond would result in dismissal of the action, closure of the file, and the filing
fee becoming due immediately. ECF No. 3. The filing date stamped on both ECF Nos. 2 and 3
was November 21, 2018.
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Petitioner filed a federal habeas petition which is docketed at ECF No. 7. The petition was
signed by Petitioner on December 21, 2018, ECF No. 7 at 6, ECF No. 7-1 at 2; prison officials
signed the envelope indicating that they received it from Petitioner on December 21, 2018, ECF
No. 7-3 at 2; the petition was received by the Clerk’s Office on December 26, 2018, ECF No. 7-3
at 1; the Clerk deemed the petition filed as of December 26, 2018; and the Clerk entered the
petition into ECF on December 31, 2018.
On October 15, 2019, the Court granted Respondent’s motion to dismiss the petition as
untimely, finding that the Antiterrorism and Effective Death Penalty Act (“AEDPA”)1 one-year
statute of limitations expired on November 14, 2018, and that the petition was untimely because it
was filed on December 21, 2018. ECF No. 20.
On September 28, 2020, Petitioner filed a letter requesting copies of his petition and the
Court’s October 15, 2019 Order, ECF No. 22, which the Court provided. Three years later, on
September 14, 2023, Petitioner filed another letter, requesting a copy of his petition, his November
8, 2018 letter, the Clerk’s Notices, and the Court’s October 15, 2019 Order, ECF No. 23, which
the Court provided. Two and a half years, on or about March 20, 2026, Petitioner filed the motion
for reconsideration now pending before the Court. ECF No. 25.
B. Applying the Mailbox Rule to Determine Pro Se Filing Dates
In determining filing dates for pleadings filed by pro se prisoners, courts apply the mailbox
rule so that prisoners are not penalized for delays caused by prison officials or the mail service.
The mailbox rule provides that a pro se state or federal petition is considered filed on the date a
prisoner hands the petition to prison officials for mailing, rather than the date the petition is
received by the court. Ramirez v. Yates, 571 F.3d 993, 996 n.1 (9th Cir. 2009); Jenkins v.
Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003), overruled on other grounds by Pace v.
DiGuglielmo, 544 U.S. 408 (2005). The Court looks to the petition and the envelope in which it
1 In legal writing, abbreviations may be used for lengthy terms for ease of later reference. In order
to signal to the reader that an abbreviation will be used, the term is stated in full the first time it is
used, and a parenthetical follows the full term with the abbreviation noted in quotation marks.
Here, “Antiterrorism and Effective Death Penalty Act (“AEDPA”)” indicates that the Court will
use the abbreviation AEDPA for future references to the Antiterrorism and Effective Death
Penalty Act in this order.
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arrived to determine when the prisoner handed the petition to prison officials for mailing.
To illustrate the application of the mailbox rule, the Court provides the following example.
Petitioner gave his petition (ECF No. 7) to prison officials for mailing to the court on December
21, 2018. ECF No. 7-3 at 2. The petition was received by the court on December 26, 2018. ECF
No. 7-3 at 1. The Clerk entered the petition into ECF on December 31, 2018. Applying the
mailbox rule, the Court deemed the petition filed on the earlier date of December 21, 2018 rather
than the later entry date of December 31, 2018. Application of the mailbox rule ensured that
Petitioner was not penalized for delays that were not within his control, e.g., the time it took for
prison officials to put the petition in the mail, the time it took for the postal service to deliver the
petition, and the time it took for the Clerk to process and docket the petition.
C. Dates and Deadlines in the Court’s Electronic Filing System (ECF)
For filings received by mail or by hand delivery to the Clerk’s Office, ECF records the date
the filing is received by the Court – the “filed on” date – and the date the filing is entered into ECF
– the “Entered:” date. Because there can be a delay in processing court mail and entering filings
into ECF, the entered date may differ from the filing date. An example of this is Petitioner’s
letter, ECF No. 1. In ECF, ECF No. 1 has a November 21, 2018 filing date, but a November 27,
2018 “Entered:” date.
ECF also lists some of the Court’s internal deadlines. The Court’s internal deadlines for
pro se filings are sometimes later than the deadlines set in court orders because the internal
deadlines accounts for potential delays due to prison processing and/or postal office processing
and delivery times. The internal deadlines listed on ECF are not official court deadlines and do
not supersede the deadlines set forth in court orders.
In the deficiency notices sent by the Clerk in this case, ECF Nos. 2 and 3, the Court
instructed Petitioner that the deadline for compliance was 28 days from the filing date stamped on
these notices. The filing date stamped on ECF Nos. 2 and 3 was November 21, 2018, and
therefore the deadline for compliance was December 19, 2018. In ECF, an internal court deadline
of December 31, 2018 is listed. Despite the internal court deadline listed on ECF, the deadline for
complying with the deficiency notices was December 19, 2018.
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II. DISCUSSION
A. Legal Standard
Where the court’s ruling has resulted in a final judgment or order (e.g., after dismissal or
summary judgment motion) and the petitioner is seeking reconsideration more than twenty-eight
days after the entry of judgment, the motion for reconsideration is based on Fed. R. Civ. P. 60(b).
Fed. R. Civ. P. 59(e) (requiring Rule 59(e) reconsideration motion to be filed within twenty-eight
days after entry of judgment); Fed. R. Civ. P. 60(b); Am. Ironworks & Erectors v. N. Am. Constr.
Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). Rule 60(b) provides for reconsideration where one
or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to
move for a new trial; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has
been satisfied; and (6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v.
ACandS Inc., 5 F.3d 1255, 1263 (9th Cir.1993). If a petitioner seeks reconsideration based on
grounds for relief (1) - (3), the motion must be brought no later than one year after the judgment
was entered. See Fed. R. Civ. P. 60(c)(1). If a petitioner seeks reconsideration based on grounds
for relief (4) - (6), the motion must be made within a “reasonable time.” See Fed. R. Civ. P.
60(c)(1).
Rule 60(b) provides a mechanism for parties to seek relief from a judgment when “it is no
longer equitable that the judgment should have prospective application,” or when there is any
other reason justifying relief from judgment. Jeff D. v. Kempthorne, 365 F.3d 844, 851 (9th Cir.
2004) (quoting Fed. R. Civ. P. 60(b)). “Reconsideration is appropriate if the district court (1) is
presented with newly discovered evidence, (2) committed clear error or the initial decision was
manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1K,
Multnomah Cty, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). A motion for
reconsideration “may not be used to raise arguments or present evidence for the first time when
they could reasonably have been raised earlier in the litigation.” Kona Enters., Inc. v. Est. of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000).
/ / /
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B. Analysis
Petitioner argues that he is entitled to reconsideration of the Court’s dismissal of the
petition as untimely because the undersigned altered the pleadings in order to render the petition
untimely. Specifically, Petitioner argues that the Clerk of the Court granted him an extension of
time to December 31, 2018 to comply with AEDPA’s limitations period as indicated by the entry
on ECF; that his petition was on December 26, 2018; and that his petition was therefore timely
filed. Petitioner speculates that the undersigned altered the pleadings because he is Jewish and
white and is targeting Petitioner because Petitioner is African American, Muslim, poor, and
mentally ill; and because the undersigned wants to keep Petitioner in prison until Petitioner dies
and does not want Petitioner on the streets of San Francisco. Petitioner states that the undersigned
putting AEDPA in quotes is evidence of the undersigned’s ill intent towards Petitioner. Petitioner
further alleges that if he had been appointed an attorney, he would not be in prison right now, and
that the undersigned refused to appoint him counsel so that the Court could take advantage of
Petitioner’s ignorance of the law and keep him in prison longer. Petitioner states that he has now
exhausted his state court remedies for his claims, and that he has found new evidence of juror
misconduct (perjury), judicial misconduct, prosecutorial misconduct (suppression of favorable
evidence), and ineffective assistance of trial counsel and appellate counsel. Finally, Petitioner
requests that the Court appoint him an attorney and assign a new judge to review his case. See
generally ECF No. 25.
Petitioner motion for reconsideration is properly considered pursuant to Fed. R. Civ.
60(b)(6) as Petitioner did not file this motion within a year of the judgment and does not allege
that the judgment is void or not satisfied.
The Court DENIES the motion for reconsideration because Petitioner has not demonstrated
that the Court committed clear error or that manifest injustice occurred when the Court dismissed
the petition as untimely. Petitioner’s arguments are based on a misunderstanding of the relevant
law, the legal significance of the Clerk’s deficiency notices, and the entries in ECF.
1. The Court Cannot Extend AEDPA’s statutory deadline
The one-year period set forth in 28 U.S.C. § 2244(d)(1) is a statutory deadline and courts
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lack the authority to extend this deadline by a procedural order.2 Ogle v. Unknown, No. 2:20-CV-
1108 CKD P, 2020 WL 8834813, at *1 (E.D. Cal. Jun. 5, 2020) (“This court does not have the
authority to extend the statute of limitations established in the Antiterrorism and Effective Death
Penalty Act (ADEPA) and cannot grant an extension of time for petitioner to file his initial habeas
corpus petition.”); Moses v. Cal., No. 1:11-CV-00956-JLT HC, 2011 WL 4055597, at *2 (E.D.
Cal. Sept. 12, 2011) (“The Court has no authority under the AEDPA to extend the one-year period
and thus afford a petitioner additional time to file a federal petition.”).
2. The Clerk’s Deficiency Notices Did Not Extend AEDPA’s Statutory
Deadline
Deficiency notices issued by a Clerk of the Court are ministerial notices and are not
judicial decisions. In re Jud. Misconduct, 752 F.3d 1204, 1205 (9th Cir. 2014) (order to show
cause form issued by clerk indicating possible jurisdictional defects was ministerial form and
“ultimate decision as to whether the pleading is defective, and what action to take if the defect is
not corrected, was retained by the judge.”). In this action, the deficiency notices issued informed
Petitioner of deficiencies with respect to the filing of this action. The November 21, 2018
deficiency notices issued by the Clerk of the Court informed Petitioner that the Clerk had opened
an action because it had received Petitioner’s letter, but that the action was deficient and could not
proceed unless the Clerk received (1) a completed petition, and (2) either the $5 filing fee or a
complete in forma pauperis application. The deficiency notices required Petitioner to file the
completed petition and either pay the filing fee or file a complete in forma pauperis application by
December 19, 2018. The deficiency notices were unrelated to AEDPA’s statute of limitations and
the December 19, 2018 deadline was not an extension of the AEDPA deadline. The December 19,
2018 deadlines were for correcting the deficiencies that would otherwise prevent the action from
going forward – lack of a completed petition and failure to either pay the filing fee or file an in
forma pauperis application. The December 31, 2018 deadlines listed on ECF reflect internal
2 Equitable tolling can excuse untimely filing. Holland v. Florida, 560 U.S. 631, 645, 649 (2010).
However, Petitioner is not entitled to equitable tolling, as the Court explained in its October 15,
2019 Order Granting Motion to Dismiss, Denying Certificate of Appealability. Dkt. No. 20 at 5-7,
13-15.
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deadlines that account for possible delays in the completed petition and the filing fee or in forma
pauperis application reaching the Court. Neither the December 19 nor the December 31, 2018
deadlines are related to, or an extension of, AEDPA’s one-year period for filing a federal habeas
petition.
3. There Was No Alteration of ECF Nos. 2 and 3
It is unclear to the Court what Petitioner believes are the alterations in ECF Nos. 2 and 3.
Petitioner appears to be confused by the discrepancies between the deadlines set forth in ECF Nos.
2 and 3 and the deadlines on ECF. As explained supra, the deadlines noted in ECF are informal
court deadlines for pro se pleadings intended to account for delays in prison processing of mail or
in postal mail, and to account for application of the mailbox rule. Regardless, neither the
deadlines set in ECF Nos. 2 and 3 nor the deadlines listed on ECF extended AEDPA’s one-year
limitations period.
4. Newly Discovered Evidence Does Not Render This Petition Timely
Petitioner alleges that he has found new evidence of juror misconduct (perjury), judicial
misconduct, prosecutorial misconduct (suppression of favorable evidence), and ineffective
assistance of trial counsel and appellate counsel. In relevant part, Section 2244(d)(1)(B), (D)
provides for the delayed commencement of the AEDPA one-year limitations period, allowing a
state prisoner to file their habeas petitions within one year of the latest of the date on which an
impediment to filing an application created by unconstitutional state action was removed, if such
action prevented the petitioner from filing; or the date on which the factual predicate of the claim
could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(B),
(D). However, the factual predicate of the claims raised in this petition were known to Petitioner
at the time of trial or during appellate proceedings, as indicated by the trial transcripts attached to
the petition. See generally ECF No. 7. If Petitioner is alleging that after this petition was
dismissed, he has discovered evidence supporting new, additional claims for habeas relief, that
does not render this petition timely, but would possibly render timely a new, separate habeas
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petition raising such claims.3 However, Petitioner is cautioned that any such petition could
constitute a second or successive petition within the meaning of 28 U.S.C. § 2244(b)(2) and would
therefore require Petitioner to first obtain an order from the Ninth Circuit Court of Appeals
authorizing this court to consider the successive petition. 28 U.S.C. § 2244(b).
5. Denying Request for Appointment of Counsel
Petitioner requests appointment of counsel, arguing that representation by counsel would
ensure that his petition would be found timely and that he would be granted habeas relief. This
case is closed, and Petitioner has not demonstrated that the Court’s dismissal of the petition as
untimely was erroneous. Appointment of counsel in a closed case serves no purpose.
6. No Basis for Recusal
Motions to disqualify, or recuse, a judge fall under two statutory provisions, 28 U.S.C. §
144 and 28 U.S.C. § 455. Section 144 provides for recusal where a party files a timely and
sufficient affidavit averring that the judge before whom the matter is pending has a personal bias
or prejudice either against the party or in favor of an adverse party, and setting forth the facts and
reasons for such belief. See 28 U.S.C. § 144. Similarly, Section 455 requires a judge to disqualify
himself “in any proceeding in which his impartiality might reasonably be questioned,” 28 U.S.C. §
455(a), including where the judge “has a personal bias or prejudice concerning a party,” id. §455
(b)(1). The substantive test for personal bias or prejudice is identical under Section 144 and
Section 455. United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). Specifically, recusal is
appropriate under both statutes where “a reasonable person with knowledge of all the facts would
conclude that the judge’s impartiality might reasonably be questioned.” Yagman v. Republic Ins.,
987 F.2d 622, 626 (9th Cir. 1993) (citation omitted). Consequently, an affidavit filed under
Section 144 will raise a question concerning recusal under Sections 455(a) and (b)(1) as well.
Sibla, 642 F.2d at 867. Here, Petitioner’s allegations categorically fail to establish any basis,
under either Section 144 or Section 455, for a determination that the Court’s impartiality might
reasonably be questioned. Petitioner’s basis for recusal is his factually incorrect belief that the
3 Petitioner appears to have recently filed a second habeas petition with this Court. See Davis v.
Schultz, Case No. 26-cv-2641-JST.
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Court altered court pleadings and changed deadlines, and that the Clerk granted him an extension
of time to comply with AEDPA’s one-year limitations period.
7. No Clear Error or Manifest Injustice in Dismissing Petition as
Untimely
Petitioner has not demonstrated that the Court clearly erred or committed manifest
injustice in dismissing the petition as untimely. Petitioner has not challenged the following
findings: the one-year AEDPA statute of limitations expired for Petitioner on November 14,
2018; Petitioner’s letter docketed at ECF No. 1 does not constitute a federal petition for purposes
of complying with AEDPA’s statute of limitations; and Petitioner’s petition was sent to the Court
on December 21, 2018. Based on these undisputed findings, the Court correctly found that the
petition was untimely. The Clerk’s deadlines for correcting the deficiencies noted in ECF Nos. 2
and 3 did not extend AEDPA’s statute of limitations period. Regardless, neither the Court nor the
Clerk can extend this statutory deadline.
CONCLUSION
For the reasons set forth above, the Court DENIES Petitioner’s motion for reconsideration.
ECF No. 25. This case remains closed.
This order terminates ECF No. 25.
IT IS SO ORDERED.
Dated: October 16, 2026
______________________________________
JON S. TIGAR
United States District Judge
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