Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

HOOD v. GALAZA

February 25, 1999

VICTOR LYLE HOOD, PLAINTIFF,
v.
GEORGE GALAZA, WARDEN, DEFENDANT.



The opinion of the court was delivered by: Huff, Chief Judge.

Order Adopting Report and Recommendation of Magistrate Judge; Denying Petition for Writ of Habeas Corpus

Petitioner in the above-entitled matter filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Respondent opposed the petition. On November 19, 1999, the magistrate judge in this matter issued a Report and Recommendation, recommending the petition be denied. On December 21, 1999, petitioner filed objections to the Report and Recommendation. On February 11, 1999, respondent filed a reply to petitioner's objections. After fully considering the papers filed and the law, the court adopts the Report and Recommendation issued by the magistrate judge and denies the petition for writ of habeas corpus.

Background

Petitioner was convicted of second degree murder by a jury verdict on September 11, 1979, in the Superior Court for the County of San Diego. On November 2, 1979, petitioner was sentenced to fifteen years to life. On December 12, 1979, petitioner filed a notice of appeal with the California Court of Appeal. That court affirmed the judgment on April 21, 1981. On May 21, 1981, petitioner filed a petition for hearing with the California Supreme court. That petition was denied on July 8, 1981.

On July 29, 1997, petition mailed his petition for a writ of habeas corpus to the California Court of Appeal. That petition was denied on August 19, 1997. Petitioner mailed his petition to the California Supreme Court on September 16, 1997. He received notice of the Supreme Court's denial of his petition on March 30, 1998.

Petitioner incorrectly mailed the instant habeas corpus petition to the United States District Court for the Eastern District of California on March 31, 1998. The petition was transferred to this court on May 4, 1998. On October 28, 1998, the court ordered additional briefing from respondent on the application of the "mailbox rule" to the petition. On November 18, 1998, the magistrate judge in this matter issued a Report and Recommendation, recommending that Hood's section 2254 petition for writ of habeas corpus be dismissed as time-barred, pursuant to 28 U.S.C. § 2244(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (eff.Apr. 24, 1996).

DISCUSSION

I. Statutory Tolling

Under the amendments to habeas corpus law effected by the AEDPA, state prisoners had at least until April 24, 1997 to file section 2254 motions challenging their conviction or sentence if the challenge arose prior to the enactment of the AEDPA. Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). . The AEDPA amended 28 U.S.C. § 2244 by imposing a one-year statute of limitations for the filing of a habeas corpus petition seeking relief from a state court conviction, which runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). In pertinent part, Section 2244(d)(1) provides

    (d)(1) A 1-year period of limitation shall apply to
    an application for a writ of habeas corpus by a
    person in custody pursuant to the judgment of a
    State court. The limitation period shall run from
    the latest of —
    (A) the date on which the judgment became final by
    conclusion of direct review or the expiration of
    the time for seeking such review;
  (B) the date on which the impediment to filing an
  application created by State action in violation of
  the Constitution or laws of the United States is
  removed, if the applicant was prevented from filing
  by such State action;
  (C) the date on which the constitutional right
  asserted was initially recognized by the Supreme
  Court, if the right has been newly recognized by the
  Supreme Court and made retroactively applicable to
  cases on collateral review; or
  (D) the date on which the factual predicate of the
  claim or claims presented could have been discovered
  through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). The AEDPA's time limit was intended to halt the unacceptable delay which has developed in the federal habeas process. Beeler, 128 F.3d at 1288 (9th Cir. 1997).

Because petitioner Hood's conviction became final before the AEDPA's enactment, the one-year statute of limitations began to run on the AEDPA's effective date of April 24, 1996, giving petitioner until April 23, 1997, to file a federal petition for habeas corpus. However, the AEDPA also requires that "[t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2); see Ashmus v. Calderon, 977 F. Supp. 987, 992 (N.D.Cal. 1997).

Additionally, this court will apply the "mailbox rule" established in Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), to habeas corpus petitions filed under 28 U.S.C. § 2254. See, e.g., James v. Madison Street Jail, 122 F.3d 27 (9th Cir. 1997) (applying Houston rule to the filing of trust account statements); Schroeder v. McDonald, 55 F.3d 454, 459 (9th Cir. 1995) (applying Houston rule to the service of a Rule 59(e) motion); Caldwell v. Amend, 30 F.3d 1199, 1201 (9th Cir. 1994) (applying the Houston rule to the filing of a Rule 50(b) motion); Faile v. Upjohn Co., 988 F.2d 985, 988-89 (9th Cir. 1993) (applying the Houston rule to the service of discovery responses). The "mailbox rule" provides that a prisoners' notice of appeal is considered filed when ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.