The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
Petitioner, currently incarcerated at Pelican Bay State Prison
("PBSP") and proceeding pro se, filed the above-titled petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his
petition, petitioner challenges the constitutionality of two 1996
decisions by prison officials, which have resulted in his loss of
good time credits. See generally Young v. Kenny,
907 F.2d 874, 876-78 (9th Cir. 1990). Specifically, in April 1996, PBSP
officials found petitioner guilty of battery by use of a weapon
on another inmate, and revoked 360 days of good time credits. In
October 1996, petitioner was validated as a gang member and sent
to the Secured Housing Unit ("SHU"), where he was not eligible to
earn good time credits. Respondent has filed a motion to dismiss
the petition as untimely; petitioner has filed an opposition, and
respondent has filed a reply. BACKGROUND
On January 23, 1996, a PBSP guard observed petitioner fighting
with another inmate named Smith.*fn1 When the fight ended,
prison officials found a stabbing weapon lying between petitioner
and Smith. Smith suffered stab wounds, and petitioner did not.
Petitioner was placed in administrative segregation pending the
outcome of the PBSP disciplinary process; his disciplinary
hearing was held April 11, 1996. The hearing officer found
petitioner guilty of committing battery with a weapon on another
inmate. Petitioner lost 360 days of good time credits, and was
sentenced to 15 months in the SHU. Petitioner filed an appeal of
that decision, and on July 8, 1996, the appeal was partially
granted, on the ground petitioner may not have received a copy of
the medical report relied upon by the hearing officer; on July
10, 1996, PBSP officials ordered a rehearing on the discipline
charges be conducted by August 12, 1996. On August 14, 1996,
petitioner filed another inmate appeal because no rehearing had
been held. This appeal was rejected, and petitioner appealed both
the initial discipline and the failure to hold a rehearing to the
Inmate Appeals Branch ("IAB"), the final level of review. On
December 13, 1996, the IAB denied petitioner's appeal. On January
6, 1997, pursuant to the IAB's denial of petitioner's appeal,
PBSP officials rescinded their previous order for a rehearing. On
May 15, 1997, petitioner appealed the PBSP's rescission of the
prior order to the PBSP appeals office, which appeal was denied
on May 21, 1997.
In October 1996, PBSP validated petitioner as a gang member and
placed him on administrative segregation in the SHU. In December
1996, petitioner filed an administrative appeal of his gang
validation, which appeal was denied by PBSP officials at the
first formal level of review on January 21, 1997. No further
administrative appeals of the gang validation appear in the
record.
In March 1999, PBSP officials restored 90 of the 360 days of
good time credits that had been revoked in 1996. In August 1999
the order restoring 90 days of good time credits was rescinded. Petitioner filed administrative appeals
challenging the rescission of the previously restored credits;
the last such appeal was denied July 31, 2000, by the Director of
the California Department of Corrections ("Director") at the
final level of review.*fn2
On July 22, 1997, petitioner filed a petition for a writ of
habeas corpus in the Del Norte County Superior Court, challenging
the disciplinary hearing. The petition was denied August 11,
1997. Petitioner filed his next state habeas petition in the same
court on January 6, 2004, challenging both his discipline and his
indefinite placement in the SHU. That petition was denied
February 4, 2004. Thereafter, petitioner filed a habeas petition
on the same grounds in the California Court of Appeal, which
petition was denied March 25, 2004. Finally, petitioner filed a
habeas petition on the same grounds in the California Supreme
Court, which was denied April 22, 2004.
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") became law on April 24, 1996, and imposed a one-year
statute of limitations on petitions for a writ of habeas corpus
filed by state prisoners. Section 2244's one-year limitation
period applies to all habeas petitions filed by persons in
"custody pursuant to the judgment of a State court," even if the
petition challenges a pertinent administrative decision rather
than a state court judgment. See Shelby v. Bartlett,
391 F.3d 1061, 1063 (9th Cir. 2004) (quoting 28 U.S.C. § 2244(d)(1)). For
prisoners, such as petitioner, who challenge administrative
decisions that result in the loss of good time credits, §
2244(d)(1)(D) applies.*fn3 See id. at 1066. Pursuant
thereto, the petition must be filed within one year of the date
on which the "factual predicate of the claim could have been
discovered through the exercise of due diligence." See
28 U.S.C. § 2244(d)(1)(D). In the context of a petition challenging
an administrative decision by prison officials that results in
the loss of good time credits, the one-year limitations period begins to run on the date the prison
officials' administrative decision becomes "final." See
Shelby, 391 F.3d at 1066. The administrative decision becomes
final when the prisoner's final administrative appeal challenging
the decision is denied. See id. A prisoner challenging an
administrative decision is, however, entitled to statutory
tolling pursuant to § 2244(d)(2) for the period(s) during which
state habeas petitions were pending. Redd v. McGrath,
343 F.3d 1077, 1084 (9th Cir. 2003).
On May 21, 1997, prison officials denied petitioner's last
administrative appeal concerning the April 1996 discipline he
received for committing battery with a weapon against another
inmate. Petitioner's last administrative appeal concerning his
gang validation, specifically, the appeal to the first formal
level of review, was denied earlier, on January 21, 1997.
Consequently, because the latest denial of an administrative
appeal concerning the administrative decisions challenged in the
instant petition occurred on May 21, 1997, the limitations period
began to run on that date.*fn4 See id. The instant
petition was not filed until October 2004, over seven years
thereafter, and long after the one-year limitations period had
expired.
As noted, petitioner is entitled to tolling, pursuant to §
2244(d)(2), during such time as his habeas petitions regarding
his discipline and his gang validation were "pending" in the
state courts. On July 22, 1997, after approximately two months of
the limitations period had expired, petitioner filed the first of
these state habeas petitions in the Superior Court. Pursuant to §
2244(d)(2), the limitations period was tolled until August 11,
1997, when the Superior Court denied the petition. Petitioner's
next state habeas petition was not filed until January 2004, over
six years later. Although, under some circumstances, a petitioner is entitled to tolling for the period of time between successive
state habeas petitions, such tolling is not available where, as
here, a large amount of time has elapsed between the successive
petitions. See Carey v. Saffold, 536 U.S. 214, 219-20 (2002)
(finding statutory tolling between state habeas petitions not
available where there is "unreasonabl[e] delay"); Welch v.
Carey, 350 F.3d 1079, 1084 (9th Cir. 2003) (en banc) (finding
petitioner not entitled to tolling for four and a half years that
elapsed between successive state habeas petitions because such
delay is unreasonable). Accordingly, petitioner is not entitled
to tolling for the period between the denial of petitioner's
first state habeas petition and the filing of his second. As a
result, the limitations period started running again on August
11, 1997, the date the first state habeas petition was denied,
and expired approximately ten months later, in June
1997.*fn5
Petitioner does not dispute that his petition is untimely under
the foregoing analysis. Rather, petitioner contends that
dismissing the petition as untimely would constitute a
"fundamental miscarriage of justice." Although a federal habeas
petition challenging a state court criminal conviction may be
excused from the AEDPA limitations period based on a "miscarriage
of justice," see Majoy v. Roe, 296 F.3d 770, 776-77 (9th Cir.
2002) (citing Schlup v. Delo, 513 U.S. 298 (1995)), petitioner
provides no authority that the untimeliness of a petition
challenging a prison disciplinary decision can be excused on such
grounds. Moreover, even if such an exception did exist, it would
require that petitioner set forth "new evidence" establishing he
is factually innocent of the charge for which he was disciplined.
See Schlup, 513 U.S. at 316, 321 (limiting "miscarriage of
justice" exception to habeas petitioners who can show "actual
innocence"); Bousley v. United States, 523 U.S. 614, 623-24
(1998) (holding "actual innocence" means inmate is factually
innocent). The only evidence petitioner offers in support of his
argument is the July 10, 1996 decision by prison officials on petitioner's appeal of his discipline, in
which they initially ordered a rehearing. (See Respt's Ex. 1 at
99). Such decision is not "new evidence," as the order was given
to petitioner, and referenced by him, in the course of his
administrative appeals of the discipline he received. Of equal if
not more significance, the order does not establish petitioner's
factual innocence of the battery charge; it indicates, at most,
that petitioner was not provided a copy of a medical report
relied upon to establish his guilt. Accordingly, even if there
existed a "miscarriage of justice" exception for untimely
petitions such as the one herein, petitioner has not established
the existence of any such miscarriage of justice.*fn6
For the foregoing reasons, respondent's motion to dismiss the
petition as untimely is GRANTED and the ...