United States District Court, S.D. California
December 15, 2005.
ROBERT JOHN GARCIA, Petitioner,
JEANNE S. WOODFORD, Director, Respondent.
The opinion of the court was delivered by: DANA SABRAW, District Judge
ORDER: (1) ADOPTING THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE; (2) DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS; AND (3) DENYING MOTION FOR EVIDENTIARY
Petitioner Robert John Garcia, a state prisoner proceeding pro
se, petitions this Court for writ of habeas corpus pursuant to
28 U.S.C. § 2254. The Honorable Leo S. Papas, United States
Magistrate Judge, has issued a Report and Recommendation ("R&R")
pursuant to 28 U.S.C. § 636(b)(1) and Civ.L.R.HC.2, recommending
that the Court deny Petitioner's writ of habeas corpus. Having
considered all of the relevant pleadings, the applicable law, and
the R&R, the Court adopts Judge Papas' recommendation and
dismisses Petitioner's application for writ of habeas corpus. In
addition, the Court denies Petitioner's motion for an evidentiary
FACTUAL AND PROCEDURAL BACKGROUND
On April 18, 1974, Petitioner was convicted of one count of
first degree murder and one count of second degree murder.
Petitioner was given concurrent sentences. After Petitioner
served a minimum term, he became eligible for parole
consideration. On January 23, 1996, the Board of Prison Terms
conducted a Parole Consideration Hearing and found Petitioner
unsuitable for parole.
On April 5, 2001, Petitioner filed a petition for writ of
habeas corpus with the Superior Court challenging the Board of
Prison Terms' decision. The Superior Court denied the petition on
June 28, 2001.
Petitioner subsequently filed a petition for writ of habeas
corpus with the California Court of Appeal. The Court of Appeal
denied that petition on August 2, 2001.
On September 6, 2001, Petitioner filed a petition for writ of
habeas corpus with the California Supreme Court. On March 27,
2002, the petition was denied.
On June 5, 2002, Petitioner filed a petition for writ of habeas
corpus in the United States District Court for the Central
District of California. On July 2, 2002, the district court
denied the petition without prejudice as a successive petition,
noting that the application before the court was Petitioner's
On November 23, 2004, the Ninth Circuit reversed the decision
of the district court and remanded the case for further
proceedings. (See Garcia v. Woodford, 118 Fed.Appx. 156 (9th
On March 28, 2005, Petitioner's case was transferred from the
United States District Court for the Central District of
California to this court. Thereafter, the current Petition,
Answer, and Traverse were assigned to United States Magistrate
Judge Leo S. Papas. On June 3, 2005, Respondent filed a
Superseding Answer to Petitioner's petition. Petitioner filed a
Supplemental Traverse on June 30, 2005.
On July 11, 2005, the Magistrate issued a R&R, recommending
that this court deny the petition for writ of habeas corpus.
Petitioner filed an objection to the R&R on August 2, 2005.
Subsequently, on August 4, 2005, Petitioner filed a motion for an
evidentiary hearing. II.
REVIEW OF R&R: LEGAL STANDARD
The duty of the district judge regarding the review of an R&R
is set forth in Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1).
Where objections are filed, Section 636(b)(1) directs the
district judge to review de novo "those portions" of the R&R to
which objections have been made. See Hunt v. Pliler,
384 F.3d 1118, 1124-25 (9th Cir. 2004). The district judge may then
accept, reject, or modify, in whole or in part, the magistrate
judge's findings and recommendations. 28 U.S.C. § 636(b)(1).
However, as to those portions of the R&R to which no objections
have been made, the district judge may assume the correctness of
the magistrate judge's findings and recommendations. See U.S. v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) ("the
district judge must review the magistrate judge's findings and
recommendations de novo if objection is made, but not
otherwise.") (emphasis in original). See also Thomas v. Arn,
474 U.S. 140, 149-52 (1985) ("It does not appear that Congress
intended to require district court review of a magistrate's
factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings."). A
failure to object is deemed a sort of "procedural default,"
waiving the party's right to review by the district judge. Id.
In his petition for writ of habeas corpus, Petitioner raises
two claims for relief. First, Petitioner contends he has been
administratively discriminated against and deprived of a
statutory and state created liberty interest procedure in
Department of Corrections, Directive No. 75/30. (R&R at 3-4.) In
his second claim for relief, Petitioner contends he should have
been discharged from the California Department of Corrections
pursuant to Cal. Code. Regs. Title 15, § 2000(B)(2) (2005) and
Cal. Pen. Code § 1170.2(a)-(b). (Id.)
A. AEDPA's One-Year Statute of Limitations
Respondent argues that the Petition is barred by the
Antiterrorism and Effective Death Penalty Act's ("AEDPA") statute
of limitations. Provisions of AEDPA apply to habeas petitions
filed in federal court after AEDPA's effective date of April 24,
1996. Lindh v. Murphy, 521 U.S. 320 (1997). Because the present
Petition was filed on June 5, 2002, AEDPA applies to this case. Before the passage of AEDPA, prisoners had "almost unfettered
discretion in deciding when to file a federal habeas petition."
Calderon v. U.S. Dist. Ct., 128 F.3d 1283, 1286 (9th Cir.
1997), cert. denied, 118 U.S. 897 (1998), overruled on other
grounds by Calderon v. U.S. Dist. Ct, 163 F.3d 530, 540 (9th
Cir. 1998). After passage of AEDPA, the time for state prisoner's
seeking federal habeas relief was drastically limited. AEDPA
amended 28 U.S.C. § 2244 in part, by adding subdivision (d),
which mandates a one-year limitation period for state prisoners
to file habeas petitions in federal court. Section 2244(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
the 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.
(2) The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward any period of limitation under this
28 U.S.C. § 2244(d) (West Supp. 2003).
For federal habeas petitions challenging post-conviction issues
such as parole decisions, the Ninth Circuit has held that the
statute of limitations begins to run after the date the factual
predicate could have been discovered. Shelby v. Bartlett,
391 F.3d 1061, 1066 (9th Cir. 2004); Redd v. McGrath,
343 F.3d 1077, 1082-85 (9th Cir. 2003). Under AEDPA, Petitioner would have
had until January 24, 1996 one year after his parole decision
became final to file his petition for writ of habeas corpus. However, for petitioners whose judgments became final before
the effective date of AEDPA, the AEDPA statute of limitations
begins to run from the effective date of the statute. In such
instances, petitioners had until April 24, 1997 to file a timely
petition in federal court. Here, because the decision of the
Board of Prison Terms became final four months prior to the
enactment of AEDPA, Petitioner had until April 24, 1997 to file a
timely petition, absent any legitimate reason to toll the
limitations period.*fn1 Patterson v. Stewart,
251 F.3d 1243, 1246 (9th Cir. 2001).
Petitioner's first petition in the State court for
post-conviction relief was filed on April 5, 2001. Thus, even
considering the effective date of AEDPA as the one-year statute
of limitations start date, Petitioner filed his petition 1442
days nearly four years after the statute of limitations had
expired. Moreover, since the petition for writ of habeas corpus
in the state court was not filed until after the expiration of
the AEDPA statute of limitations, that state petition did not
toll the statute for purposes of filing in federal court.
Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); see
also Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Green
v. White, 223 F.3d 1001, 1003 (9th Cir. 2000). Tolling merely
pauses the statute of limitations clock; it does not restart the
limitations period. Id.
Petitioner relies upon Rosa v. Senkowski, 148 F.3d 134 (2d
Cir. 1998), for the proposition that his claim is timely. In
Rosa, the Second Circuit held that AEDPA does not bar habeas
petitions filed within one year of effective date of AEDPA, even
when the petition is filed more than ten years after conviction
becomes final. Id. at 135-36. Here, however, Petitioner failed
to file his petition within one year of the effective date of
AEDPA. Accordingly, Petitioner cannot now argue that his claim is
B. Equitable Tolling
In the R&R, the Magistrate Judge concluded that AEDPA's
equitable tolling provision did not apply to the present case.
Petitioner raises no specific objections to this finding.
AEDPA's one-year statute of limitations is subject to equitable
tolling. Redd, 343 F.3d at 1081 (quoting Stillman v. LaMarque, 319 F.3d 1199, 1202 (9th
Cir. 2003)). However, equitable tolling is appropriate only if
"`extraordinary circumstances beyond a prisoner's control make it
impossible to file a petition on time.'" Redd, 343 F.3d at 1081
(citation omitted). The Ninth Circuit also cautioned that
district judges must "take seriously Congress's desire to
accelerate the federal habeas process" and "only authorize
extensions when this high hurdle is surmounted." Calderon,
supra, 128 F.3d at 1289.
Here, Petitioner fails to present any "extraordinary
circumstances," or otherwise offer any facts to warrant equitable
tolling of the statute of limitations. Accordingly, Petitioner's
application for writ of habeas corpus is untimely.
C. Evidentiary Hearing
Petitioner also requests that this Court grant his request for
an evidentiary hearing. Because Petitioner's motion was filed
after the United States Magistrate Judge issued a R&R for the
underlying matter, we review for the first time Petitioner's
request for an evidentiary hearing.
Before the enactment of the Anti-terrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), district courts enjoyed
considerable discretion regarding a habeas petitioner's request
for an evidentiary hearing. See Baja v. Ducharme,
187 F.3d 1075, 1077 (9th Cir. 1999) (citing Cardwell v. Greene,
152 F.3d 331, 336-340 (4th Cir. 1998), cert. denied,
525 U.S. 1037 (1998)). In accordance with Rule 8(a) of the Rules Governing
§ 2254 cases, an evidentiary hearing was available where an
applicant had alleged facts which, if proved, would entitle him
to relief. See Townsend v. Sain, 372 U.S. 293, 312-13 (1963).
If it was further shown that the habeas applicant did not receive
a full and fair evidentiary hearing in a State court, a federal
evidentiary hearing was mandatory. Townsend, 372 U.S. at 313.
To this end, the Court specified six circumstances in which a
hearing was required: (1) if the merits of the factual dispute
were not resolved in the State hearing; (2) if the state factual
determination is not fairly supported by the record; (3) if the
factfinding procedure employed by the State court was not
adequate to afford a full and fair hearing; (4) if there is a
substantial allegation of newly discovered evidence; (5) if the
material facts were not adequately developed at the State court
hearing; or (6) if for any reason it appears that the State trier
of fact did not afford the habeas applicant a full and fair fact
hearing. Id. at 312. In Keeney v. Tamayo-Reyes, the Supreme
Court clarified that an evidentiary hearing was required only if
the petitioner could show cause for his failure to develop the facts in State court proceedings and actual prejudice
resulting from that failure. Keeney v. Tamayo-Reyes,
504 U.S. 1, 11 (1992).
After the enactment of AEDPA, Congress narrowed the
availability of evidentiary hearings in federal habeas cases.
Today, a habeas petitioner seeking an evidentiary hearing in
federal court must clear the "initial hurdle" of
28 U.S.C. § 2254(e)(2). McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir.
1998). Section 2254(e)(2) provides:
If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the
court shall not hold an evidentiary hearing on the
claim unless the applicant shows that
(A) the claim relies on
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.
28 U.S.C. § 2254(e)(2). Thus, after AEDPA, a federal court's
first task in determining whether to grant an evidentiary hearing
is to ascertain whether the petitioner "has failed to develop the
factual basis of a claim in State court proceedings." See
Cardwell v. Greene, 152 F.3d at 337. If so, the court must deny a
hearing unless one of the two exceptions set forth in Section
2254(e)(2)(A) & (B) has been met. Id. "If, on the other hand,
the applicant has not `failed to develop' the facts in state
court, the district court may proceed to consider whether a
hearing is appropriate, or required, under Townsend." Id.
Here, Petitioner has not "failed to develop" the factual bases
of any of his claims in State court proceedings. Thus, the Court
may consider the propriety of an evidentiary hearing under the
pre-AEDPA standard of Townsend and its progeny. See Baja,
187 F.3d at 1078. Under the Townsend standard, however, the Court
denies Petitioner's request for an evidentiary hearing. Quite
simply, Petitioner has alleged no facts which, if proved, would
entitle him to relief. IV.
For the reasons stated above, the Court ADOPTS the findings,
conclusions and recommendations contained in the Magistrate
Judge's R&R and DISMISSES the petition for writ of habeas
corpus with prejudice. The Court also DENIES Petitioner's
motion for an evidentiary hearing. The Clerk of the Court shall
enter judgment accordingly.
IT IS SO ORDERED.
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