The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) ADOPTING THE REPORT & RECOMMENDATION OF THE MAGISTRATE JUDGE; (Doc. No. 33.) (2) REJECTING PETITIONER'S OBJECTIONS; (Doc. No. 35) (3) GRANTING RESPONDENTS' MOTION TO DISMISS THE PETITION; (Doc. No. 24) and (4) DENYING CERTIFICATE OF APPEALABILITY.
Petitioner Wesley W. Hunter ("petitioner"), a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition challenges a prison disciplinary action taken against him in which he received a Rules Violation Report for battery on a peace officer and forfeited 150 days of behavioral credits. This matter was referred to United States Magistrate Judge Barbara L. Major pursuant to 28 U.S.C. § 636(b)(1)(B). On December 4, 2007, Magistrate Judge Major issued a Report and Recommendation ("Report") recommending the Court deny the petition. (Doc. No. 33.) Petitioner filed objections to the Report on January 15, 2008. (Doc. No. 35.)
Following de novo review of petitioner's claims, the Court finds Magistrate Judge Major's Report to be thorough, complete, and an accurate analysis of the legal issues presented in the petition. For the reasons explained below, the Court: (1) adopts in full Magistrate Judge Major's Report; (2) rejects the petitioner's objections; (3) grants respondents' motion to dismiss the petition; and (4) denies a certificate of appealability.
The magistrate judge accurately summarized the facts of petitioner's case. While incarcerated at Centinela State Prison Facility, petitioner intentionally bumped his chest against the chest of Correctional Officer Quinn during a verbal altercation on April 22, 2002. Correctional Officer Gutierrez, assigned to investigate the incident, issued petitioner a Rules Violation Report ("RVR") for battery on a peace officer on May 8, 2002. At a hearing on May 22, 2002, Correctional Lieutenant Granish found petitioner guilty by a preponderance of the evidence, and assessed a forfeiture of 150 days of behavioral credits. The Director of the Department of Corrections granted petitioner's appeal in part on March 24, 2003 and remanded for a new hearing. At a hearing held May 20, 2003, Correctional Lieutenant Daubenspeck found petitioner guilty and petitioner again forfeited 150 days of behavioral credits. The Director denied petitioner's second round of appeals on November 18, 2003. Warden G. J. Giurbino granted petitioner's third appeal, specifically directed at the classification score resulting from the RVR, on January 26, 2004. As a result, correctional staff deducted eight points from petitioner's custody classification score.
Petitioner filed a petition for writ of habeas corpus to the Superior Court. The court denied the writ on March 25, 2005. On May 23, 2005, the California Court of Appeal denied petitioner's appeal of the denial of the writ. Petitioner then filed a writ of habeas corpus to the California Supreme Court on May 10, 2006, which the court denied on June 14, 2006.*fn1
Federal Procedural Background
Petitioner filed a federal petition for writ of habeas corpus on October 30, 2006 (Doc. No. 1) which the Court dismissed due to petitioner's failure to pay the filing fee and name a proper respondent. (Doc. No. 2.) After two extensions of time, petitioner filed a first amended petition on April 13, 2007. (Doc. No. 15.) Respondents filed a motion to dismiss on July 11, 2007. (Doc. No. 24.) Petitioner opposed the motion on September 14, 2007. (Doc. No. 30.) On December 4, 2007, Magistrate Judge Major issued a Report recommending the motion to dismiss be granted. (Doc. No. 3.) Petitioner filed objections to the Report on January 15, 2008. (Doc. No. 35.)
Respondents have filed a motion to dismiss the instant petition on the grounds (1) the petition is barred by the statute of limitations and (2) petitioner has failed to exhaust his state court remedies. The magistrate judge recommended the Court dismiss the petition on either of these grounds.
1. Statute of Limitations
Legal Standard Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a state court prisoner may only file a federal petition for writ of habeas corpus within the one-year statutory period of limitations. 28 U.S.C. § 2244(d). The statute of limitations applies to habeas petitions contesting administrative decisions. Shelby v. Barlett, 391 F.3d 1061, 1063 (9th Cir. 2004). The period runs from the later of four dates: the date the judgment became final upon direct review, the date a state-created impediment to filing such an application is removed, the date a ...