The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION RE GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS; DENYING OBJECTIONS
On December 20, 2007 Magistrate Judge William McCurine, Jr. entered a Report and Recommendation Re: Granting Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus ("R & R") on the ground that Petitioner's claims are barred by AEDPA's one year statute of limitations. The R & R, expressly incorporated herein, thoroughly and thoughtfully analyzed Petitioner's claims and recommended that Respondent's motion be granted. Petitioner has filed objections to the R & R ("Objections"), and Respondent did not file a response to the Objections. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court denies the Objections and adopts the R & R in its entirety. The Clerk of Court is instructed to close the file.
Petitioner alleges that as a part of a plea agreement, he was told he would only serve a maximum of thirteen years and six months of his twenty-seven-year-to-life term (Petition at 6B-6C). Both the presiding state court judge and Petitioner's trial lawyer stated that defendants were commonly told at that time that, with good behavior and work credits, they would be released in half the amount of time of their initial sentence. (Pet. Exh. G and B).
However, Penal Code § 2933, the law allowing state prisoners to participate in the work credit program, technically did not apply to prisoners serving life sentences. See 70 Op. Atty Gen. Cal 49. In 1987, the California Attorney General clarified the rule, and said that it would no longer apply to inmates serving "25 years to life, 15 years to life, or life with a possibility of parole." Id. In the following year, a prisoner challenged that clarification by the Attorney General. The court held in In re Monigold, 205 Cal. App. 3d 1224, 1228 (Cal. Ct. App. 1988) that petitioner was not entitled to participate in the § 2933 program because the law is "expressly applicable only to those prisoners sentenced to determinate terms." Id. However, the court held that a prisoner was entitled to credit for any time accrued.*fn1 Id.
Following clarification of the work credit program, Petitioner met with a Court Counselor at the correctional facility and provided with a time sentence recalculation form. (Pet. Exh. H). Because of the credits that Petitioner earned under the work credits program, the maximum eligible parole date was moved from March 7, 2011 to December 8, 1999. Id. Petitioner claims that he was told that his initial plea agreement for thirteen and a half years was no longer good. (Objections at 9). However, Petitioner mischaracterizes his sentence when he claims that he agreed to only thirteen and a half years. Both the Criminal Minutes - Pronouncement of Judgment and the Court of Appeal Opinion Affirming Conviction submitted by Petitioner state that "he was sentenced to 25 years to life for the murder with a two-year enhancement for using a firearm." (Lodgment 3, Court of Appeal Opinion Affirming Conviction).
Petitioner had an initial parole consideration hearing on January 13, 2000, which was denied. (Lodgment 4 at 1a). Petitioner had a subsequent parole consideration hearing on March 29, 2004, which was again denied. Id.
Petitioner raises several main Objections to the R & R. First, Petitioner contends that the limitations period of 28 U.S.C. §2241(d)(1) began to run when the Parole Board denied him parole on January 13, 1999. The R & R determined that the applicable date on which the statute of limitations began to run occurred when Respondent continued to incarcerate him beyond what Petitioner believed to be a 13 1/2 year sentence, or September 7, 1997.
Petitioner contends that the Ninth Circuit has held that the "factual predicate of [the petitioner]'s claims [is] the Board's denial of [the] administrative appeal." Redd v. McGrath, 343 F.3d 1077 (9th Cir. 2003); See Shelby v. Bartlett, 391 F.3d 1061 (9th Cir. 2004). However, both cited Ninth Circuit cases involve petitioner's challenging decisions made by the Parole Board or an administrative body. Redd challenged the board's parole denial, and Shelby challenged a disciplinary order. Unlike the present case, these cases do not challenge the initial plea agreement, but the decision of the Board itself. See Singleton v. Curry, 2007 WL 1068227 (N.D. Cal 2007); Hudson v. Curry, 2007 WL 140031 (N.D. Cal 2007). Both Singleton and Hudson held that the allegedly agreed upon date for release starts the statute of limitations since the writ is for failure to release after that date and not for a decision made by the board.*fn2 Consequently, the court rejects this Objection.
Second, Petitioner argues that § 2244(d)(1)(B) should apply to him and not § 2244(d)(1)(D). Petitioner states that the comments by the prison Court Counselor fraudulently led him to believe that he couldn't file a petition, and therefore, the starting date should be "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." 28 U.S.C. § 2254(d)(1)(B).
An assertion that the statute of limitation was delayed by a state-created impediment requires a showing of a due process violation. Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002). Generally, judicial omissions, governmental interference, or omissions by counsel are three possible categories which entitle someone to equitable tolling. In several cases, courts have found that equitable tolling was available to plaintiffs who were hindered by governmental interference. See Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc)(remanding to district court for further development of record); Egerto v. Cockrell, 334 F.3d 433 (5th Cir. 2003); Stillman v. LaMarque, 319 F.3d 1199 (9th Cir. 2003); Miles v. Prunty, 187 F.3d 1104 (9th Cir. 1999). In Whalem/Hunt, the failure of the prison law library to provide any materials describing AEDPA may have been an impediment requiring equitable tolling. Whalem/Hunt, 233 F.3d at 1147-48. In both Stillman and Miles, the court held that procedural errors by the prison official entitled the petitioner to equitable tolling. Stillman, 319 F.3d at 1202 (holding that a failure of a prison litigation coordinator to timely obtain the petitioner's signature after promising to do so entitled petitioner to equitable tolling); Miles, 187 F.3d at 1107 (holding that the prison authorities' failure to timely mail a check after withdrawing funds from the prisoner's trust fund warranted equitable tolling).
Additionally, negligence or omissions by petitioner's counsel do not entitle a petitioner to equitable tolling. See Stillman,319 F.3d at 1199. Incorrect advice by counsel about the statute of limitations does not entitle a petitioner to equitable tolling because it is not an extraordinary circumstance. Miranda v. Castro, 292 F.3d 1063 (9th Cir.), cert. denied, 537 U.S. 1003 (2002); Frye v. Hickman, 273 F.3d 1144 (9th Cir. 2001), cert. denied, 535 U.S. 1055 (2002).
Here, Petitioner has failed to show that the government impeded his ability to file a timely claim. Petitioner's authorities, Whalem/Hunt and Egerto, are not persuasive. Both cases involve the lack of library access, an issue not present in this case. Petitioner does not allege that he did not have library access. Rather, he argues that he did not discover these authorities until later. This is not governmental interference but a demonstrated lack of diligence by Petitioner. While Petitioner might claim that his conversation with the Court ...