The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner Daniel Torres, a state inmate proceeding pro se, challenges the California Department of Corrections ("CDCR") Administrative Appeals July 7, 2003 decision that found Petitioner guilty of possession of a controlled substance with a federal petition for writ of habeas corpus ("Petition"), pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] Respondent submitted a Motion to Dismiss the Petition ("Motion"), asking this Court to dismiss the Petition as untimely under 28 U.S.C. 2244(d)(1). [Doc. No. 6]. Petitioner submitted an Opposition to Respondent's Motion to Dismiss ("Opposition"). [Doc. No. 9]. The Court's docket indicates that Respondent did not file a Reply brief.
On March 25, 2008, Magistrate Judge William McCurine issued a Report and Recommendation ("Report), recommending that Respondent's Motion to Dismiss be granted. For the reasons stated below, the Court adopts the well-reasoned Report and Recommendation of the Magistrate Judge and GRANTS Respondent's Motion to Dismiss.
The following table (based on information set forth in detail in the Report) presents a summary of the dates relevant to the statute of limitations:
July 7, 2003Petitioner found guilty of possession of a controlled substance by Calipatria State Prison CAL Facility D Unit. (Lodgment 2, Ex. A.)
October 29, 2004Petitioner's second level appeal is denied. (Lodgment 2, Ex. A.)
February 9, 2005Petitioner's third-level administrative appeal to Director of Inmate Appeals in Sacramento is rejected by the Inmate Appeals Branch as incomplete. (Lodgment 2, Ex. A.)
February 16, 2005Petitioner receives notice of rejection by the Inmate Appeals Branch. (Opp'n at 7.)
February 17, 2005Absent the finding of a state impediment or other applicable tolling, the AEDPA statute of limitations presumptively begins to run. See Redd v. McGrath, 343 F.3d 1077, 1084 (2003).
March 10, 2005Lancaster Prison returns, unmailed, Petitioner's third-level administrative appeal to him for failure to meet legal mail criteria. (Appendices to Opposition and Habeas Corpus Petition, Appendix C.)
March 13, 2005Petitioner attempts to resubmit third-level administrative appeal to Director of Inmate Appeals in Sacramento. (Appendices to Opposition and Habeas Corpus Petition, Appendix C.)
March 20, 2005Petitioner's third-level administrative appeal is returned to him. (Appendices to Opposition and Habeas Corpus Petition, Appendix C.)
October 11, 2005Petitioner files a writ of habeas corpus in Imperial County Superior Court challenging his original July 7, 2003 guilty finding of possession of a controlled substance. (Lodgment 2.)
May 23, 2006Trial court denies Petitioner's habeas claim. (Lodgment 3.)
September 30, 2006Even with applicable statutory tolling, Petitioner's AEDPA one-year statute of limitations has run.
November 13, 2006Petitioner files a second writ of habeas corpus in Imperial County Superior Court challenging the evidence considered by the court in its first denial. (Lodgment 4.)
January 17, 2007Trial court denies Petitioner's second habeas claim and finds it to be successive. (Lodgment 5.)
February 16, 2007Petitioner files Petition for writ of habeas corpus with California Court of Appeal. (Lodgment 6.)
May 22, 2007California Court of Appeal denies Petition for writ of habeas corpus. (Lodgment 7.)
June 6, 2007Petitioner files Petition for writ of habeas corpus with California Supreme Court Lodgment 8.)
June 27, 2007California Supreme Court denies Petition for writ of habeas corpus. (Lodgment 9.)
July 11, 2007Petitioner files a Petition for Writ of Habeas Corpus in federal court. [Doc. No. 1.]
III. FACTUAL AND PROCEDURAL BACKGROUND
On March 16, 1987, a Los Angeles County Superior Court (Case No. A777193) committed Petitioner to a prison sentence of fifteen years to life for second degree murder (Cal. Penal Code § 187; Cal. Penal Code § 664). (Lodgment 1, Judgment.)
Prison Administrative Appeal Process
While in custody on July 7, 2003 at Calipatria State Prison, Petitioner was found guilty of possession of a controlled substance. (Lodgment 2, Ex. A.) Petitioner claims he appealed the July 7, 2003 decision on or about August 28, 2003, but the Calipatria State Prison Appeals Coordinator notified Petitioner on January 9, 2004, that the office did not receive the appeal. (Opp'n at 7, Petitioner's Appendices at 16.) Petitioner resubmitted his initial appeal on or about January 22, 2004, which was received by the Calipatria State Prison Appeals Coordinator. (Id.; Petitioner's Appendices at 15.) On or about February 11, 2004, Petitioner's appeal was returned to him with instructions to supplement the appeal with additional documents. (Id.; Petitioner's Appendices at 14.) Petitioner submitted the appeal with the requested documents, which was received by the Calipatria State Prison Appeals Coordinator on or about April 23, 2004 and assigned for a second-level response on May 25, 2004. (Id.; Petitioner's Appendices at 17, 51.) Petitioner's appeal was denied at the second level on or about October 29, 2004. (Id.; Petitioner's Appendices at 4.) Petitioner contends he received the second-level denial on or about November 5, 2004. (Opp'n at 7, Petitioner's Appendices at 4.)
After receiving the second-level denial, Petitioner contends he submitted an appeal to Third Level/Director's Level review on November 18, 2004. (Opp'n at 7.) On February 16, 2005, Petitioner received a letter dated February 9, 2005 from the Inmate Appeals Branch rejecting his third-level administrative appeal as incomplete and instructing Petitioner to resubmit the appeal with the required documents. (Lodgment 2, Ex. A; Opp'n at 7; Petitioner's Appendices at 3.) On March 6, 2005, Petitioner attempted to resend his third-level administrative appeal with the requested document, but it was returned to him, unmailed, on March 10, 2005 by the Lancaster Prison mail room for failure to qualify as legal mail. (Lodgment 2, Ex. A; Opp'n at 7-8; Petitioner's Appendices at pp.58-59.) Petitioner tried to resend his third-level appeal through the Lancaster Prison mail room on March 13, 2005, but it was again returned to him on or about March 20, 2005. (Opp'n at 8; Petitioner's Appendices at at 55-64.) Petitioner contends that from April to July of 2005, he wrote to an attorney for advice on how to proceed with the administrative remedies process and also asked family members to call the Inmate Appeals Branch in Sacramento for advice. (Opp'n at 8.) Neither of these approaches, however, were fruitful. Id. Petitioner states he abandoned his attempt to complete the third-level of review on July 30, 2005. Id.
On October 11, 2005, Petitioner filed a writ of habeas corpus in Imperial County Superior Court, challenging the July 7, 2003 guilty finding of possession of a controlled substance. (Lodgment 2.) The trial court rejected Petitioner's claim on May 23, 2006, and issued an order denying habeas relief on the grounds the there was more than "some evidence" on the record supporting the decision of the CDCR. (Lodgment 3, Imperial County Superior Court Petition.)
Petitioner then filed a second habeas petition with the Imperial County Superior Court on November 13, 2006. (Lodgement 4.) On January 17, 2007, this second petition was denied by the court and found to be successive. (Lodgments 5.) Petitioner then filed a writ of habeas corpus petition in the California Court of Appeal, Fourth Appellate District, Division 5 on February 16, 2007, challenging the CDCR's July 7, 2003 guilty finding. (Lodgment 6, California Court of Appeal Petition.) The Court of Appeals denied the Petition on May 22, 2007, agreeing with the lower court's basis for denial and further ruling that Petitioner did not exhaust his administrative remedies ...