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Yonai v. Walker

July 28, 2008

JASON DAVID YONAI, PETITIONER,
v.
WALKER, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 5, 2005, petitioner alleges he was "charged with" (or received a serious rules violation report RVR for) aggravated battery on a peace officer by gassing,*fn1 at Salinas Valley State Prison (SVSP), and he herein challenges the decision at the subsequent 2005 RVR-115 prison disciplinary hearing wherein he was found guilty of a Division B offense, battery on a peace officer by gassing, for which he was assessed a 150-day time credit loss. Petition, pp. 5, 28. Petitioner maintains that he should have been "charged with" the lesser offense of "throwing a caustic substance on a non-inmate." Id. at 5. He contends that he was deprived of his Fourteenth Amendment due process rights, as well as his "civil rights" and "Miranda rights" in being "illegally held in the Ad-Seg unit hole from 5-05-05 to around 6-08-06" and assessed the time credit loss and he seeks restoration of both the time served in Ad Seg and the 150-day credit loss. Id.

Respondent filed a motion to dismiss the instant petition as barred by the AEDPA statute of limitations, on January 16, 2008. Petitioner filed an opposition on February 22, 2008, and the court permitted the filing of a supplemental opposition, which was filed on April 25, 2008. See Order, filed on March 25, 2008 (# 12).

Motion to Dismiss

The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 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.

Respondent points to the copy of the administrative appeal filed by petitioner challenging the RVR 115 guilty finding on the basis that the fluid that was involved in the incident was water not a bodily fluid. Motion to Dismiss (MTD), p. 2.*fn2 That appeal was dated by petitioner as filed on 5-10-07. Petition Attachment (Ptn. Att.), p. 19. Also attached, as respondent observes, is a copy of the inmate/parolee appeal screening form, dated 5-29-07, wherein it is indicated that the appeal was rejected as untimely, as having been submitted beyond the 15-day time limit without a "credible explanation" as to why it could not have been submitted timely. MTD, p. 2; Ptn. Att., p. 9. Respondent also notes that petitioner filed a copy of his California Supreme Court petition, stamped as filed on May 11 2006,*fn3 as well as a copy of summary denial of the petition, filed on May 24, 2006. MTD, p. 2; Ptn. Att., pp. 11-26. Because petitioner did not file his federal petition until September 6, 2007, which he signed on September 2, 2007, respondent maintains the instant petition was filed beyond the one-year AEDPA statute of limitations. MTD, p 2. Pursuant to Houston v. Lack, 487 U.S. 266, 275-76, 108 S.Ct. 2379, 2385 (1988), a pro se prisoner filing is dated from the date prisoner delivers it to prison authorities, and the court will afford petitioner the benefit of application of the mailbox rule, and will deem the instant federal petition as filed on the date he signed it, September 2, 2007.

Petitioner presents a garbled opposition that is hard to untangle. In his opposition and supplemental opposition, petitioner identifies the date of the relevant prison disciplinary hearing as 12/31/05. Opp., p. 9, Supp. Opp., p. 2. He references a federal habeas petition in the Northern District, Case No. 06-5217 PJH, filed prior to this case, stating that he had to file the instant petition because the judge had failed to "answer my case." Opp., pp. 2-3. Petitioner maintains that he challenged the same disciplinary ruling that he challenges herein in the earlier case but that the respondent in that case failed to address that in the answer. Id. at 2. Of course, that implicates a separate ground for dismissal of this petition as successive. Petitioner asks that the court review the Northern District case, and the undersigned does take judicial notice*fn4 of Yonai v. Evans, C 06-5217 PJH (PR). The answer in 06-5217 admits that the May 24, 2006, state supreme court petition exhausted the state court remedies with respect to claims stemming from a 2005 disciplinary hearing (Answer, 06-5217, p. 3), evidently the same petition denial which petitioner submits with his petition herein and on which respondent in the instant case bases the pending motion. However, the answer in 06-5217 is focused on a different disciplinary conviction, arising from a 2005 classification hearing, where petitioner was found guilty of threatening staff and allegedly lost 970 days of good time credit. Id. at 1. According to respondent therein, petitioner received a Rules Violation Report on Jan. 27, 2005 for threatening staff. Id. at 8. It may be that petitioner believed he was challenging two prison disciplinary hearings in 2005 in the Northern District petition, but respondent addressed only one, the Jan. 27, 2005 RVR, in the answer. In reviewing documents lodged with the answer in 06-5217, the undersigned observes that petitioner raises the May 5, 2005, RVR-115, addressed in the instant petition, in a habeas petition, filed in the Monterey County Superior Court, dated as signed on May 2, 2006. Exhibit F to Answer in 06-5217, p. 12. Also filed in that case is the same state supreme court habeas petition, Case No. S143355, also dated as signed on May 2, 2006, filed in the state supreme court as petitioner filed with the petition herein, as well as the same summary state supreme court denial petitioner attached to his case herein, Case No. S143355. Exhs. H & I to Answer in 06-5217. This court's review reveals that petitioner raises both the January 27, 2005 and the May 5, 2005 prison disciplinaries (the latter one at issue herein) in the same state supreme court petition.

In that case, petitioner filed a motion, on Feb. 22, 2008, complaining that he "never got a full answer for my case no. C 06-5217 claim of due process violations for my R.V.R. 115 dated 5-5-05 for the "B" offense of battery on a p.o. by gassing....," the precise prison disciplinary challenged herein. However, in an order, filed by District Judge Phyllis J. Hamilton on June ...


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