The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
Shawn Hawk, a state prisoner, filed an application for habeas corpus relief pursuant to § 2254(a) on February 10, 2006. Petitioner is an inmate currently incarcerated at Folsom State Prison, serving an indeterminate state prison sentence of twenty-five years to life. Petitioner seeks reversal of the March 31, 2003 disciplinary conviction for possession of a dangerous weapon on the ground that he is actually innocent of the violation.
Respondent, Matthew C. Kramer, the Warden of Folsom State Prison, filed a motion to dismiss Petitioner's application on January 25, 2008. Respondent maintains that the petition should be dismissed without consideration of the merits because it was filed beyond the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). In his response in opposition to the motion to dismiss, Petitioner maintains that his petition was timely because (1) the statute of limitations did not begin to run until April 2004 and, (2) the one-year statute of limitations was statutorily tolled by properly filed state post-conviction petitions. The motion to dismiss will be granted because Petitioner failed to demonstrate that he filed his petition within the one-year statute of limitations.
On February 22, 2003, while incarcerated at High Desert State Prison, a weapon was found in Mr. Hawk's cell among his personal belongings. Mr. Hawk was issued a CDC 115, Rule Violation Report charging him with possession of a dangerous weapon. On March 31, 2003, Petitioner was found guilty of possession of a dangerous weapon at a disciplinary hearing, placed in the Security Housing Unit and sanctioned 360 days loss of earned credit. Mr. Hawk filed an appeal for Second Level of Review. On July 23, 2003, Chief Deputy Warden T. Felker denied Mr. Hawk's appeal on the ground that the preponderance of the evidence supported the finding of guilt.
Any request for a Director's Level Review must be made within 15 working days of the issuance of the Second Level Review decision. CCR 3084.6(c). Mr. Hawk filed a request for a Director's Level Review on August 28, 2003. He contends that he did not receive the denial of his appeal until August 13, 2003 and that his request was therefore timely. However, that contention is unsupported by the record. The CDC 602 Inmate Appeal Form, Section G, indicates that the denial was returned to Mr. Hawk on July 24, 2003. (Doc. No. 1, Exh. A).
On September 23, 2003, the Chief of the Inmate Appeals Branch issued a Director's Level Appeal decision rejecting Mr. Hawk's appeal as untimely in accordance with CCR 3084.6(c). Id. The letter rejecting Mr. Hawk's appeal referred him to his "assigned counselor, the Appeals Coordinator, or [his] Parole Agent" who could answer any questions regarding the appeals process. Id. Mr. Hawk spent the next several months writing letters to the Chief of Inmate Appeals, (on September 29, 2003, October 15, 2003, December 10, 2003, and April 15, 2004) seeking reconsideration of the Director's Level dismissal of his appeal. (Doc. No. 1, Exh. B). Mr. Hawk did not file his petition for a writ of habeas corpus in the state court until August 4, 2004, nearly ten months after his administrative appeal was rejected as time-barred.
Petitioner filed a petition for a writ of habeas corpus in the Solano County Superior Court on August 4, 2004.*fn2 The petition was transferred to Lassen County Superior Court and was denied by that court, on May 18, 2005, on the ground that there was evidence supporting the disciplinary determination.
On June 7, 2005, Petitioner filed a new petition for habeas corpus relief in the California Court of Appeal, Third Appellate District. The petition was denied without comment on June 16, 2005.
On July19, 2005, Petitioner filed another petition for habeas corpus relief in the California Supreme Court. The California Supreme Court ...