IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 12, 2008
MARK S. MUSZYNSKI, PETITIONER,
D. L. RUNNELS, ET AL., RESPONDENTS.
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding with an application for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is in the custody of the California Department of Corrections and Rehabilitation (CDCR) at Calipatria State Prison. Petitioner's claims are related to the fact that he refused to provide CDCR officials with DNA samples as required by California Penal Code § 296.
Analysis of Untimeliness Assertion
Respondents assert that petitioner's habeas petition is not timely. Title 28 U.S.C. § 2244(d)(1) provides as follows:
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.
With respect to prison disciplinary proceedings, such as those at issue here, the limitations period begins to run under § 2244(d)(1)(D) when the administrative process concerning the disciplinary proceedings is complete. Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004).
Petitioner challenges seven instances of his being found guilty of failing to comply with California Penal Code § 296, on multiple grounds. Pet. at 4.*fn1 Petitioner was charged with violation of § 296 for the seventh time on May 13, 2002. Pet. at 9:3-7; Answer, Ex. 1 at 36. On June 17, 2002, he was found guilty of this violation, and assessed a loss of good time credit. Answer, Ex. A at 38-39. Petitioner then had fifteen days to appeal this decision using the CDCR appeals process. 15 Cal Admin. Code § 3084.6(c). It does not appear that petitioner submitted an appeal within fifteen days and there does not appear to be any other basis to delay the commencement of the limitations period beyond fifteen days after the last time he was found guilty of violating Penal Code § 296.*fn2
Accordingly, the limitations period applicable to this action began to run, at the latest, on July 2, 2002. Because this action was not commenced until April 2005 and there does not appear to be any basis for tolling the limitations period between July 2, 2002 and July 1, 2003, this action is time-barred.*fn3
Motion to Shorten Time
Petitioner had asked the court to shorten the court's own time for resolving his petition. The court has addressed the petition as promptly as it is able given the other matters before it. With the issuance of these findings and recommendations, petitioner's request is moot.
Accordingly, IT IS HEREBY ORDERED that petitioner's motion to shorten time (docket no. 20) is denied.
IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within five days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).