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Hecker v. Hubbard

August 26, 2008

ROBERT ALAN HECKER, PETITIONER,
v.
SUE HUBBARD, WARDEN, ET AL., RESPONDENTS.



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

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, a state prisoner proceeding pro se and in forma pauperis, proceeds on an amended petition pursuant to 28 U.S.C. § 2254, filed on 1/03/08. Pending before the court is respondent's motion to dismiss, filed on 2/29/08, to which petitioner has filed an opposition and a supplemental opposition, after which respondent filed a reply. Petitioner's original petition, filed on 7/22/07,*fn1 was dismissed with leave to amend because it was unclear precisely what petitioner was challenging. See Order, filed on 12/14/07. In directing the respondent to file a response to the amended petition, the court noted that the amended filing did not provide significantly more clarity, but appeared to be a challenge to "what might be characterized as a quasi disciplinary action, resulting in the loss of 35 days of good time credits. He seeks restoration of his original December 22, 2009, release date by having his good time credits restored." Order, filed on 1/30/08, p. 1. Petitioner contends that he has been improperly denied 35 days of good time credit and that his Earliest Possible Release Date (EPRD) has been miscalculated. Petitioner states that he has been denied his right to appeal the action by California Department of Corrections and Rehabilitation (CDCR) in "stopping" his good time credits, failing to issue a psych chrono before placing him in administrative segregation, failing to discover his "severe hypothyroidism, and extending [his] release date by 35 days." Amended Petition (AP), p. 4.*fn2

Motion

Respondent contends that petitioner has filed the instant petition beyond the one-year AEDPA statute of limitations. Motion to Dismiss (MTD), pp. 1-6. As a separate ground for dismissal, respondent argues that petitioner failed to exhaust his state court remedies.

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.

Citing petitioner's movement history, respondent observes that petitioner was placed in administrative segregation at California State Prison-Wasco on 7/19/02. MTD, p. 1, Ex. 1).*fn3 He was released from ad seg on 9/19/02, and transferred to Folsom State Prison. Id. Thereafter, petitioner filed a number of administrative appeals regarding his claimed entitlement to earn half-time work credits for the 60 days he was in ad seg and his allegation that his EPRD had been miscalculated. MTD, p. 1, Ex. 2, state supreme court petition, Exs. D-E. Respondent observes that the appeals were rejected as untimely on 2/25/03, 4/03/03, 4/11/03, 5/13/03 and 11/24/03. Id. Petitioner does not refute this timeline but asserts that he was placed in ad seg for his safety after having been assaulted and that his good time credits were not stopped while he was at Wasco, but only after he had been transferred to Folsom. Opposition (Opp.), p. 1. Petitioner's contentions with respect to whether or not he was able to properly administratively exhaust his claims, and his allegations that the grievance procedure was not properly complied with by CDCR in the rejections of his appeals on the basis of untimeliness are not particularly germane in the context of this motion. Id.

By application of the mailbox rule to the filings below, petitioner filed a habeas petition in the Solano County Superior Court on 8/28/04, claiming that he had earned 35 days of good time credit and that his EPRD was miscalculated, which was summarily denied as untimely on 9/30/04, citing In re: Robbins, 18 Cal.4th 770, 780 (1998). MTD, p. 1, Ex. 2, state supreme court petition, Exs. K & L. Petitioner filed his claims related to the deprivation of credits and altered EPRD date to the California Court of Appeal on 12/11/04, and the petition was summarily denied on 12/17/04. MTD, p. 1, Ex. 2, state supreme court petition, Exs. O & Q. Petitioner filed the same claims in the state supreme court on 3/12/05, which petition was denied on 3/15/06, citing People v. Duvall, 9 Cal.4th 464, 474 (1995). MTD, p. 2, Ex. 2. As noted, the original petition in this court was filed on 7/22/07.

Under 28 U.S.C. § 2244(d)(1)(D), the applicable provision for petitions that challenge administrative decisions, "the limitation period in such cases begins to run on 'the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.'" Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004), citing Redd v. McGrath, 343 F.3d 1077, 1082 (9th Cir. 2003). The Shelby Court noted that in Redd, a challenge to a parole board's denial of an administrative appeal, it had found that the statute of limitations began running the day after petitioner received notice of the Board's ...


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