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Hecker v. Hubbard


August 26, 2008


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



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


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 decision. Likewise, the Ninth Circuit applies the same standard in the context of denials of administrative appeals of prison disciplinary actions. Id., at 1063-1065.

Respondent contends that the petitioner became aware of the factual basis of his claim when his appeal was rejected as of 2/25/03, thus contending that the AEDPA statute of limitations began to run on 2/26/03, expiring by 2/27/04, noting that petitioner did not make his superior court habeas filing until 8/28/04. MTD, p. 4. At the very latest, respondent contends that petitioner was certainly aware of the factual predicate of his claim by the time of the latest administrative appeal rejection, on 11/24/03. Id. If the first administrative appeal rejection triggered the running of the statute, by respondent's reasoning, then 518 days had elapsed before the 8/28/04 initial filing in the state courts. Id. Actually, by the court's calculation 549 days had elapsed during that period. In any case, if 2/25/03 were the triggering date, as respondent notes, the limitations period would have expired long before petitioner had even begun his state court habeas filings. While § 2244(d)(2) provides that the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation, section 2244(d)(2) can only pause a clock not yet fully run; it cannot "revive" the limitation period once it has run (i.e., restart the clock to zero). Thus, a state court habeas petition filed beyond the expiration of AEDPA's statute of limitations does not toll the limitation period under § 2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001). Petitioner states his hyperthyroidism, which he contends formed part of the factual predicate of his claim as an explanation for the underlying medical symptoms for which he was placed in ad seg, allegedly in violation of the Coleman class action,*fn4 was not diagnosed until 4/29/03. Opp., p. 2.*fn5

Rather than parse which administrative appeal would constitute the factual predicate for commencing the running of the statute, the court will afford petitioner the greatest amount of latitude and apply the more liberal construction, construing the triggering date as the latest of the administrative appeal rejections, that is the rejection dated 11/24/03, after which the statute would run beginning 11/25/03. Thereafter, some 273 days lapsed prior to the filing of the 8/28/04 state court petition. Under this scenario, as respondent apparently concedes, the limitations period would be tolled until the denial of the state supreme court petition on 3/15/06. MTD, p. 4. Thereafter, petitioner would have had 92 days remaining (365 days minus 273) to file the instant petition; as respondent points out, however, petitioner did not file the instant petition until 7/22/07, which by the court's calculation amounted to a period of an additional 494 days, rendering this petition, even in the broadest construction favoring petitioner, untimely by some 402 days, or more than a year, under the applicable statute.*fn6

Petitioner's argument in opposition (p. 3) that he brought a civil rights action in this court, CIV-S-06-1115 LKK DAD P, of which this court takes judicial notice,*fn7 with related allegations, that should apply to toll the AEDPA statute herein, is simply not availing, as respondent observes in the reply. Even had petitioner had a federal habeas petition, rather than an action under § 1983, pending in federal court during this period, it would not have tolled the statute. Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 2129 (2001). The only question that remains with regard to this statutorily untimely filing is whether or not petitioner can demonstrate that he is entitled to equitable tolling.

Equitable Tolling

"Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814; Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (a habeas petitioner bears the burden of proving that equitable tolling should apply to avoid dismissal of an untimely petition). "Equitable tolling is unavailable in most cases," and is only appropriate "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miranda, supra, at 1066 (internal quotations/citations omitted [emphasis added in Miranda]). A petitioner must reach a "very high" threshold "to trigger equitable tolling [under AEDPA]...lest the exceptions swallow the rule." Id.

In Calderon v. U.S. District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled on other grounds, Calderon v. U.S. District Court for Cent. Dist. of CA. (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), itself abrogated by Woodford v. Garceau, 538 U.S.202, 123 S.Ct. 1398 (2003), the Ninth Circuit found that the statute of limitations could be equitably tolled if extraordinary circumstances beyond a prisoner's control made it impossible to file the petition on time. "In addition, '[w]hen external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling may be appropriate.'" Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002), quoting Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).

Equitable tolling will not be available in most cases because tolling should only be granted if extraordinary circumstances beyond a prisoner's control make it impossible for him to file a petition on time. Beeler, 128 F.3d at 1288-89. As held in Beeler, "[w]e have no doubt that district judges will take seriously Congress's desire to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is surmounted." 128 F.3d at 1289. "Mere excusable neglect" is insufficient as an extraordinary circumstance. Miller v. New Jersey Dept. of Corrections, 145 F.3d 616, 619 (3rd Cir. 1998). Moreover, ignorance of the law does not constitute such extraordinary circumstances. See Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986).

In the Calderon (Beeler) case, the Court of Appeals held that the district court properly found equitable tolling to allow Beeler more time to file his petition. Beeler's lead counsel withdrew after accepting employment in another state, and much of the work he left behind was not usable by replacement counsel -- a turn of events over which the court found Beeler had no control. The Court of Appeals held that the district court properly found these were "extraordinary circumstances" sufficient to toll the statute of limitations.*fn8 The Ninth Circuit also found extraordinary circumstances in Calderon v. U.S. Dist. Ct. (Kelly), supra, 163 F.3d 530. The three reasons given which independently justified tolling were: a district court stay which prevented petitioner's counsel from filing a habeas petition, mental incompetency until a reasonable time after the court makes a competency determination, and the fact that petitioner did at one time have timely habeas proceedings pending which were mistakenly dismissed, not as a result of any doing by petitioner. Id. at 541-42. See also Corjasso v. Ayers, 278 F.3d 874 (9th Cir. 2002) (clerk's unjustified rejection of a petition justified partial tolling); Miles v. Prunty, 187 F.3d at 1107 (delay by prison in withdrawing funds from prisoner's trust account, preparing and mailing filing fee were circumstances beyond his control, qualifying him for equitable tolling).

Conversely, in U.S. v. Van Poyck, 980 F. Supp. 1108, 1110-11(C.D. Cal. 1997), the court found that a petitioner's circumstances were not extraordinary in the following circumstances: inability to obtain transcripts from court reporters, and general prison lockdowns preventing the prisoner's access to the library and a typewriter which were necessary to his motion. See also Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (reliance on incompetence of jailhouse lawyer not sufficient to justify cause to excuse procedural default); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (prisoner's unfamiliarity of law did not toll statute); Eisermann v. Penarosa, 33 F.Supp.2d 1269, 1273 (D.Haw. 1999) (lack of legal expertise does not qualify prisoner for equitable tolling); Henderson v. Johnson, 1 F.Supp.2d 650, 656 (N.D. Tex. 1998) (same); Fadayiro v. United States, 30 F.Supp.2d 772, 779-80 (D.N.J. 1998) (delay in receipt of transcripts does not justify equitable tolling).

Petitioner mentions the issue of equitable tolling in his opposition but does not develop it, seeking to raise a putative defense of "equitable estoppel," evidently based on the civil rights action he had pending in this court referenced above. Opp., p. 9. In a supplemental opposition, petitioner seeks to enlarge this argument, contending that the AEPDA statute should be tolled for the period of time that his § 1983 complaint, denominated CIV-S-06-1115 LKK DAD P, "sat dormant," prior to its dismissal. Supp. Opp., p. 1. This contention goes no distance to aid petitioner in meeting his burden to show entitlement to equitable relief.

The court's review of the record of the instant matter does demonstrate that petitioner has had mental health placement, he neither raises the issue in this context nor makes any showing that for the relevant period he might have suffered from a mental disability rendering him incompetent to file this petition timely. To the contrary, petitioner makes every effort to demonstrate that he was diligent in pursuing his claims, seeking to lay blame upon the courts for the untimeliness of his petition. By this showing, petitioner does not meet his burden to demonstrate that he is entitled to equitable tolling herein.


Because this court has found the instant petition untimely, the court need not reach the exhaustion question raised by respondent. For the same reason, untimeliness of the petition, the court denies as moot petitioner's unrelated motion to submit supplemental authority in support of his amended petition.

Accordingly, IT IS ORDERED that petitioner's 3/27/08 (#14) motion to file supplemental authority in support of his amended petition is denied as moot.

IT IS HEREBY RECOMMENDED that respondent's motion to dismiss, filed on 2/29/08 (# 12) be granted on the ground that this action is barred by the AEDPA statute of limitations, and this case be dismissed.

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 ten 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).

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