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Toliver v. Hartely

August 28, 2008

ALFRED TOLIVER, PETITIONER,
v.
J. HARTELY, RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS THE INSTANT PETITION AS TIME-BARRED [Doc. 9]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

RELEVANT HISTORY

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR), following a conviction for murder in 1977, and sentence of seven years to life. In the instant petition, Petitioner does not challenge the constitutional validity of his conviction and/or sentence; rather, he challenges the rescission of his parole date and denial of his release on parole as an unconstitutional violation of due process and ex post facto laws.

As indicated by Respondent in his motion, Petitioner previously filed a federal petition for writ of habeas corpus in the Sacramento Division of this Court on July 18, 2005, in case number 2:05-cv-01444-MCE-DAD (HC), raising the same challenges as raised in the instant petition. That action was dismissed, without prejudice, on March 20, 2008, for failure to exhaust the state court remedies. (See 2:05-cv-01444-MCE-DAD (HC), Court Docs. 18, 19.) There, the Findings and Recommendations, adopted in full on March 20, 2008, set forth the claims and procedural history stating:

Petitioner alleges that in January 1977 he was convicted and sentenced to seven years to life in prison for murder under California's old indeterminate sentencing law. (Am. Pet. at 2.) He claims that on November 7, 1985, after California enacted the determinate sentencing law, he received an established parole date of June 2, 1994 from the Board of Prison Terms. Petitioner alleges that his release date was rescinded in 1986, evidently due to a prison rule violation conviction he suffered. (Id. at 6; Resp't's Mot. to Dismiss, Ex. 2.) Petitioner now contends that he has been illegally confined since 1994.

On August 15, 2003, petitioner filed a petition for a writ of habeas corpus in the Los Angeles Superior Court in which he claimed that his release date had never been "refixed" and that he should have been released, presumably on parole, in 1997. (Resp't's Mot. to Dismiss, Ex. 1.) On October 14, 2003, the Superior Court denied the petition on the merits, holding that the Board did not abuse its discretion by failing to find petitioner suitable for parole. (Id., at Ex. 2.) On January 9, 2004, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. (Id., Ex. 3.) On May 11, 2004, the Court of Appeal summarily denied his petition. (Id.) On June 24, 2004, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. (Id.) On June 22, 2005, the California Supreme Court denied the petition, citing the decisions in People v. Duvall and In re Robbins. (Id., Ex. 10.)

Petitioner filed his original petition in this court on July 18, 2005 and his amended petition on April 16, 2007.

(See 1:05-cv-1444-MCE-DAD (HC), Court Doc. 16, Exhibit B, to Motion.)*fn1

On August 10, 2006, Petitioner filed a state petition for writ of habeas corpus in the Superior Court of California, County of Los Angeles, which was denied in a reasoned decision as untimely on August 20, 2007. (Exhibit C, to Motion.)

On September 10, 2007, Petitioner filed a state petition for writ of habeas corpus in the California Court of Appeal, Second Appellate District, Division Five, which denied the petition on September 17, 2007, in part, as procedurally defaulted and, alternatively on the merits. (Exhibit D, to Motion.)

On November 13, 2007, Petitioner filed a state petition for writ of habeas corpus in the California Supreme Court, which was denied on April, 30, 2008. (Exhibits E & F, to Motion.)

Petitioner filed the instant federal petition for writ of habeas corpus on May 14, 2008. (Court Doc. 1.) Respondent filed the instant motion to dismiss on July 29, 2008, and Petitioner filed an opposition on August 14, 2008. (Court Docs. 9, 10.)

DISCUSSION

A. Procedural Grounds for Motion ...


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