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Morley v. Carey

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 8, 2008

FRED JAMES MORLEY, PETITIONER,
v.
TOM L. CAREY, RESPONDENT.

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He challenges 2004 prison disciplinary proceedings that resulted in the loss of good conduct sentence credit. Respondent has filed a motion to dismiss arguing that this action is time-barred. Petitioner has filed an opposition.*fn1

The Antiterrorism and Effective Death Penalty Act (AEDPA) 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.

28 U.S.C. § 2244(d)(1).

With respect to prison disciplinary proceedings, the limitations period generally begins 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). In this case, the administrative process was complete on December 3, 2004. Mot. Ex. 2. The limitations period began to run the next day with respect to all of petitioner's claims cognizable in this action.*fn2

It is not disputed that the limitations period ran between December 4, 2004 and January 13, 2005 and then again between June 15, 2006 and May 20, 2007, the latter being the day petitioner signed his federal habeas petition.*fn3 The court finds no basis in the record to toll the limitations period during those periods of time, which equal a total of 379 days. Because this action was not filed until May 20, 2007 at the earliest, this action is time-barred and must be dismissed.

In accordance with the above, IT IS HEREBY RECOMMENDED that:

1. Respondent's motion to dismiss (#8) be granted; and

2. This action be dismissed as time-barred.

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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