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Arceo v. Tilton

December 12, 2008

ANTHONY ARCEO, PETITIONER,
v.
JAMES E. TILTON, RESPONDENT.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER DENYING APPLICATION FOR CERTIFICATE OF APPEALABILITY (DOC NO. 18.)

On September 14, 2007, Petitioner Anthony Arceo filed a Petition for a Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254 in the Eastern District of California. The Petition challenges the California Department of Corrections' ("CDC") recision of 120 days of good-time prison credits.

In November 2007, the Petition was transferred to this district. On June 5, 2008, Magistrate Judge Barbara L. Major issued her Report recommending that the Petition be denied. (Doc. No. 10.) Petitioner objected to the Report. (Doc. No. 14.) On October 24, 2008, the Court denied the Petition. (Doc. No. 15.)

Now pending before the Court is Petitioner's Application for Certificate of Appealability ("COA"). (Doc. No. 18.) The Court decides the matter on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1.(d.1). For the reasons discussed below, the Court DENIES Petitioner's COA.

I. BACKGROUND

In January 1994, a jury convicted Petitioner of one count of kidnapping with intent to commit rape, one count of forcible oral copulation, and two counts of rape by a foreign object, in violation of California Penal Code §§ 207(a), 208(d), 288(c), and 289(a). (Report at 2.) For these crimes, and including enhancements based on previous felonies, Petitioner was sentenced to thirty-one years imprisonment. (Id. at 2.)

In June 1996, a CDC disciplinary board found Petitioner guilty of possession of inmate-manufactured alcohol in violation of California Code of Regulations § 3016. (Report at 2.) Following a disciplinary hearing, he was assessed a 120-day forfeiture of good-time credits, among other penalties. (Id. at 2.) In November 1997, Petitioner was again convicted of possession of inmate-manufactured alcohol and forfeited another 120 days of good-time credits. (Id. at 2.) During 2005 and 2006, Petitioner filed administrative appeals challenging the two 120-day credit losses. (Id. at 3.) The second-level appellate council denied Petitioner's appeals as time-barred, finding Petitioner failed to justify the almost decade-long delay in filing. (Id. at 3.)

In 2006, Petitioner filed a habeas petition in Los Angeles Superior Court contesting the credit losses. (Report at 3.) The Superior Court denied the petition on both substantive and procedural grounds. (Id. at 3.) Petitioner filed a habeas petition in the California Court of Appeal, which was denied due to improper venue. (Id. at 3.) The Court of Appeal instructed the Petitioner that he should file his petition in Kern County based on the location of Petitioner's prison. (Id. at 3.)

In January 2007, Petitioner filed his petition in Kern County Superior Court. (Report at 3.) The court denied his claims on substantive and procedural grounds. (Id. at 3.) Petitioner then re-filed in the California Court of Appeal, which issued a summary denial on February 22, 2007. (Id. at 3.) On April 9, 2007 Petitioner filed his petition in the California Supreme Court, which found the petition to be untimely and returned it unfiled. (Id. at 3.) The supreme court lost jurisdiction on March 24, 2007 under Cal. Rule of Court 8.500(e)'s applicable thirty-day filing deadline. (Id. at 3.)

On September 14, 2007, Petitioner filed the Petition challenging the CDC's recision of 120 days of good-time prison credits. On October 24, 2008, this Court denied the Petition. (Doc. No. 15.) Petitioner's COA followed.

II. LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a state prisoner may not appeal the denial of a section 2254 habeas petition unless he obtains a COA from a district or circuit judge. 28 U.S.C. § 2253 (c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts retain authority to issue COAs under the AEDPA).

In deciding whether to grant a COA, a court must either indicate the specific issues supporting a certificate or state reasons why a certificate is not warranted. Asrar, 116 F.3d at 1270. A court may issue a COA only if the applicant has made a "substantial showing" of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court has elaborated on the meaning of this requirement:

Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy section 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's ...


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