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Ramirez-Salgado v. Scribner

United States District Court, Southern District of California


January 22, 2009

JOSE RAMIREZ-SALGADO, PETITIONER,
v.
LARRY E. SCRIBNER, WARDEN, RESPONDENT

The opinion of the court was delivered by: William McCURINE, Jr., United States Magistrate Judge.

ORDER

HAYES, District Judge.

The matter before the Court is the Report and Recommendation (Doc. 12) of Magistrate Judge William McCurine recommending that the Court deny the motion to dismiss the petition filed by Respondent.

On March 25, 2008, Petitioner Jose Ramirez-Salgado filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) On April 3, 2008, the Court dismissed the Petition without prejudice and with leave to amend. (Doc. 2.) On May 2, 2008, Petitioner filed his first amended petition naming Larry E. Scribner as the respondent. (Doc. 4.) On August 29, 2008, Respondent filed a motion to dismiss (Doc. 8), asserting that the Petition is barred by the applicable one year statute of limitations set by 28 U.S.C. § 2244(d)(1). Petitioner filed a timely opposition to Respondent's motion to dismiss (Doc. 10), asserting that his petition is not time barred because he is entitled to statutory and equitable tolling of the one year statute of limitations. On December 5, 2008, Magistrate Judge William McCurine issued the Report and Recommendation. (Doc. 12.) Neither party filed an objection to the Report and Recommendation.

RULING OF THE COURT

The duties of the district court in connection with a Magistrate Judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Where the parties object to a Report and Recommendation, "[a] judge of the [district] court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C.A. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). When no objections are filed, the district court need not review de novo the Report and Recommendation. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en banc). A district court may nevertheless, "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); Wilkins v. Ramirez, 455 F.Supp.2d 1080, 1088 (S.D.Cal.2006); Or. Natural Desert Ass'n v. Rasmussen, 451 F.Supp.2d. 1202, 1205 (D.Or.2006).

Neither party objected to the Magistrate Judge's Report and Recommendation in this case, and this Court has reviewed the Report and Recommendation in its entirety. The Court concludes that the Magistrate Judge correctly determined that "Petitioner has filed his petition in federal court three-hundred seven (307) days into the applicable one (1) year, threehundred sixty-five (365) days, statute of limitations." (Doc. 12 at 10.)

IT IS HEREBY ORDERED that (1) the Report and Recommendation (Doc. 12) is adopted in its entirety, and (2) the motion to dismiss the petition (Doc. 8) filed by Respondent Larry Scribner is DENIED. Respondents shall file an answer with the Court and serve a copy on all parties within 30 days of the date of this order. Petitioner shall file his traverse with the Court and serve a copy on all parties no later than 30 days after the filing of Respondent's answer.

REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION TO DISMISS PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. 2254

I. Introduction

Petitioner Jose Ramirez-Salgado, a state inmate proceeding pro se, challenges the California Board of Parole Hearings decision to deny Petitioner parole with a federal Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. Respondent has submitted a Motion to Dismiss the Petition ("Mot. to Dismiss"; Doc. No. 8) and moves this court to dismiss the petition as time barred under 28 U.S .C. § 2244(d)(1). Petitioner has submitted an Opposition to Respondent's Motion to Dismiss ("Opp. to Mot. to Dismiss"; Doc. 10).

This Report and Recommendation is submitted to United States District Judge William Q. Hayes, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.

Based upon the documents presently before the Court and for the reasons stated below, the Court RECOMMENDS that Respondent's Motion to Dismiss be DENIED.

II. Statement of Facts

Petitioner is in custody at the Calipatria State Prison serving a fifteen year to life sentence, resulting from a guilty plea, for second degree murder, plus a four year enhancement for the use of a firearm.

On November 1, 2005, the California Board of Parole issued their decision concluding Petitioner was ineligible for Parole. (Lodgment 1).

On February 5, 2006, Petitioner filed *fn1 a Petition for Writ of Habeas Corpus with the Superior Court of California for San Diego County. (Lodgment 2).

On March 1, 2006, the decision of the California Board of Parol denying Petitioner parole became effective under Cal. Pen.Code § 3041(b). (Lodgment 1 at 4).

On April 11, 2006, sixty-six (66) days after the date of filing, the Superior Court of California issued its decision denying Petitioner habeas relief. (Lodgment 3).

On June 15, 2006, sixty-four (64) days later,*fn2 Petitioner filed a Petition for Writ of Habeas Corpus with the California Court of Appeal, Fourth District. (Lodgment 4).

On September 15, 2006, ninety-three (93) days after the date of filing, the California Court of Appeal issued its decision denying Petitioner Habeas relief. (Lodgment 5).

On November 16, 2006, *fn3 sixty-one (61) days after later, *fn4 Petitioner filed a Petition for Writ of Habeas Corpus with the Supreme Court of California. (Lodgment 6).

On May 23, 2007, one hundred eighty-nine (189) days after the date of filing, the Supreme Court of California issued its decision denying Petitioner Habeas relief. (Lodgment 7).

On March 25, 2008, *fn5 three hundred six (306) days later, *fn6 Petitioner filed his first Petition for Writ of Habeas Corpus with the United States District Court for the Southern District of California. (Lodgment 9).

On April 3, 2008, the United States District Court for the Southern District of California dismissed the petition without prejudice and with leave to amend. (Lodgment 10).

On April 25, 2008, Petitioner filed his Amended Petition for Writ of Habeas Corpus with the United States District Court for the Southern District of California. (Lodgment 8).

On August 29, 2008, Respondent filed a Motion to Dismiss with a Memorandum of Points and Authorities in Support Thereof (Mot. to Dismiss) and a Notice of Lodgments in Support Thereof (Lodgment) alleging Petitioner's claims are barred under the one (1) year statute of limitations set by 28 U.S.C. § 2244(d)(1).

On September 28, 2008, Petitioner filed an Opposition to Respondent's Motion to Dismiss (Opp. to Mot. to Dismiss) alleging the petition is not untimely since he is entitled to tolling of the period beginning with the date of filing his initial petition in state court and ending on the date of the state supreme court's denial of relief.

III. Summary of Claims

In his Motion to Dismiss, filed August 29, 2008, Respondent asserts the Petition for Writ of Habeas Corpus is barred by the applicable one (1) year statute of limitations set in 28 U.S.C. § 2244(d)(1). (Mot. to Dismiss). Respondent concedes Petitioner is entitled to statutory tolling during the periods in which review was pending, but Respondent asserts Petitioner is not entitled to tolling for the periods following the decision of one court up to the filing of a subsequent petition in the next court as the delay was unreasonable. (Mot. to Dismiss at 4-7). Respondent's calculation of the total time begins the day after the decision of parole board became final (March 2, 2006) to the date of filing of the federal habeas petition (April 25, 2008). (Mot. to Dismiss at 7). Under Respondent's calculations, this period totals seven hundred eighty-six (786) days. (Mot. to Dismiss at 7). Of that time period, Respondent concedes Petitioner is entitled to tolling of three hundred forty-eight (348) days for periods during which Petitioner's various petitions for review were pending decision in the courts.*fn7 (Mot. to Dismiss at 4-7).

Further, Respondent argues the Amended Petition does not relate back to the filing date of the original petition in federal court since the original petition was dismissed and is therefore not a properly filed application. (Mot. to Dismiss at 6). Consequently, Respondent contends the relevant date for determining whether Petitioner timely filed his petition in federal court is the filing date of the Amended Petition. (Mot. to Dismiss at 6). Under Respondent's calculations, the Petition for Writ of Habeas Corpus is seventy-three (73) days over the statutorily mandated limitations period of three hundred sixty-five (365) days. (Mot. to Dismiss at 7).

In his Opposition to Respondent's Motion to Dismiss, Petitioner asserts that the Petition for Writ of Habeas Corpus is not time-barred since he is entitled to tolling for the entire period beginning with the filing of his first petition with the state superior court and ending with the state supreme court's denial. (Opp. to Mot. to Dismiss). Specifically, Petitioner alleges each successive petition was timely filed under California state law, thereby entitling him to the benefit of tolling those gap periods. (Opp. to Mot. to Dismiss at 5-6). Under California's "reasonable time" standard, Petitioner alleges his successive applications were timely filed since prison lock-down periods denied him access to the law library. (Opp. to Mot. to Dismiss at 6). Petitioner asserts that lock-down periods from November 1, 2005 to November 18, 2005, March 21, 2006 to May 15, 2006, and October 3, 2006 to October 19, 2006, prevented him from filing his various applications for review earlier. Therefore, each application was timely filed. (Opp. to Mot. to Dismiss at 6, Exh. 3). As such, Petitioner asserts his Petition for Writ of Habeas Corpus has been timely filed.*fn8 (Opp. to Mot. to Dismiss).

IV. Standard of Review

The applicable statute of limitations is set forth in 28 U.S.C. § 2244(d) as follows:

(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 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.

(2) 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 under this subsection.

Moreover, when the decision of an administrative body, such as a parole board, forms the basis for a petition for a writ of habeas corpus, the date of that decision will form the factual predicate of the claim such that the one (1) year statute of limitations begins to run the day after that decision. 28 U.S.C. § 2244(d)(1)(D); Redd v. McGrath, 343 F.3d 1077, 1082 (9th Cir.2003). However, "[t]his limitations period is tolled while a state prisoner seeks post conviction relief in state court." Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 1082, 166 L.Ed.2d 924 (2007).

For purposes of statutory tolling under 28 U.S.C. § 2244(d)(2), a claim is considered "pending" from the period in which the first petition for habeas relief is filed in the lower state court and ending with the decision rendered by the state supreme court. Carey v. Saffold, 536 U.S. 214, 217-21, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). Generally, this period will include those periods between the decision of one court and the filing of the petition at the next higher court as long as the subsequent petition is timely filed. Id. Under California standards, the timeliness of the filing of a subsequent petition will depend on whether that petition was filed within a reasonable time following the decision of the prior court. Id . at 221; Evans v. Chavis, 546 U.S. 189, 190, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006). Those delays which are unexplained and unjustified will be held to be unreasonable. Saffold, 536 U.S. at 222-23; see also Chavis, 546 U.S. at 199-201 (holding that, out of a three year and one month period between state appellate court decision and state supreme court filing, an unexplained delay of six months where petitioner admitted to having normal access to law library was unreasonable); Culver v. Dir. of Corr., 450 F.Supp.2d 1135, 1140-1141 (C.D.Cal.2006) (finding unexplained delays of seventy-one and ninety-seven days between petitions was unreasonable, thereby precluding statutory tolling). In the absence of a clear ruling by the California Supreme Court as to what constitutes an unreasonable delay, the federal courts must determine, on a case-by-case basis, whether the subject delay would be considered unreasonable by California Courts. Chavis, 546 U.S. at 198.

Additionally, the statute of limitations may be equitably tolled. Calderon v. United States Dist. Court, 128 F.3d 1283, 1288 (9th Cir.1997). In order to benefit from equitable tolling, the party seeking it must demonstrate that he has been pursuing his rights diligently and some extraordinary circumstance has interfered with his ability to timely file. Pace v. DiGuiliemo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). This determination will be highly fact-dependent. Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000). Extraordinary circumstances beyond a prisoner's control must exist for equitable tolling to be considered. Malcom v. Payne, 281 F.3d 951, 962 (9th Cir.2002).

VI. Discussion

A. Statute of limitations begins to run March 2, 2006

The decision of the Parole Board to deny Petitioner parole was issued on November 1, 2005. (Lodgment 1). The decision became final on March 1, 2006. (Lodgment 1 at 30 *fn9 ). Some time after December 4, 2005 (the date the Parole Board Hearing was transcribed (Lodgment 1 at 31)), Petitioner received a copy of the transcript.*fn10 The copy which was provided to Petitioner read: "PAROLE DENIED FIVE YEARS. THIS DECISION WILL BE FINAL ON: Mar. 1, 2006. YOU WILL BE PROMPTLY NOTIFIED IF, PRIOR TO THAT DATE, THE DECISION IS MODIFIED." (Lodgment 1 at 30). Consequently, Petitioner reasonably relied on this document to determine that the Parole Board's decision was not final until March 1, 2006. The Court finds the statute of limitations in this matter began to run on March 2, 2006 and expired March 2, 2007, absent any applicable statutory or equitable tolling.

B. Petitioner's state court collateral review

1) State superior court review

Notwithstanding the Court's determination that the statute of limitations did not begin to run until March 2, 2006, on February 5, 2006, twenty-five (25) days before finalization of the Parole Board's decision, Petitioner had already filed a petition for habeas corpus in state superior court. (Lodgment 2). Therefore, Petitioner is entitled to statutory tolling until the decision of the state superior court was rendered on April 11, 2006. (Lodgment 3). Although the total time spent in state superior court was sixty-six (66) days, the Court finds statutory tolling applies to forty-one (41) days because the statute of limitations did not begin to accrue until those last forty-one (41) days of the state superior court proceedings. 28 U.S.C. § 2244(d)(2).

2) State appellate court review

On June 15, 2006, sixty-four (64) days later, Petitioner filed a petition for habeas corpus in state appellate court. (Lodgment 4). The Court is satisfied the delay was reasonable, in accordance with Chavis. 546 U.S. at 189 (holding in the absence of a clear ruling by the California Supreme Court defining "reasonable time" in the context of a state habeas petition filing, the federal courts must consider on a case by case basis how California courts would rule on the issue of timeliness for purposes of statute of limitations analysis for federal habeas petitions). Specifically, Petitioner is entitled to 30 days of statutory tolling and 34 days of equitable tolling of this interstitial period.

Petitioner argues that lock-down periods effectively denied him access to the law library from March 21, 2006 to May 15, 2006, a total of fifty-five (55) days. (Opp. to Mot. to Dismiss at 6, Exh. 3). As noted above, the superior court issued it's ruling on Petitioner's petition on April 11, 2006. Hence, the total amount of time Petitioner was unable to prepare for the next level of review due to the lockdown was thirty-four days. Further, as the lockdown was beyond Petitioner's control, the Court finds those thirty-four days subject to equitable tolling. The remaining thirty days of this interstitial period is subject to statutory tolling. "[T]he AEDPA statute of limitations is tolled for `all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.' " Nino v. Galaza, 183 F.3d 1003,1006 (9th Cir.1999). Accordingly, the Court finds, the thirty days used by Petitioner that were not eligible for equitable tolling was not unreasonable. Petitioner's appellate court petition was timely filed.

Furthermore, Petitioner is entitled to statutory tolling for the period in which his petition was being considered by the state appellate court. 28 U.S.C. § 2244(d)(2). The petition was filed on June 15, 2006 and the decision was rendered on September 15, 2006. (Lodgment 4 & 5). Therefore, Petitioner is entitled to statutory tolling for ninety-three (93) days.

c) State supreme court review

On November 16, 2006, sixty-one (61) days after the state appellate court ruling, Petitioner filed a petition for habeas corpus in state supreme court. (Lodgment 6). Petitioner is entitled to tolling this sixty-one day period. The court is satisfied the delay was reasonable in accordance with Chavis. 546 U.S. at 189. Specifically, Petitioner is entitled to 16 days of equitable tolling plus 45 days of statutory tolling during this interstitial period.

In his Opposition, Petitioner notes additional lock-down periods effectively denied him access to the law library from October 3, 2006 to October 19, 2006, a total of 16 days. (Opp. to Mot. to Dismiss at 6, Exh. 3). Because the lock-down was beyond Petitioner's control, the Court finds those 16 days subject to equitable tolling. The remaining 45 days of this interstitial period is subject to statutory tolling. As noted above, the statute of limitations is tolled if a state prisoner is properly pursuing his state court remedies. See Nino v. Galaza, 183 F.3d at 1006. Accordingly, the Court finds the forty-five days not subject to equitable tolling was not unreasonable and Petitioner's state supreme court petition was timely filed.

Further, for the period in which his petition was being considered by the state supreme court Petitioner is entitled to statutory tolling. 28 U.S.C. § 2244(d)(2). The petition was filed on November 16, 2006 and a decision was rendered on May 23, 2007. (Lodgment 6 & 7). Therefore, Petitioner is entitled to statutory tolling for this one-hundred eighty-nine (189) day period.

C. Filing in federal court

On March 25, 2008, three-hundred seven (307) days later, Petitioner filed his original petition for writ of habeas corpus in federal district court. (Lodgment 9). On April 3, 2008, this court dismissed the petition without prejudice and with leave to amend because the petition failed to name the proper respondent and failed to allege exhaustion of state court remedies. (Lodgment 10). On April 25, 2008, Petitioner filed his Amended Petition for Writ of Habeas Corpus with this court. (Lodgment 8).

For statute of limitations purposes, an amended pleading will relate back to the filing date of the original pleading if "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed. R. Civ. P. Rule 15(c) (2). When the failure to name the proper respondent is the basis for the dismissal of a petition for writ of habeas corpus, the Ninth Circuit has held that an amendment to cure the defect does not deprive the court of proper subject matter jurisdiction over the claim, but only personal jurisdiction over the respondent. Stanley v. Supreme Court of California, 21 F.3d 359, 359 (9th Cir.1994). Further, when the district court either expressly or impliedly retains jurisdiction over a dismissed claim, then the subsequent amendment will relate back to the original pleading's filing date. See Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir.1999). Therefore, since the original habeas petition was dismissed for failure to name the proper respondent, and the dismissal was without prejudice and with leave to amend, the amended petition will relate back to the filing date of the original federal petition-March 25, 2008.

D. Conclusion

A total of seven-hundred fifty-five (755) days had passed from the date following the finalization of the Parole Board's decision (which began the statute of limitations in the absence of any tolling) to the filing of Petitioner's first Petition for Writ of Habeas Corpus in federal district court. Of those seven-hundred fifty-five (755) days and for the reasons stated herein, Petitioner is entitled to a combination of statutory and equitable tolling of the full period from the filing of his first petition in state superior court to the issuance of the last decision by the state supreme court; a period totaling four-hundred forty-eight (448) days.*fn11 Consequently, Petitioner has filed his petition in federal court three-hundred seven (307) days into the applicable one (1) year, three-hundred sixty-five (365) days, statute of limitations. Accordingly, it is recommended that Respondent's motion to dismiss based on the statute of limitations be DENIED.

VII. Recommendations

For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order: DENYING Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus.

IT IS FURTHER ORDERED that no later than January 5, 2009, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

IT IS FURTHER RECOMMENDED that Respondents be ordered to file an Answer with the Court and serve a copy on all parties thirty days after Judge Hayes' ruling.

IT IS FURTHER RECOMMENDED that any Traverse be filed with the Court and served on all parties no later than thirty days after the filing of Respondent's Answer.

IT IS SO ORDERED.


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