The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Petitioner, a state prisoner proceeding pro se, filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262. Respondent Karen Prosper, Warden of the California Correctional Center ("Respondent") has filed a Motion to Dismiss the Petition on grounds that it was filed beyond the one-year statute of limitations.
On December 15, 2008, the Magistrate Judge filed findings and recommendations which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Respondent has timely filed objections to the findings and recommendations.
As indicated above, Respondent's Motion to Dismiss was predicated on the contention that the instant Petition was filed beyond the applicable one-year statute of limitations. The last day for Petitioner to have filed a timely federal petition was January 16, 2008. The Petition however, was not filed until February 7, 2008.
Respondent noted in the Motion to Dismiss that the Petition contained a proof of service to prison authorities for December 10, 2007. In response, however, Respondent attached the prison's outgoing legal mail log to show that prison officials mailed the Petition to the court on February 5, 2008. Respondent, in some unspecified manner, concluded that Petitioner must have delivered the petition to prison officials on February 5, 2008.
In his opposition to the motion to dismiss, Petitioner stated that he placed the petition in the prison mailing system on December 10, 2007, and alleged that the tardiness of the petition was due to the prison mailing system and a disruption with the library staff. Respondent elected not to file a reply.
On December 15, 2008, the magistrate judge issued findings and recommendations denying the motion to dismiss. The findings and recommendations relied on the prison "mailbox rule" to find that Petitioner timely submitted the petition to prison authorities. The Magistrate Judge stated in part:
When a pro se petitioner produces evidence that he timely complied with a procedural deadline by submitting documentation to prison officials, the burden shifts to the respondent to provide evidence in support of a contrary finding. Caldwell v. Amend, 30 F. 3d 1199, 1202 (9th Cir. 1994). In opposition, respondent provides the outgoing legal mail log for petitioner at California Correctional Center. Lodged Doc. 5. Respondent asserts that the log shows that the petition was delivered to prison officials on February 5, 2008.
Respondent's evidentiary submission, a one page copy of a fax, is deficient in many respects. The mail log is unauthenticated and is unaccompanied by a declaration stating what the document is purported to reflect. The mail log contains three entries, two of which show a date of February 5, 2008, and are addressed to the court, and most likely correspond to the instant petition.*fn1 The February 5, 2008, date is grouped in a column marked "sent". This court assumes that is the date the petition left the prison. However, nothing on the mail log indicates the date the petition was received, the date at issue. Respondent has provided no other information describing the mail process at California Correction Center. As such, the court has no way to determine how long the petition could have been in the custody of prison officials.
Findings and Recommendations at 2-3.
Based on the evidence presented, the Magistrate Judge correctly concluded that Petitioner timely submitted his petition to prison officials as Respondent failed to adequately counter that assertion.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted ...