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Bennett v. Carey

April 27, 2009

TOSSIE BENNETT, PETITIONER,
v.
THOMAS L. CAREY, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 24, 2008, the undersigned ordered respondent to file and serve a response to the petition. On December 23, 2008, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed a timely opposition to the motion, and respondent has filed a reply.

BACKGROUND

In his petition, petitioner claims that the Board of Parole Hearings (Board) continues to deny him one-third and one-half time credits by using an allegedly illegal "life prisoner" scheme in violation of his constitutional rights under the Fourteenth Amendment Due Process Clause. Petitioner also takes issue with the Solano County Superior Court's denial of his petition for writ of habeas corpus challenging the Board's actions. According to petitioner, the Superior Court's "pro forma decision" is a clear denial of his constitutional rights under the Fourteenth Amendment Due Process Clause and Equal Protection Clause. (Pet. Attach.)

On May 25, 2003, petitioner filed an administrative grievance at his institution challenging the Board's alleged improper denial of his time credits. Prison officials denied the grievance at the first and second formal levels of review. Petitioner then filed two separate grievances at the director's level of review, but prison officials returned them to him explaining that they were untimely. (Resp't's Mot. to Dismiss, Ex. 1.)

On February 3, 2004, petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court. On March 12, 2004, the Superior Court denied the petition. On October 5, 2005, petitioner filed a petition for writ of habeas corpus in the Solano County Superior Court and on November 29, 2005, that court denied the petition, concluding that petitioner's "attempt to resurrect a claim" that the Los Angeles County Superior Court had previously denied constituted an abuse of the writ. On December 8, 2005, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the First Appellate District. On January 30, 2006, the Court of Appeal summarily denied the petition. Finally, on February 3, 2006, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On March 15, 2006, the California Supreme Court summarily denied the petition. (Resp't's Mot. to Dismiss, Exs. 1-8.) On March 23, 2006, petitioner commenced this action by filing a federal petition for writ of habeas corpus.

RESPONDENT'S MOTION TO DISMISS

Respondent argues that petitioner's federal habeas petition is time-barred. Specifically, respondent contends that on May 25, 2003, petitioner filed an administrative grievance at his prison claiming that he was entitled to be released because he is not a "life prisoner." Prison officials denied his grievance at the first and second formal levels of review. Petitioner then filed two separate grievances at the director's level of review, but prison officials returned both of them to him explaining that they were untimely. Under these circumstances, respondent argues that AEDPA's one-year statute of limitations period began to run on August 28, 2003, the day prison officials denied petitioner's administrative grievance at the second formal level of review. According to respondent, by August 28, 2003, petitioner should have been aware of the factual predicate of his present claims. Respondent argues that although petitioner subsequently filed two grievances at the director's level of review, prison officials screened out these grievances because petitioner did not properly utilize the appeals process. Respondent contends that petitioner should not be given the benefit of these delayed attempts to seek relief at the director's level of review. (Resp't's Mot. to Dismiss at 2-5.)

Respondent acknowledges that the proper filing of a state post-conviction application with respect to the pertinent claims tolls the one-year statute of limitations period. Respondent does not dispute that petitioner is entitled to statutory tolling for the period that his petition for writ of habeas corpus was pending in the Los Angeles County Superior Court. However, respondent argues that petitioner is not entitled to tolling for the period in between the Los Angeles County Superior Court's denial of his petition on March 12, 2004, and the filing of his petition for writ of habeas corpus in the Solano County Superior Court on October 5, 2005. Respondent contends that interval tolling is not available where, as here, petitioner did not file his next petition in a higher court at the next level of the state court system. Respondent argues that absent tolling during this interval the statute of limitations expired. Although petitioner subsequently filed a state habeas petition with the California Court of Appeal and the California Supreme Court, respondent contends the filing of a petition after the expiration of the statute of limitations cannot serve as a basis for statutory tolling. Accordingly, respondent concludes that petitioner's federal habeas petition is untimely. (Resp't's Mot. to Dismiss at 5-6.)

PETITIONER'S OPPOSITION

In opposition to respondent's motion to dismiss, petitioner argues that the facts set forth in his petition are undisputed and establish a denial of petitioner's constitutional rights to earn credits. Petitioner contends that he did all that he could do to bring factually meritorious claims to the state courts for review and relief. Petitioner also argues that his petition is not untimely. He notes that the California Supreme Court denied his last state habeas petition on March 15, 2006, and he filed his federal petition on March 27, 2006, well within one year of the California Supreme Court's denial. Petitioner concludes that he is entitled to habeas corpus relief and that this court should enter judgment in his favor. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 6-13.)

RESPONDENT'S REPLY

In reply, respondent reiterates that petitioner's federal habeas petition is time-barred. Specifically, respondent repeats that after the Los Angeles County Superior Court denied his state habeas petition, petitioner did not seek review at the next appellate level. Instead, he filed a petition in the Solano County Superior Court. In respondent's view, petitioner is not entitled to interval tolling for the period between the Los Angeles County Superior Court's denial of his petition and the filing of his petition in the Solano County Superior Court because he failed to seek review at the next level of the state court system. Moreover, because petitioner has not alleged a basis for equitable tolling, respondent concludes that petitioner's federal habeas petition is untimely. (Resp't's Reply at 2-3.)

ANALYSIS

I. The AEDPA Statute of ...


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