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Howard v. Sisto

June 11, 2009

HARRY LLOYD HOWARD, PETITIONER,
v.
D.K. SISTO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondents' motion to dismiss (Doc. 13) this petition as untimely.

I. BACKGROUND

Petitioner submitted an administrative grievance in November 2005 claiming that he had been improperly classified as a "life" inmate and that this classification was preventing him from obtaining release on parole. Petitioner's grievance was denied at the director's level on June 13, 2006. Petitioner then filed a petition for writ of habeas corpus in the Orange County Superior Court on February 13, 2007, which was denied on April 23, 2007.*fn1 Petitioner then filed a petition in the California Court of Appeal on July 18, 2007, which was denied on July 26, 2007. Petitioner filed a petition in the California Supreme Court on September 11, 2007, which was denied on March 26, 2008. The instant federal petition was filed on June 9, 2008.

II. DISCUSSION

Respondents argue that the instant petition is untimely.*fn2 Federal habeas corpus petitions must be filed within one year from the later of: (1) the date the state court judgment became final; (2) the date on which an impediment to filing created by state action is removed; (3) the date on which a constitutional right is newly-recognized and made retroactive on collateral review; or (4) the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court judgment becomes final by the conclusion of direct review or expiration of the time to seek direct review. See 28 U.S.C. § 2244(d)(1).

Where a petition for review by the California Supreme Court is filed and no petition for certiorari is filed in the United States Supreme Court, the one-year limitations period begins running the day after expiration of the 90-day time within which to seek review by the U.S. Supreme Court. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Where no petition for review by the California Supreme Court is filed, the conviction becomes final 40 days following the Court of Appeal's decision, and the limitations period begins running the following day. See Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002). If no appeal is filed in the Court of Appeal, the conviction becomes final 60 days after conclusion of proceedings in the state trial court, and the limitations period begins running the following day. If the conviction became final before April 24, 1996 -- the effective date of the statute of limitations -- the one-year period begins to run the day after the effective date, or April 25, 1996. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999).

In cases involving a challenge to the denial of parole, the statute of limitations begins to run on the date that parole is denied. See Redd v. McGrath, 343 F.3d 1077, 1085 (9th Cir. 2003). In cases challenging prison disciplinary proceedings, the limitation period begins to run the day after the petitioner receives notice of final denial of his administrative appeals. See Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004). There is a presumption, which the petitioner may rebut, that notice was received the day the denial was issued. See Valdez v. Horel, 2007 WL 2344899 (E.D. Cal. 2007).

The limitations period is tolled, however, for the time a properly filed application for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be "properly filed," the application must be authorized by, and in compliance with, state law. See Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 128 S.Ct. 2 (2007); Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a state's timeliness bar, time limits for filing a state post-conviction petition are filing conditions and the failure to comply with those time limits precludes a finding that the state petition is properly filed). A state court application for post-conviction relief is "pending"during all the time the petitioner is attempting, through proper use of state court procedures, to present his claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered "pending" after the state post-conviction process is concluded. See Lawrence v. Florida, 549 U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari petition to the Supreme Court was pending). Where the petitioner unreasonably delays between state court applications, however, there is no tolling for that period of time. See Carey v. Saffold, 536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as untimely, the federal court must independently determine whether there was undue delay. See id. at 226-27.

There is no tolling for the interval of time between post-conviction applications where the petitioner is not moving to the next higher appellate level of review. See Nino, 183 F.3d at 1006-07; see also Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001). There is also no tolling for the period between different sets of post-conviction applications. See Biggs v. Duncan, 339 F.3d 1045 (9th Cir. 2003). Finally, the period between the conclusion of direct review and the filing of a state post-conviction application does not toll the limitations period. See Nino, 1983 F.3d at 1006-07.

In this case, in which petitioner challenges the denial of an administrative grievance, the limitations period began to run on June 14, 2006 -- the day after his grievance was denied at the highest level of review. See Redd, 343 F.3d at 1085; Shelby, 391 F.3d at 1066. Petitioner then waited 244 days until February 13, 2007 to file his first state court petition in the Orange County Superior Court. Petitioner argues that, during this 244-day period, he was litigating a case in the federal court and appears to suggest that the limitations period was tolled during the time this federal court case was pending. Petitioner is not correct. AEDPA provides for statutory tolling only during the time properly filed cases are pending in the state courts. See 28 U.S.C. § 2244(d)(2). Petitioner does not offer any other explanation for the delay in filing his first state court action.

Statutory Tolling

Respondents concede that petitioner is entitled to statutory tolling for the time his first state petition was pending -- from February 13, 2007, through April 23, 2007.

Respondents argue, however, that petitioner is not entitled to statutory tolling for the 85-day interval between the denial of the first petition on April 23, 2007, and the filing of his second state court petition in the California Court of Appeal on July 18, 2007. In his opposition to respondents' motion to dismiss, petitioner offers no explanation for the delay. Given that petitioner has offered no explanation for the 85-day delay between the first and second petitions, the court finds that the delay was unreasonable and, therefore, that petitioner is not entitled to tolling for this time. See Carey, 536 U.S. 214; see also Evans v. Chavis, 546 U.S. 189, 201 (2006) (observing that 30 to 60 days would normally be reasonable). Numerous judges who have considered this issue agree that a delay of more than 60 days is unreasonable. See Contreras v. Curry, 2008 WL 4291473 (N.D. Cal. 2008) (involving 88-day delay); Livermoore v. Watson, 2008 WL 802330 (E.D. Cal. 2008) ...


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