The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has 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.
On December 15, 2008, the undersigned filed findings and recommendations (Doc. #12) recommending that the motion to dismiss for filing the petition after the one-year statute of limitations be denied. The findings and recommendations were served on all parties and contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Respondent timely filed objections (Doc. #15) to the findings and recommendations that contained new evidence not in the original motion to dismiss. On April 6, 2009, the district judge, the Honorable Morrison C. England, Jr., issued an order (Doc. #17) remanding the finding and recommendations back to the undersigned to consider the new evidence. Petitioner was also granted 10 days to respond to the newly presented evidence. Petitioner submitted a letter citing his February 26, 2009, (Doc. #16), memorandum as his response.
Respondent filed a motion to dismiss the petition on the ground that it was filed beyond the one-year statute of limitations. The last day for petitioner to file a timely federal petition was on January 16, 2008. The instant petition was filed on 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.*fn1 In response, respondent attached plaintiff'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, as a librarian was killed in a car accident. Respondent elected not to file a reply.
On December 15, 2008, undersigned, relying on the prison "mailbox rule," recommended that the motion to dismiss be denied.
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.*fn2 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.
December 15, 2008, Findings and Recommendations at 2-3.
Respondent's new evidence includes several declarations by officials at the prison and other documents describing the procedure for inmate legal mail. Respondent has met his burden in refuting petitioner's contention that the petition was timely mailed. A review of the materials indicates that petitioner could not have submitted the petition to prison officials on December 10, 2007, rather petitioner submitted his petition after the statute of limitations had expired.
Petitioner alleges that he placed the petition in a library drop box routinely used for legal mail on December 10, 2007, and he was unaware that the petition was untimely mailed. Petitioner theorizes that ...