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Stotts v. Sisto

August 20, 2009

LEROY STOTTS, 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, challenging a decision by the California Board of Prison Hearings (Board) that he is unsuitable for parole. Pending before the court is Respondents' motion to dismiss the petition on the grounds that it is barred by the statute of limitations (Doc. 12). Petitioner filed an opposition*fn1 to the motion (Doc. 18), and Respondents filed a reply (Doc. 19). On May 28, 2009, the court issued an order providing Petitioner with an opportunity to submit additional briefing. Petitioner had 30 days in which to respond. More than 30 days have past, and no response to that order has been received.*fn2

I. BACKGROUND

Petitioner was convicted in the Superior Court of Solano County of first degree murder in 1987, and was sentenced to 27 years to life. (Pet., Doc. 1, at 1). A subsequent parole consideration hearing for petitioner was held on June 10, 2005. At that hearing, the Board determined petitioner was not suitable for parole, and denied parole for five years. (See Motion, Ex. 1, Doc. 12-2, at 82). The Board's decision was rendered at the time of the hearing on June 10, 2005, but states it was not final until October 8, 2005. (Id.) Petitioner filed a petition with the Solano County Superior Court on February 26, 2006, which was denied on April 26, 2006. He then filed a petition with the California Court of Appeal on July 3, 2006, which was denied on August 31, 2006. His final state petition was filed with the California Supreme Court on November 20, 2006, which was denied on May 23, 2007. Petitioner filed the instant action on May 29, 2008.*fn3

II. MOTION TO DISMISS

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Rule 4 of the Rules Governing Section 2254 Cases. The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F. Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n.12.

Respondent brings this motion to dismiss Petitioner's federal habeas corpus petition as filed beyond the one-year statute of limitations, pursuant 28 U.S.C. § 2244(d). Respondent argues the statute of limitations began running following the Board's June 10, 2005, decision, which expired well before the petition was filed in this case on May 29, 2008. Respondent also argues Petitioner is not entitled to interval or equitable tolling because Petitioner unreasonably delayed in filing his state petitions, and has not met his burden of establishing diligence to be entitled to equitable tolling.

Petitioner argues the Board's decision was not final until October 8, 2005, and the statute of limitations did not start to run until then. He also argues he should be allowed interval tolling because there was no unreasonable delay in filing his state petitions, and he should be entitled to equitable tolling because he was not notified of the California Supreme Court's decision denying his petition in a timely fashion.

A. Statute of Limitations

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"). AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. See Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). In this case, the petition was filed on May 29, 2008, and therefore, it is subject to the provisions of AEDPA. AEDPA imposes a one-year statute of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2254(d) reads:

(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 the 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 was asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...


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