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Svelund v. Sisto

October 15, 2009

JOHN D. SVELUND, PETITIONER,
v.
D.K. SISTO, WARDEN, RESPONDENT.



The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge

REPORT AND RECOMMENDATION

I. SUMMARY

Petitioner John Svelund is currently incarcerated at the California State Prison, Solano in Vacaville, California. He was convicted by a jury of one count of second degree murder in Los Angeles County Superior Court on October 23, 1987. He is currently serving a sentence of fifteen-years-to-life with the possibility of parole and has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2005 parole denial by the Board of Parole Hearings of the State of California (the "Board").*fn1 (See Docket 1.)

Respondent has filed an answer to the petition contending that the Court should dismiss the petition as untimely under the one-year statute of limitations set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (See Dkt. 10 at 12-14.) In addition, respondent contends petitioner has failed to exhaust his state court remedies. (See id. at 5.) Petitioner filed a traverse in reply to the answer asserting that the petition was timely and that he properly presented his federal claims to the California state courts. (See Dkt. 12.)

The briefing in this case also includes respondent's response to the Court's October 2, 2008, Order directing the parties to show cause why this action should not be administratively stayed pending the Ninth Circuit Court of Appeals' decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008). (See Dkt. 15 at 2.) That Order was entered by the Hon. Gregory G. Hollows before this case was transferred to the Hon. Robert S. Lasnik. Respondent asserts that an administrative stay is in the best interest of the parties. (See Dkt. 16.) Petitioner did not respond to the Court's Order. The court neither entered a stay, nor ruled that a stay is inappropriate.

Finally, petitioner moves the Court to take judicial notice of a Santa Clara Superior Court Order entered in an unrelated habeas case that contains statistical evidence suggesting that the Board regularly applies the commitment offense unsuitability factor in an arbitrary manner. (See Dkt. 13.) Because petitioner brings this evidence to the Court's attention as further support for the arguments set forth in his petition, I recommend petitioner's request for judicial notice be construed as supplemental briefing in support of his petition.

Thus, the briefing is now complete and this matter is ripe for review. The Court, having thoroughly considered the record, recommends the Court find that while the petition is timely, a stay is not warranted at this late stage in the proceedings, and the petition should be denied on the merits and this action dismissed with prejudice.

II. TIMELINESS

Respondent contends the petition should be dismissed as it is barred by the one-year statute of limitation set forth in AEDPA. (See Docket 10 at 5 & 12-14.) Specifically, respondent contends that the limitations period began to run the day after the Board rendered its May 25, 2005, decision and, thus, when petitioner filed his federal habeas corpus petition in this Court on June 12, 2007, 747 days had passed, well-exceeding the one-year limitations period. (See id. at 13.) Petitioner claims respondent "misrepresents the timetable" and that his petition was timely filed. (See Dkt. 12 at 4.) Petitioner is correct.

First, it is undisputed that AEDPA's provisions are applicable in this case, as Congress enacted AEDPA on April 24, 1996, and made it applicable to all federal habeas corpus petitions filed on or after its effective date. See 28 U.S.C. § 2244(d)(1). As stated above, petitioner filed his federal habeas corpus petition in 2007.

AEDPA provides a one-year period of limitations on all petitioners seeking to file federal habeas corpus petitions. 28 U.S.C. § 2244(d)(1). According to § 2244(d)(1) and (2), as amended, the limitation period runs 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 asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

Id.

Typically, the period of limitations begins to run from the date the petitioner's state court judgment became final. Where a petitioner is challenging an administrative decision, as in this case, the Ninth Circuit has held that direct review is completed and the statute of limitations begins to run when the final administrative appeal is denied. See Shelby v. Barlett, 391 F.3d 1061, 1063 & 1066 (9th Cir. 2004) (holding the "factual predicate" for habeas challenges of parole board decisions is the day the administrative decision becomes final, assuming the petitioner received proper notice); Redd v. McGrath, 343 F.3d 1077, 1080 n.4 (9th Cir. 2003) (the same).

Here, the evidence shows that the Board conducted petitioner's third subsequent parole hearing on May 25, 2005. (See Dkt. 10, Exh. 4.) At the bottom of the parole hearing transcript it states that the Board's decision became final on September 22, 2005. (See id. at 61.) Up until that date, the Board's decision was subject to modification. (See id.) See also Perez v. Sisto, 2007 WL 3046006, *4-5 (E.D. Cal. 2007) (unpublished) (holding that the "factual predicate" underlying petitioner's claims is not discoverable until the final decision date, which is set forth at the end of the hearing transcript). Thus, contrary to respondent's calculation, the one-year statute of limitation began to run in this case on September 23, 2005, the day after the Board's decision became final. Thus, absent any applicable tolling, petitioner had 365 days from that date, or until September 22, 2006, within which to file his federal habeas corpus petitioner in this Court.

As set forth above, petitioner filed his federal petition on June 12, 2007, nearly nine months after the one-year period of limitations expired. Thus, unless the tolling provision is applicable, the petition is untimely. Section 2244(d)(2), the tolling provision set forth above, states that "[t]he time during which a properly filed application for post conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted" toward the AEDPA statute of limitations. According to the state court record, petitioner filed his state habeas corpus petition with the Los Angeles County Superior Court on April 13, 2006, approximately seven months from the date the Board's decision became final. (See Dkt. 10, Exh. 8 at 1.) That petition was denied on January 9, 2007. (See id. at 2.) Petitioner then filed his petition in the California Court of Appeal on February 23, 2007. (See id., Exh. 9.) That petition was denied on February 26, 2007. (See id., Exh. 10.) Petitioner then filed his petition in the California Supreme Court on March 9, 2007, and that petition was denied on May 9, 2007. (See id., Exhs. 11 &12.) Thus, as long as the state court petitions were "properly filed," the limitations period would be tolled for approximately thirteen months, from April 13, 2006, until May 9, 2007. See Carey v. Saffold, 536 U.S. 214, 222-24 (2002) (a state habeas petition is "pending" during a full round of review in the state courts, including the time between a lower court decision and the filing of a new petition in a higher court, as long as the intervals between petitions are "reasonable").

Respondent contends that because petitioner delayed filing his first state habeas petition in the Los Angeles County Superior Court for twelve months (based upon the miscalculated date of May 25, 2005, and April 13, 2006), his delay was unreasonable and he is not entitled to statutory tolling. Respondent relies upon two Ninth Circuit cases to support his petitioner, neither of which is on point. (See Dkt. 10, at 13.) See Gaston v. Palmer, 447 F.3d 1165, 1166-67 (9th Cir. 2006) (holding petitioner was not entitled to "interval" tolling when there were lengthy gaps between his state court filings); Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir. 2005) (holding statutory tolling was inapplicable where the state court dismissed the petition as untimely).

In this case, petitioner did not create gaps in between his state court filings nor did any state court consider his petitions untimely or improperly filed. Petitioner timely pursued all available state court remedies, filing his subsequent state court petitions soon after each state court denial. The issued raised by respondent -- that he delayed filing his first habeas corpus petition in the Los Angeles County Superior Court -- is not of grave concern. Petitioner waited approximately seven months after the Board decision became final to file his initial habeas corpus petition. That was his first attempt to articulate his state habeas corpus claims. This Court is unaware of any authority to support the proposition that a seven-month delay in filing an initial state petition deprives a petitioner of statutory tolling when all other state petitions were properly filed. See Rios v. Dep't of Corr. & Rehab., 2009 WL 2990243, *5, n.4 (E.D. Cal. Sept. 11, 2009) (unpublished) (stating "[n]either the Ninth Circuit nor the United States Supreme Court has addressed whether a [initial] delay in filing may deprive a petitioner of statutory tolling for the pendency of an otherwise properly filed state petition....")

I therefore recommend the Court find petitioner is entitled to statutory tolling during the period between his April 13, 2006, filing in the Los Angeles County Superior Court and May 9, 2007, the date upon which the California Supreme Court denied his petition. Accordingly, the statute of limitations began to run on September 23, 2005, and ran for 203 days until April 13, 2006, when petitioner filed his petition in superior court. The statute then began to run again on May 10, 2007, for 34 days, until petitioner filed his federal habeas petition in this Court on June 12, 2007. Thus, approximately 237 days had passed and petitioner was within the one-year period of limitations when he filed his federal habeas corpus petition in this court. I therefore recommend the Court find that petitioner's federal petition was timely filed.

III. PRUDENCE OF ENTERING A STAY

As mentioned in Part I, supra, respondent filed supplemental briefing in response to this Court's June 2, 2008, Order directing both parties to show cause why this action should not be administratively stayed pending the Ninth Circuit Court of Appeals' decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008). (See Dkts. 15 & 16.) Respondent requested that this matter be stayed and petitioner does not appear to have responded. (See Dkt. 16.) Because the Hayward decision is unlikely to affect the outcome of the case, I recommend this Court deny respondent's request for a stay and rule on the merits of the petition without further delay.

A. Hayward v. Marshall

The Hayward case involved a habeas petition filed by a sixty-four-year-old prisoner serving a sentence of fifteen-years to life. Hayward, 512 F.3d at 536. Ronald Hayward was convicted by a jury of second degree murder for killing a man he had stabbed twelve times. Id. Although Hayward was granted parole by the Board at his eleventh parole consideration hearing held on June 19, 2003, the Governor reversed the Board's decision on the basis that there was "some evidence" the prisoner remained an unreasonable risk of danger to society if released on parole. Id. at 540. Specifically, the Governor's findings were based upon Hayward's "especially grave" commitment offense, refusal to accept adequate responsibility for the victim's death, history of escalating criminality and violence, unstable social history, history of gang activity, negative psychological evaluations, and opposition by the Los Angeles County District Attorney. Id.

Hayward initially filed a habeas petition with the Los Angeles County Superior Court seeking relief from the Governor's decision. Id. Although the court rejected the Governor's findings regarding Hayward's failure to accept responsibility, criminal history, and unstable social history, it ultimately found "some evidence" to support the Governor's conclusion. Id. Hayward's habeas petition with the California Supreme Court was also denied on July 27, 2005. Id.

Hayward then filed a petition in the U.S. District Court, contending that the Governor's reversal of the Board's parole grant violated his right to due process of law. Id. at 541. The district court found that, under clearly established precedent of the U.S. Supreme Court, petitioner had no constitutionally-protected liberty interest in parole. Id.

A three-judge panel of the Ninth Circuit Court of Appeals reversed, holding that the Governor's reversal of the Board's finding that Hayward was suitable for parole violated Hayward's due process right and entitled him to habeas relief. Id. at 548. Specifically, the panel found that there was no evidence in the record to support the grounds relied upon by the Governor, except for the immutable factors of Hayward's criminal history, unstable social history, and commitment offense. Id. at 544-45. Because these immutable factors, "whether analyzed individually or collectively, do not constitute evidence that Hayward would [currently] pose a danger to public safety if released from prison," the Board granted Hayward's request for habeas relief. Id. at 545-46.

On May 16, 2008, the Ninth Circuit granted en banc review in Hayward to consider, among other issues, whether prisoners have a constitutionally protected liberty interest in parole, and if so, what process is due under clearly established U.S. Supreme Court authority. See Hayward v. Marshall, 527 F.3d 797 (9th Cir. 2008). Although oral argument was completed on June 24, 2008, as of the date of this Report and Recommendation, the Ninth Circuit has not issued a decision.

B. Application of a Stay in This Case

This Court "may, with propriety, find it is efficient for its own docket and the fairest course, for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case." Leyva v. Certified Grocers of Cal. Ltd., 593 F.2d 857, 863 (9th Cir. 1979). As the Ninth Circuit has pointed out, however, habeas proceedings "implicate special considerations that place unique limits on a district court's authority to stay a case in the interests of judicial economy." INS v. Yong, 208 F.3d 1116, 1120 (9th Cir. 2000). Specifically, judicial economy cannot justify "an indefinite, potentially lengthy stay in a habeas case." Id.

If this Court were to enter a stay in the instant case, it would be indefinite and potentially lengthy as it is unclear when a decision in Hayward will be forthcoming. The delay has already been substantial, as oral argument in Hayward concluded more than a year ago. It is also worth repeating that petitioner filed his federal habeas petition on June 12, 2007. (See Dkt. 1.)

As discussed infra, I recommend that this Court conclude petitioner does have a constitutionally-protected liberty interest in parole. This is the first issue before the en banc panel in Hayward. Although this Court should resolve this legal issue in petitioner's favor, I nevertheless recommend this Court deny the petition on the facts of this case. If this Court agrees with these recommendations there would ...


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