The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner Kevin Reid is currently incarcerated at the California State Prison, Solano in Vacaville, California. He pled guilty to second degree murder with a weapon enhancement in Contra Costa County Superior Court on September 16, 1981, and was sentenced to 16-years-to-life with the possibility of parole. He has filed a petition for writ of habeas corpus, together with relevant portions of the state court record, under 28 U.S.C. § 2254. (See Docket 1.) Petitioner challenges Governor Schwarzenegger's 2005 decision finding him unsuitable for parole, and reversing his November 2004 grant of parole by the Board of Parole Hearings of the State of California (the "Board"),*fn1 on the grounds that the Governor's parole denial violated his federal due process rights. (See id. at 10-13.)
Respondent has filed an answer to the petition in which he contends that the Court should dismiss the petition because it was untimely under the one-year statute of limitations set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (See Dkt. 12 at 5-9.) In the alternative, respondent asserts that petitioner's claims are without merit. (See id. at 10-17.) Petitioner filed a traverse in reply to the answer in which he denies respondent's contentions. (See Dkt. 15.)
In addition, this Court directed respondent to supplement the record with briefing and portions of petitioner's institutional record that support the Governor's findings regarding petitioner's disciplinary history in prison and "documented history of inappropriately managing his anger," in the event that the information contained therein would assist this Court in evaluating petitioner's due process claim. (See Dkt. 18.) Respondent produced the requested supplemental briefing and related exhibits, and petitioner filed a supplemental brief in response. (See Dkts. 21 and 22.) Respondent also argues, however, that this Court is barred from considering these documents because petitioner failed to attach them to his state habeas petition and they were therefore not part of the state court record. (See Dkt. 21 at 2.) Because the only authority cited by respondent in support of his contention is 28 U.S.C. § 2254(e)(2), which relates to a federal court's ability to hold an evidentiary hearing rather than expand the record, his argument is unconvincing. (See id.) Pursuant to Rule 7(a), a federal habeas court may expand the record to include additional materials relating to the petition. See Rule 7(a), Rules Governing § 2254 Cases. Accordingly, I recommend the Court reject respondent's contention and review respondent's supplemental filing.
In their supplemental briefing, respondent and petitioner requested that this case be stayed pending the resolution of Hayward v. Marshall, a case argued and submitted on June 24, 2008, before a limited en banc panel in the U.S. Court of Appeals for the Ninth Circuit. 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008). (See Dkt. 21 at 5; Dkt 22 at 2.) Hayward presents issues sufficiently similar to those in this case that it seems likely the en banc decision will have significant implications for the resolution of petitioner's case. Presuming that a decision in Hayward would be forthcoming in a reasonable period of time, this Court entered an Order deferring submission of this Report and Recommendation until the filing of the Ninth Circuit's en banc decision. (See Dkt. 23.) As of the date of this Report and Recommendation, however, Hayward remains undecided. Petitioner has therefore waited approximately thirty-two months for the District Court to address his claims. Fairness to the parties requires that this Court move ahead. If Hayward is decided while this Report and Recommendation is pending before the presiding U.S. District Judge, he will be able to take that decision into account in ruling upon this case.
The Court, having thoroughly considered the record and briefing of the parties, recommends that the Court find that petitioner's federal habeas petition is untimely, which is a fully sufficient basis for denial. But even if petitioner attempts to make, and if this Court permits him to make, a belated showing that his petition is timely, his petition must fail on the merits. Under either basis, this action should be dismissed with prejudice.
Like most California prisoners, petitioner used the state's original writ system to present a collateral challenge to his confinement. "The supreme court, intermediate courts of appeal, and superior courts all have original habeas corpus jurisdiction." Nino v. Galaza, 183 F.3d 1003, 1006 n.2 (9th Cir. 1999); Cal. Const. art. VI, § 10. As a result, "California's collateral review system differs from that of other States in that it . . . contemplates that a prisoner will file a new 'original' habeas petition" in each court. Carey v. Saffold, 536 U.S. 214, 220-21 (2002). Petitioner filed original habeas petitions in the Superior Court for Contra Costa County; in the California Court of Appeals; and in the California Supreme Court. (See Dkt. 12, Exs. E, F, and G.) For simplicity, the analysis which follows will refer to these petitions as State Petitions #1, #2 and #3, respectively.
AEDPA provides that a state prisoner has one year to seek federal habeas corpus relief. See 28 U.S.C. § 2244(d)(1). Federal courts apply several ground rules in determining what time intervals "count" against this one-year limitations period. Where a petition challenges the denial of parole, the entire period between the date when the factual predicate of the claim could have been discovered through the exercise of due diligence, until the date of filing of the first state habeas petition, is counted. See id. § 2244(d)(1)(D); Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003). If a California petitioner files a series of state petitions, the period between the denial of one and the filing of the next is not counted at all if the delay is "reasonable;" but that interval is counted in full if the delay is "unreasonable." See Evans v. Chavis, 546 U.S. 189, 197-98 (2006). Once the final state petition is denied, the entire interval between the denial of that petition and the filing of the federal petition is counted. See Galaza, 183 F.3d at 1006; Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006). These various intervals are cumulated or "tacked" to determine whether a petitioner has complied with the AEDPA one-year limitations period.
The relevant time intervals in this case are illustrated in the following chart:
Petitioner Received Notice of Governor's Denial of Parole 262 Days
State Petition #1 Filed, Later Denied
State Petition #2 Filed, Later Denied
49 days - Reasonable Period
State Petition #3 Filed, Later Denied
Federal Petition Filed As indicated, 262 days elapsed before the filing of State Petition #1. 155 days elapsed between the denial of State Petition #1 and the filing of State Petition #2, but the reasonableness of this delay is at issue. Respondent acknowledges the 49-day interval between the denial of State Petition #2 and the filing of State Petition #3, but does not argue that this interval was "unreasonable." (See Dkt. 12 at 9.) Finally, the interval between the denial of State Petition #3 and the filing of this federal habeas petition was 61 days.
The parties in this case disagree regarding the timeliness of petitioner's federal habeas petition. (See Dkt. 12 at 5-9; Dkt. 15 at 2-6.) Their first point of disagreement concerns the date on which AEDPA's one-year statute of limitations began to run against petitioner because the factual predicate of petitioner's claim could have been discovered through the exercise of due diligence. (See Dkt. 12 at 2; Dkt. 15 at 2.) Specifically, respondent argues that because petitioner received a letter informing him of Governor Schwarzenegger's parole denial dated March 30, 2005, together with a copy of the Governor's decision, the statute of limitations began to run the next day, March 31, 2005. (See Dkt. 12 at 2.) In contrast, petitioner contends that AEDPA's one-year statute of limitations did not begin to run until April 12, 2005, because the Governor's letter and decision were not actually faxed to CSPSolano, where petitioner was incarcerated, until 1:51 p.m. on April 11, 2005, as demonstrated by the fax date noted on the header of the Governor's letter. (See Dkt. 15 at 1-2; Dkt. 12, Exhibit D at 1.) Because the Court finds that "due diligence" does not require petitioner to have discovered the Governor's parole denial before he received a copy of the Governor's letter and decision reversing the Board's grant of parole, and petitioner's assertion regarding the actual date these documents were faxed to petitioner's institution appears accurate, this Court agrees with petitioner that the one-year statute of limitations began to run on April 12, 2005. See also Evins v. Curry, 2009 WL 649788, *1 (N.D. Cal. 2009) (finding that AEDPA's statute of limitations began to run after "[p]petitioner received the Governor's decision to reverse the Board's grant of parole.").
Starting April 12, 2005, a total of 262 days elapsed before petitioner filed State Petition #1 on December 29, 2005. (See Dkt. 1, Ex. 3; Dkt. 12, Ex. E.)
It is undisputed that the interval between the denial of State Petition #1 and the filing of State Petition #2 was 155 days. (See Dkt. 1, Ex. 3 and 4; Dkt. 12, Ex. E at 1-6 and F; Dkt. 15 at 5.) Respondent contends this was an unreasonable delay (see Dkt. 12 at 8-9; id. Exs. E, F, and G), and as a result this interval must be counted against the one-year limitations period.
To date, the California Supreme Court has not provided any guidance as to what constitutes an unreasonable delay in filing a subsequent habeas petition under California law.
See King v. LaMarque, 464 F.3d 963, 966 (9th Cir. 2006). Furthermore, when the Ninth Circuit Court of Appeals certified several "questions of law concerning the timeliness of a California's inmate's petition for writ of habeas corpus" to the California Supreme Court in Chaffer v. Prosper, the state court denied certification. 542 F.3d 662, 663-66 (9th Cir. 2008).
The U.S. Supreme Court held in Evans v. Chavis that until the California Supreme Court indicates otherwise, federal courts must operate "on the assumption that California law . . . [does] not differ significantly from the laws of other States, i.e., that California's 'reasonable time' standard [does] not lead to filing delays substantially longer than those in States with determinate timeliness rules." 546 U.S. at 199-200 (citing Saffold, 536 U.S. at 222-23). Thus, "an unjustified or unexplained" delay in filing that is substantially longer than the "shorter period[s] of time, 30 to 60 days, that most States provide for filing an appeal to the state supreme court" is "unreasonable" under California law. Id. at 201.
In addition, after the California Supreme Court denied certification in Chaffer, the Ninth Circuit held that the prisoner was not entitled to statutory tolling of the limitations period for the 115-day gap between the denial of his first state habeas petition in the superior court and the filing of his second in the California Court of Appeal, as well as for the 101-day gap between the denial of his second state habeas petition and the filing of his third in the California Supreme Court. 592 F.3d 1046, 1048 (per curiam). Specifically, the Chaffer court held that the prisoner's filing delays of 115 and 101 days were substantially longer than the "30 to 60 days" that most states allow, and "unexplained delays of this magnitude [did not] fall within the scope of the federal statutory word 'pending' [in 28 U.S.C. § 2244(d)(2).]" Id. (citing Chavis, 546 U.S. at 201.)
Although petitioner argues that the Chavis decisionis inapplicable to his federal petition under Teague v. Lane, because Chavis announced a new "30-60 day rule" which does not apply retroactively on collateral review, his contention lacks merit. (See Dkt. 15 at 2-3.) Under Teague, "a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government." Teague v. Lane, 489 U.S. 288, 301 (1989). Put another way, "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id.; Whorton v. Bockting, 549 U.S. 406, 416 (2007). Contrary to petitioner's contention, however, Chavis did not announce a "new rule" within the meaning of Teague. Rather, Chavis applied the principles previously set forth in Carey v. Saffold, and asserted that the California Supreme Court "remains free to tell us if . . . we were wrong" about what constitutes a "reasonable" delay under California's indeterminate timeliness rule. See Chavis, 546 U.S. at 199-200. Accordingly, Chavis applies to the instant petition.
Here, petitioner's 155-day delay between the denial of State Petition #1 and the filing of State Petition #2 was substantially longer than the "shorter period[s] of time, 30 to 60 days, that most States provide for filing an appeal to the state supreme court." Id. at 201. Moreover, 155 days is substantially longer than the delays of 115 and 101 days which the Ninth Circuit held to be "unreasonable" in Chaffer. See ...