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Bernal v. Sandor

May 12, 2010

HECTOR BERNAL, PETITIONER,
v.
GARY SANDOR, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Nita L. Stormes United States Magistrate Judge

REPORT AND RECOMMENDATION GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [Doc. No. 9.]

Hector Bernal, a California prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging a 2002 prison disciplinary adjudication finding him guilty of trafficking a controlled substance in prison.*fn1 Bernal contends he was denied his constitutional rights to due process and a fair hearing during the administrative proceedings. (Petition "Pet." at 6a.) Respondent has filed a Motion to Dismiss the Petition as time-barred under 28 U.S.C. § 2244(d). (Resp.'s Mem. of P. & A. at 3-6.) After a thorough review, the Court RECOMMENDS that Respondent's Motion be GRANTED and the Petition be DISMISSED with prejudice as untimely.

RELEVANT PROCEDURAL HISTORY

On October 24, 2002, a senior prison disciplinary official found Bernal guilty of violating California Code of Regulations, title 15, § 3016(c), specifically Trafficking of Controlled Substances. [Lodg. No. 3 at 2.] Bernal was assessed 180 days behavior time credit forfeiture, 90 days loss of privileges, a year of random drug testing, 90 days loss of visits and 90 days of non-contact visits. [Id.] He did not pursue an administrative appeal of the disciplinary decision. [Lodg. No. 5, Pet. at 4c.]

On February 1, 2009, almost seven years after the prison disciplinary proceedings, Bernal filed a habeas petition in state Superior Court alleging, among other things, that the original guilty finding of trafficking in 2002 lacked the requisite showing of a preponderance of the evidence. (Lodg. No. 5, at 3a-4d). On February 11, 2009, the court denied the petition finding there was some evidence to support the 2002 drug trafficking finding. [Lodg. No. 6 at 1].

On February 28, 2009, Bernal filed a habeas petition in the Court of Appeal, reasserting the claims he made in his state habeas petition. [Lodg No. 7.] On March 17, 2009, the court denied the petition without comment. [Lodg. No. 8.] On April 13, 2009, Bernal filed a petition for review with the California Supreme Court, which was summarily denied on June 10, 2009. [Lodg. Nos. 9 & 10.]

On October 2, 2009, Bernal filed the Petition for Writ of Habeas Corpus now before this Court. The Petition raises a due process challenge to the 2002 prison disciplinary finding of guilt for drug trafficking. [Id. at 6a.]

DISCUSSION

Bernal's Petitionfails to meet the threshold requirement of timeliness, thus the Court's discussion addresses only the issue of the applicable statute of limitations. White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002).

Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year statute of limitations for filing a federal habeas petition by a person in custody pursuant to the judgment of a State court. 28 U.S.C. § 2244(d)(1); Allen v. Siebert, 552 U.S. 3, 4 (2007). This one-year time limit also applies to petitions challenging an administrative decision, including those issued pursuant to a prison disciplinary proceeding. Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004); Redd v. McGrath, 343 F.3d 1077, 1081-83. In Redd, the court stated the section of AEDPA applicable to petitions challenging such administrative decisions is subsection 2244(d)(1)(D). The relevant section 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--

(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 ...


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