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Bernal v. Sandor


May 12, 2010


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


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.


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.]


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 toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1)(D) & (d)(2).

Where an administrative appeal is filed, the "factual predicate" date is the date of the ruling on that appeal. Shelby, 391 F.3d at 1066. In this case, Bernal did not file an appeal but he was given a copy of the guilty finding and consequent change in his prison term and conditions on November 1, 2002. [Lodg. No. 3 at 2.] Thus, the factual predicate of his habeas claim occurred on that date. See id. citing Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003) (limitations period began to run when petitioner learned of change in his parole reconsideration date). The one year time period Bernal had for filing his Petition under AEDPA's statute of limitations expired on November 1, 2003. Because Bernal filed the current Petition six years after the statute of limitations had expired, his Petition is untimely.

Statutory Tolling

The statute of limitations does not run while a "properly filed" state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2). Bernal did not file a state petition during the limitations period between November 1, 2002 through November 1, 2003. He filed his state habeas petition on February 1, 2009, well after the time ran. Nor did the 2009 petition revive the statute of limitations for federal habeas purposes. See Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (a state petition filed well after AEDPA's limitations period ended is an "absolute bar" to raising claims on federal habeas). Thus, Bernal's state petition for a writ of habeas corpus was not a "properly filed application" that would toll AEDPA's the statute of limitations under section 2244(d)(2) above.

Equitable Tolling

Additionally, Petitioner is not entitled to equitable tolling. A litigant seeking equitable tolling must establish: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The determination of whether a petitioner is entitled to equitable tolling is "highly fact-dependent." Espinoza-Matthews, 432 F.3d 1021, 1026 (9th Cir. 2005).

Petitioner has not presented or established any "extraordinary circumstances" that would entitle him to equitable tolling. Pace, 544 U.S. at 418.


Petitioner failed to file his federal habeas petition within the one-year period of limitation imposed by AEDPA. He has also failed to show that he is entitled to statutory or equitable tolling. Therefore, this Court RECOMMENDS that Respondent's Motion be GRANTED and that the Petition be DISMISSED with prejudice.

This report and recommendation is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1).

IT IS SO ORDERED that no later than June 10, 2010, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than June 17, 2010. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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