IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 9, 2010
KEVIN LANCE WILLIAMS, PETITIONER,
CLAUDE E. FINN, RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Respondent moves to dismiss the petition for writ of habeas corpus filed by petitioner, a state prisoner who proceeds without counsel in this action filed pursuant to 28 U.S.C. § 2254.*fn1 On May 26, 2010, this court directed petitioner to file supplemental briefing, which petitioner timely filed on June 3, 2010. Respondent was given the opportunity to respond, but did not file a reply.
Pursuant to his petition for writ of habeas corpus filed June 15, 2009,*fn2 petitioner challenges the 2006 and 2007 decisions of the California Board of Parole Hearings denying petitioner parole. Respondent filed a motion to dismiss on September 2, 2009, based on the contention that the petition is barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1). (Dkt. No. 16.) For the following reasons, the court recommends that respondent's motion be denied.
AEDPA's one-year statute of limitations, set forth in 28 U.S.C. § 2244,*fn3 "applies to all habeas petitions filed by persons in 'custody pursuant to the judgment of a State court,' even if the petition challenges an administrative decision rather than a state court judgment." Shelby v. Bartlett, 391 F.3d 1061, 1062 (9th Cir. 2004) (citation omitted); see also Redd v. McGrath, 343 F.3d 1077, 1080-83 (9th Cir. 2003) (assuming without deciding that the AEDPA statute of limitations applies to collateral attacks on parole board decisions). When a habeas petitioner challenges an administrative decision, § 2244(d)(1)(D) governs the date on which the one-year limitation period begins to run. Shelby, 391 F.3d at 1066; Redd, 343 F.3d at 1081-83. Thus, the limitation period begins to run on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence," 28 U.S.C. § 2244(d)(1)(D), or in this context, the date of the Board's final decision. See Redd, 343 F.3d at 1084-85; Shelby, 391 F.3d at 1065-66.*fn4
Generally, this limitation period is statutorily tolled from the filing date of the first state habeas petition until the California Supreme Court rejects the final collateral challenge. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999); see 28 U.S.C.§ 2244(d)(2) (period tolled during the pendency of a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim").
In addition, equitable tolling is available "when extraordinary circumstances beyond a prisoner's control make it impossible" to timely file the federal petition. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal quotation marks and citations omitted). "That determination is highly fact-dependent and [petitioner] bears the burden of showing that equitable tolling is appropriate." Id. The Ninth Circuit has stated that, because of Congress's desire to speed up the federal habeas process, this standard presents a "high hurdle" for petitioners. Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1289 (9th Cir. 1997) overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998). "A petitioner must show that his untimeliness was caused by an external impediment and not by his own lack of diligence." Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007), citing Roy v. Lampert, 465 F.3d 964, 973 (9th Cir. 2006); see also Shannon v. Newland, 410 F.3d 1083, 1090 (9th Cir. 2005) (observing that in each of the cases in which equitable tolling has been applied the requisite "extraordinary circumstances" have been based on the "wrongful conduct" of another that "actually prevented the prisoner from preparing or filing a timely habeas petition").
Respondent contends that the instant petition is necessarily untimely because more than one year passed between the California Supreme Court's denial of review on June 11, 2008,*fn5 and the date petitioner filed the instant petition on June 15, 2009, and that there is no basis for equitable tolling. Thus, respondent does not frame his statute of limitations contention commencing with the operative date of the Board's decision (the "factual predicate" described in 28 U.S.C. § 2244(d)(1)(D)), but argues that such analysis is unnecessary.
Petitioner responds that the limitation period should be equitably tolled for the following reasons and periods: (1) petitioner did not receive the June 11, 2008 order of the California Supreme Court until "July 2008" (date not provided); (2) petitioner was housed in administrative segregation from April 23, 2008 through September 11, 2008, and did not received his legal materials until September 20, 2008; (3) petitioner was again placed in administrative segregation on December 4, 2008, and although released to the regular population on December 17, 2008, did not again receive his legal materials until January 2, 2009; (4) petitioner was placed on "out to court" status without access to his legal materials from February 5, 2009 until March 2, 2009, and again from March 17, 2009 until May 7, 2009. (Petitioner's Supplemental Brief (hereafter "PSB"), at pp. 4-5, and attached exhibits.)
The court's analysis herein is premised on the factual predicate of the Board's parole decisions for which the following chronology is relevant:
1. Petitioner is serving a prison sentence of 17-years-to-life based on a second-degree homicide conviction and firearm enhancement. (Petition, Dkt. No. 1, at 2, 9.)
2. The Board of Parole Hearings denied petitioner parole on March 23, 2006, indicating that the decision would be final on July 21, 2006. (Dkt. No. 1, Exh. A.) Petitioner challenged the ruling by filing a petition for writ of habeas corpus in the Los Angeles Superior Court on December 5, 2006. (Id., Exh. M.)
3. During the pendency of his writ in superior court, petitioner was again denied parole on February 22, 2007 (id.), which became final ninety days thereafter, on May 23, 2007. On July 9, 2007, petitioner filed a supplemental brief in superior court, thus challenging both Parole Board decisions. (Id.)
4. The California Supreme Court denied review on June 11, 2008. (Dkt. No. 1, at 4.)
5. Petitioner filed the instant petition for writ of habeas corpus on June 15, 2009. Calculating the commencement of AEDPA's one-year limitation period relative to the Parole Board's 2006 decision on July 21, 2006, when the decision became final (see n. 4 and related text, supra), 137 days lapsed before petitioner filed his first state court habeas petition on December 5, 2006. The limitation period was then statutorily tolled during the pendency of petitioner's state court filings, December 5, 2006 until June 11, 2008, when the California Supreme Court denied review. Petitioner thereafter had, absent equitable tolling, 228 days remaining on the one-year limitation period, or until January 26, 2009,*fn6 to file the instant petition. Petitioner filed this petition on June 15, 2009, more than 4 months thereafter.
Similar timing attaches to petitioner's challenge of his 2007 parole denial. The Parole Board's decision became final on May 23, 2007. Petitioner filed his supplemental brief in superior court on July 9, 2007, 47 days later. When the Supreme Court denied review on June 11, 2008, 318 days remained, absent equitable tolling, within which petitioner could file a federal instant petition, or by April 25, 2009. Petitioner filed the instant petition on June 15, 2009, more than 7 weeks later.
Petitioner first contends that these periods should be equitably tolled because he did not receive the June 11, 2008 order of the California Supreme Court until "July 2008."
As the court noted in its prior order, the Ninth Circuit has held that "'a prisoner's lack of knowledge that the state courts have reached a final resolution of his case can provide grounds for equitable tolling if the prisoner has acted diligently in the matter.'" Ramirez v. Yates, 571 F.3d 993, 997-98 (9th Cir. 2009), quoting Woodward v. Williams, 263 F.3d 1135, 1143 (10th Cir. 2001). To determine whether a petitioner is entitled to tolling under these circumstances, the district court must know the date that petitioner actually received the notice, whether petitioner acted diligently to obtain such notice, and whether the delay of notice contributed to the untimeliness of petitioner's filing. Ramirez, 571 F.3d at 998 (citations omitted).
Petitioner remains unable to identify the date he received the denial of review. He states that he does not have access to the "legal mail log." (Dkt. No. 23, at 7.) He previously implied that the delay was attributable to an institutional failure within the courts or prison system in timely processing or delivering the mail. (Dkt. No. 17, at 4.) However, these matters are now subsumed by petitioner's unrebutted statement that he was placed in administrative segregation from April 23, 2008 through September 11, 2008, and that did not receive his legal materials until September 20, 2008. (PSB at 4, Exh. C, D, E.) This period comprised 150 days, but only 101 days are relevant because they occurred after the June 11, 2008 denial of review by the California Supreme Court. Petitioner has also demonstrated that he was again placed in administrative segregation for the period December 4 to December 17, 2008, but did not receive his property until January 2, 2009, a period of 29 days. (Id. at 4-5, Exh. G, H, I.)*fn7 Finally, petitioner states, substantially supported by the docket in this action, that his legal property remained at Deuel Vocational Institute ("DVI") when he was placed on "Out-To-Court ['OTC'] Status" requiring a transfer to California State Prison-Sacramento ("CSP-S") from February 5, 2009 to March 2, 2009, and was returned to OTC status at CSP-S from March 17, 2009 to May 7, 2009 (a total period of 76 days). (PSB, at 5.)
The Ninth Circuit has held "that a complete lack of access to a legal file may constitute an extraordinary circumstance, and that it is 'unrealistic to expect a habeas petitioner to prepare and file a meaningful petition on his own within the limitations period without access to his legal file.'" Ramirez, supra, 571 F.3d at 998 (quoting Espinoza-Matthews v. California, 432 F.3d 1021, 1027-28 (9th Cir. 2005) (internal alteration and quotations omitted)). The essential inquiry in determining whether a petitioner's lack of access to his legal file warrants equitable tolling is whether such lack of access made a timely filing impossible despite petitioner's diligent pursuit of his rights. Id.
Petitioner's exhibits demonstrate diligence in attempting to obtain his legal materials during the last period of his placement in administrative segregation. The January 5, 2009 letter from Chief Deputy Warden Rackley acknowledged petitioner's December 30, 2008 letter seeking the return of his personal property taken December 4, 2008, states that it had been "necessary to retain control of your property for security reasons" during this period, and noted that petitioner's property had been returned January 2, 2009. (Dkt. No. 23, Exh. I.) Respondent does not challenge this or any other representation of petitioner relative to the periods he asserts he was without his legal materials. Absent refutation of petitioner's representations, the court assumes their accuracy. The court therefore accepts petitioner's representations that he was without his legal property, despite his due diligence in seeking to obtain it, for a total relevant period of 206 days.*fn8 Additionally, it is reasonable to infer that this lack of access rendered it impossible for petitioner to timely file his federal habeas petition absent equitable tolling.
The court therefore finds that petitioner has met his burden of demonstrating entitlement to equitable tolling of AEDPA's one-year statute of limitations based upon his placements in administrative segregation and "out to court" status without access to his legal materials. It is appropriate to equitably toll, for a total period of 206 days, the filing deadlines for petitioner's federal challenges to the Parole Board's 2006 and 2007 decisions, rendering the effective deadlines, respectively, August 20, 2009 (January 26, 2009, plus 206 days), and November 17, 2009 (April 25, 2009, plus 206 days). Thus, petitioner's instant petition for a writ of habeas corpus, challenging both decisions, was timely filed June 15, 2009.
Accordingly, IT IS HEREBY RECOMMENDED that respondent's motion to dismiss (Dkt. No. 16) be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within 14 days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).