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Burgoon v. Haviland

July 12, 2010

LARRY LEE BURGOON, PETITIONER,
v.
J. HAVILAND, RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therein, petitioner challenges the July 20, 2006 decision of the California Board of Parole Hearings finding him unsuitable for release on parole. Before the court is respondent's motion to dismiss the petition as untimely. Petitioner has filed an opposition to the motion.

PROCEDURAL BACKGROUND

On March 22, 2006, the California Board of Parole Hearings (hereinafter "Board") conducted a subsequent parole consideration hearing to determine petitioner's suitability for parole. (Mot. to Dismiss (Doc. No. 7), Ex. 1 at 1.) On July 20, 2006, the Board's decision denying parole became final. (Id., Ex. 1 at 84.)

On December 12, 2006, petitioner signed a petition for writ of habeas corpus and filed it on December 19, 2006, with the Orange County Superior Court. (Id., Ex. 2.) On November 19, 2007, that habeas petition was denied on the merits in a reasoned order. (Id., Ex. 3.) On July 3, 2008, petitioner filed a habeas petition with the California Court of Appeal for the, Fourth Appellate District. (Id., Ex. 4.) On July 24, 2008, the petition was denied. (Id.) On October 9, 2008, petitioner filed a habeas petition with the California Supreme Court. (Id., Ex. 5.) On April 15, 2009, the petition was denied. (Id.)

On September 25, 2009, petitioner signed his federal habeas petition now pending before this court. (Doc. No. 1.) The petition was filed with this court on September 28, 2009.

THE ARGUMENTS OF THE PARTIES

Respondent moves to dismiss the pending federal petition, arguing that it is untimely because of petitioner's delay in seeking habeas relief in both the state courts and before this court. Specifically, respondent argues that petitioner is not entitled to statutory tolling of the applicable one-year statute of limitations for the filing of a federal habeas petition during the following gaps of time: (1) the four months following the date the Board's decision to deny parole became final and the filing of petitioner's first state habeas petition; (2) the eight month period following the Orange County Superior Court's denial of petitioner's first state habeas petition and his filing of the habeas petition with the California Court of Appeal; and (3) the five month period following the denial of his habeas petition by the California Supreme Court and the filing of his federal habeas petition. According to respondent, those gap periods during which petitioner was not entitled to statutory tolling of the one-year statute of limitations total almost eighteen months. Therefore, respondent contends in summary fashion, petitioner's federal habeas petition was filed approximately six months after the statute of limitations for doing so had expired.

Petitioner opposes the motion to dismiss, asserting that his state habeas petitions were properly filed within a reasonable period of time and with all due diligence. With respect to his diligence, petitioner states that his habeas petition filed in the Orange County Superior Court was prepared on his behalf by a jailhouse lawyer, that his petition filed in the California Court of Appeal was prepared by a State Public Defender, and that his habeas petition to the California Supreme Court was also prepared by a jailhouse lawyer. Petitioner notes that the longest delay between petitions filed in state court was following the Superior Court's denial of relief. However, petitioner argues that during that period the State Public Defender was working on the petition for filing with the California Court of Appeal and he had "absolutely no control" over the attorney. (Opp'n at 3.) Finally, petitioner argues that he is entitled to statutory tolling of the applicable limitations period for one complete round of review in state court which covers the period from the date the parole decision became final to the date the California Supreme Court filed its decision denying habeas relief. Petitioner argues that under this calculation his federal habeas petition was timely filed.

STATUTE OF LIMITATIONS UNDER THE AEDPA

Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244 provides as follows:

(d) (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 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 ...


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