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Scott v. Haviland


July 20, 2010


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254 challenging a Board of Parole Hearings (Board) 2007 parole denial.*fn1 Originally sentenced to a 25-year to life term for first degree murder in 1990, with an additional two-year term for use of a firearm, petitioner raises eight grounds challenging the decision. Petition, pp. 2, 7-59.

Pending before the court is respondent's motion to dismiss the petition as untimely, filed on December 30, 2009. After careful consideration, the court must recommend the motion be denied.

Motion to Dismiss

As noted, respondent moves for dismissal of this action contending that the petition is untimely under AEDPA.

The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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 retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

The statute of limitations for habeas petitions challenging parole suitability hearings is based on § 2244(d)(1)(D), i.e., the date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence. Redd v. McGrath, 343 F.3d 1077 (9th Cir. 2003). At the time the Ninth Circuit decided Redd, suitability decisions could be administratively appealed. Id. at 1084. In Redd, the Ninth Circuit held that the factual basis of the petitioner's claims challenging a parole suitability hearing could have been discovered through the exercise of due diligence when the Board denied the administrative appeal. Id.

Since Redd, the administrative review process for parole suitability hearings has been eliminated. According to the transcript from the August 14, 2007, initial parole consideration hearing, the decision finding petitioner unsuitable was to become final on December 12, 2007. See Exhibit (Exh.) A of exhibits lodged in this court on November 9, 2009 (apparently lodged initially in the Central District with the filing of the petition, Docket # 12). Accordingly, petitioner had one year from December 12, 2007, to file a timely federal petition. The instant action, filed, by liberal application of the mailbox rule, on September 27, 2009,*fn2 is not timely unless petitioner is entitled to statutory or equitable tolling.

Respondent argues that the statute of limitations ran from the date of the hearing, i.e., August 14, 2007, rather than from the date it became final on December 12, 2007, because petitioner was present at the parole hearing and therefore was aware of the factual predicate for his claim. This argument, however, is not persuasive because "[t]he challenge to the Board's decision must be viewed as a whole and not based on certain factual events therein." Faatiliga v. Hartley, CIV S-09-2039 LJO DLB P, 2010 WL 728552 at *3 (E.D. Cal. March 1, 2010).

Under the rationale of Redd, petitioner could not have known the factual predicate of his claim unless and until the decision becomes final. See Redd v. McGrath, 343 F.3d at 1084 (statute of limitations begins to run when administrative decision becomes final); see also Banks v. Kramer, 2009 WL 256449 *1 (E.D.Cal. 2009); Tidwell v. Marshall, 620 F.Supp.2d 1098, 2009 WL 1537960 (C.D.Cal. 2009); Feliciano v. Curry, 2009 WL 691220 (N.D.Cal. 2009); Ramirez-Salgado v. Scribner, 2009 WL 211117 (S.D.Cal. 2009).

Faatiliga, supra, 2010 WL 728552 at *3.*fn3

Under AEDPA, the period of limitation is tolled while a "properly filed" application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d)(2). Petitions are properly filed so long as there was no unreasonable delay between the petitions, and if each petition is properly filed, then a petitioner is entitled to a tolling of the statute of limitations in the intervals between a lower court decision and the filing of a petition in a higher court during one complete round of appellate review ("interval tolling"). See Evans v. Chavis, 546 U.S. 189, 193-194, 198, 126 S.Ct. 846 (2006).

The Supreme Court has explained that in order for a state habeas petition to be "properly filed" for purposes of statutory tolling, the petition's delivery and acceptance must be in compliance with the laws and rules governing such filings. Pace v. DiGuglielmo, 544 U.S. 408, 413-14, 125 S.Ct. 1807 (2005). "[T]ime limits, no matter their form, are 'filing' conditions." Pace v. DiGuglielmo, 544 U.S. at 417, 125 S.Ct. at 1814. "When a post-conviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2)." Id. at 414, 125 S.Ct. at 1812. Under such circumstances, the petitioner is not entitled to statutory tolling. Id. at 417, 125 S.Ct. at 1814.

Respondent relies on the dates petitioner has provided within his federal petition for the filing of his state court petitions. MTD, p. 2, footnote 1. The decision denials are included within the lodged record. According to the parties, therefore, petitioner filed his state court petition in superior court challenging the Board's 2007 decision on October 10, 2008, which petition was denied on December 10, 2008. MTD, p. 2, citing petition (PTN), p. 4; Ex. M, superior court denial. Thereafter, petitioner filed his state appellate court petition on January 20, 2009, which was denied on January 28, 2009. MTD, p. 2, citing PTN at 4; Opposition (Opp.), p. 1; Ex. N, state appellate court denial. The state supreme court petition was filed on March 4, 2009, and denied on August 26, 2009. MTD, p. 2, citing PTN at 4-5; Ex. O, state supreme court denial. Petitioner filed the instant petition, as noted, on September 27, 2009.

Respondent argues that petitioner had only until August 16, 2008, to file his federal petition but did not even start the state court review process until about fifty-five days beyond the expiration of the one-year AEDPA deadline, citing, inter alia, Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003), for the proposition that there is no statutory tolling if the one-year statute of limitations under AEDPA has expired before the state court review process has been commenced. MTD, p. 3. However, this argument is based on the faulty premise that the statute began to run before the administrative decision was final, which contention the court, as noted, rejects.

For clarity, the court will chart the dates and time intervals:

1) Parole decision denial final -- on Dec. 12, 2007 One-year statute begins to run the next day*fn4

2) state superior court habeas petition filed -- on Oct. 10, 2008 303 days of the 365-day statutory filing period have passed leaving 62 days remaining to run on the statute Superior Court petition denied on Dec. 10, 2008

3) 41 days later, state Court of Appeal petition---filed on January 20, 2009 Denied on January 28, 2009

4) 35 days later, state Supreme Court habeas petition--- filed on March 4, 2009 Denied on August 26, 2009

5) 32 days later, the instant federal petition - filed on Sept. 27, 2009.

Because petitioner filed his petition in the state superior court before the expiration of AEDPA, he is correct that he is entitled to statutory tolling from the date he filed that petition on October 10, 2008, to the date the California Supreme Court denied his petition on August 26, 2009. Opp., p. 2. In other words, petitioner is entitled to interval tolling for the time between when the superior court denied his petition and when he filed his petition in the California Supreme Court because there was little more than a 30-day gap between each level of state court filing. Adding the remaining 62 days following the date of the state supreme court habeas denial signifies that the statute of limitations would have run on October 27, 2009. The instant action, filed September 27, is therefore timely. The motion to dismiss should be denied.

Accordingly, IT IS HEREBY RECOMMENDED that respondent's motion to dismiss the petition as untimely, filed on December 30, 2009 (docket # 17), be denied and respondent be ordered to file an answer to the petition.

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 fourteen 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 reply to the objections shall be served and filed within fourteen 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).

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