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Nivette v. Marshall

October 25, 2010

JAMES D. NIVETTE, PETITIONER,
v.
JOHN MARSHALL, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 2, 2010, the undersigned ordered respondent to file and serve a response to the petition. On May 17, 2010, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition fails to state a cognizable claim for relief and is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed an opposition to the motion. Respondent has not filed a reply.

BACKGROUND

On August 25, 2003, petitioner pled guilty to second-degree murder with the use of a firearm in the Sacramento County Superior Court. On September 22, 2003, the court entered judgment and sentenced petitioner to eighteen years to life in state prison. Petitioner did not appeal from the judgment of conviction, but he did subsequently file two state habeas petitions challenging his judgment of conviction. In this regard, on November 30, 2004, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court which was denied on January 4, 2005. On July 5, 2005, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was denied on June 14, 2006.

On April 20, 2007, petitioner challenged his conviction in this court. See Nivette v. Marshall, No. CIV S-07-0759 LKK DAD P.*fn1 In that habeas action, the court dismissed petitioner's federal habeas petition, finding that it was time-barred by the AEDPA statute of limitations. See No. CIV S-07-0759 LKK DAD P, Doc. Nos. 19 & 21. Petitioner appealed and the Ninth Circuit affirmed the judgment. See Nivette v. Yates, No 08-16426 (9th Cir. July 2, 2010). In affirming, the Ninth Circuit held that this court properly rejected petitioner's claim for equitable tolling because he failed to show that any mental disabilities he suffered from constituted an extraordinary circumstance, and he failed to present sufficient evidence to warrant an evidentiary hearing. Id.

In the habeas petition now pending before the court, petitioner claims that California courts and the California Department of Corrections and Rehabilitation ("CDCR") have improperly applied California Penal Code § 2933.1 to him. Specifically, petitioner explains that at his sentencing on September 22, 2003, the Sacramento County Superior Court erroneously calculated his credits based on a fifteen percent earning rate. Similarly, petitioner explains that upon entering CDCR's custody on October 6, 2003, prison officials erroneously assigned him a fifteen percent credits earning rate. Petitioner argues that he is entitled to earn credits at a thirty-three percent earning rate. Petitioner alleges that he learned that he "qualified" for credits at a thirty-three percent earning rate on January 15, 2007, and shortly thereafter sought redress through the prison administrative grievance process. Having not obtained relief, on August 4, 2008, petitioner contends that he filed a petition for writ of habeas corpus with the California Supreme Court. On February 18, 2009, the court denied his petition. (Pet. Attach. 1-3 & Exs. AD, Resp't's Mot. to Dismiss Exs. C-D.)

Under the mailbox rule*fn2 , on April 23, 2009, petitioner commenced this action by filing a federal petition for writ of habeas corpus.

RESPONDENT'S MOTION TO DISMISS

I. Respondent's Motion

Respondent moves to dismiss the pending petition, arguing that it fails to state a cognizable claim for relief. Specifically, respondent contends that petitioner's claims are based on a misapplication of the California Penal Code and that any alleged violation of state law in calculating a prisoner's time credits is not cognizable in federal habeas corpus proceedings. (Resp't's Mot. to Dismiss at 3-4.)

Respondent also argues that petitioner's claims are time-barred and that his petition should be dismissed. Respondent contends that petitioner knew or should have known of the "factual predicate" of his claims at the time of his sentencing on September 22, 2003, so the one-year statute of limitations for the filing a federal habeas petition began to run the following day, on September 23, 2003, and expired one year later on September 22, 2004. (Resp't's Mot. to Dismiss at 4-5.)

Respondent acknowledges that the proper filing of a state post-conviction application challenging a judgment of conviction tolls the one-year statute of limitations period. However, according to respondent, in this case petitioner did not file his petition for writ of habeas corpus with the California Supreme Court until 2008, long after the statute of limitations for the filing of a federal habeas petition had expired. (Resp't's Mot. to Dismiss at 5.)

II. Petitioner's Opposition

In opposition to respondent's motion to dismiss, petitioner argues that his petition now pending before this court contains valid constitutional claims, including claims under the Ex Post Facto Clause and the Fourteenth Amendment. If the court decides these claims in his favor, petitioner contends, he will be that much closer to receiving a parole hearing date. In addition, petitioner argues that even the California Supreme Court can make errors and that federal oversight is necessary to remedy such errors. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 8-11.)

Petitioner also argues that court should equitably toll the AEDPA statute of limitations for seeking federal habeas relief in this case from November 21, 2003 to April 20, 2007, because of his mental incompetence during this period. In this regard, petitioner contends that he was taking psychotropic drugs prior to, during and after his trial in state court. Petitioner argues that although upon entering the state prison system, he stopped taking the medications, he ...


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