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Benyamini v. Walker

November 4, 2010

ROBERT BENYAMINI, PETITIONER,
v.
JAMES WALKER, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus challenging the loss of good time credits following a 2005 disciplinary proceeding. Respondent has moved to dismiss on the ground that the petition is untimely.

The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a statute of limitations for filing a federal habeas petition:

(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.

(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.

In Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir. 2003), the Ninth Circuit recognized that it is § 2241(d)(1)(D) that governs the statute of limitations in habeas petitions challenging administrative decisions. It further explained that the triggering date is determined by inquiring when Redd could have learned of the factual basis for his claim through the exercise of due diligence. This occurred when the Board denied Redd's administrative appeal on December 7, 1998. Consequently, the limitations period began to run on the next day.

Id. at 1084; see also Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004).

In this case, the internal grievance process was completed on July 20, 2006, when the Director's Level Decision was issued. Motion To Dismiss (MTD) (Docket No. 14-1) at 18.*fn1

As plaintiff has not suggested there was any delay in his receipt of this determination, the triggering date for the statute is July 21, 2006. Without any tolling, the limitations period expired on July 21, 2007.

Petitioner did seek habeas relief from the state courts. His first petition does not have a proof of service, but is dated August 17, 2006.*fn2 MTD (Docket No. 14-2) at 7. This petition was sent to the Sacramento County Superior Court, which stamped it "July 30, 2007." Id. at 2.*fn3 Neither party has provided legal mail logs throwing any light on the actual mailing date; respondent assumes that the petition was not actually mailed until ...


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