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Fernandez v. Felker

November 19, 2010

FELICIANO FERNANDEZ, PETITIONER,
v.
T. FELKER, 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, challenging the October 24, 2006 decision of the California Board of Parole Hearings ("Board") to deny him parole. On March 10, 2010, the undersigned ordered respondent to file and serve a response to the petition. On May 10, 2010, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed an opposition to the motion.

BACKGROUND

On October 24, 2006, the Board conducted a parole hearing and found petitioner unsuitable for release on parole. Petitioner filed four petitions for writ of habeas corpus in state court, challenging the Board's decision. Applying the mailbox rule*fn1 , on April 26, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Fourth Appellate District. On May 24, 2007, the Court of Appeal denied that petition. On or about July 12, 2007, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On January 3, 2008, the California Supreme Court denied that petition, citing People v. Duvall, 9 Cal. 4th 464, 474 (1995). On October 5, 2008, petitioner filed a second petition for writ of habeas corpus in the California Supreme Court. On April 1, 2009, the California Supreme Court denied that petition "for failure to provide the full transcript of the 2006 parole suitability hearing" and again cited the decision in Duvall. Finally, on or about June 4, 2009, petitioner filed a third petition for writ of habeas corpus with the California Supreme Court. On October 22, 2009, the court summarily denied that petition without comment or citation. (Pet. at 114-116, Resp't's Mot. to Dismiss Exs. A-G.)

On February 28, 2010, petitioner commenced this action by filing a federal petition for writ of habeas corpus with this court.

RESPONDENT'S MOTION TO DISMISS

Respondent moves to dismiss the pending habeas petition, arguing that it is time-barred. Specifically, respondent argues that the Board's decision to deny petitioner parole became final on February 21, 2007, and petitioner had one year thereafter in which to file a federal habeas petition challenging that decision. (Resp't's Mot. to Dismiss at 3.)

Respondent acknowledges that the proper filing of a state post-conviction application presenting the pertinent claims tolls the statute of limitations period. However, respondent contends that seventy-five days of the limitations period elapsed before petitioner filed his first habeas petition in the California Court of Appeal. In addition, respondent contends that petitioner is only entitled to statutory tolling from the time he filed that first petition in the California Court of Appeal through the date on which the California Supreme Court denied his first habeas petition in that court on January 3, 2008. After the California Supreme Court issued that denial, respondent argues the limitations period for the filing of a federal habeas petition began running again. By the time petitioner filed his federal habeas petition, respondent contends, the AEDPA statute of limitations had long since expired. (Resp't's Mot. to Dismiss at 3-4.)

PETITIONER'S OPPOSITION

In opposition to respondent's motion to dismiss, petitioner argues that he is entitled to statutory tolling for the entire period of time that his three habeas petitions were pending before the California Supreme Court because each were "properly filed." In addition, petitioner argues that he is entitled to equitable tolling of the AEDPA statute of limitations because he was housed in a maximum security unit for months after being the victim of an attempted murder and did not have access to the prison law library or to his legal work during that time. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 6, 12-17.)

ANALYSIS

I. The AEDPA Statute of Limitations

On April 24, 1996, Congress enacted AEDPA which amended 28 U.S.C. § 2244 by adding the following provision:

(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 ...


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