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Montalvo v. Malfi

November 19, 2010

JOHN MONTALVO, PETITIONER,
v.
MALFI, ACTING WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He alleges he was sentenced under California's former Indeterminate Sentencing Law (ISL) because his crime was committed in 1976, but that the parole board has refused to convert his sentence to conform to the Determinate Sentencing Law (DSL); that his sentence violates the Eighth Amendment; and that applying newer parole guidelines, rather than those applicable to ISL sentences, violates the Ex Post Facto Clause of the Constitution. In his answer, respondent argues that the petition is untimely and that petitioner's claims should be denied on their merits.*fn1

Petitioner has also filed a document he calls "motion for judicial motion" concerning mail delivery and an affidavit detailing additional problems with legal mail.

I. Problems With Mail Delivery

Plaintiff alleges the delivery of legal mail from this court was delayed and that he did not place sufficient postage on the copy of the traverse he mailed to respondent, but did not learn it had been returned until two months after he had mailed it. It appears that the communication from the court was a response to petitioner's request for a copy of the docket sheet; petitioner has not suggested that his pursuit of the merits of his petition was hampered by any delay in the receipt of this information. Moreover, respondent received a copy of the traverse when it was docketed by operation of this court's ECF system. Whatever problems petitioner has had with his legal mail have had no impact on this case.

II. Background

In 1984, petitioner was convicted of first degree murder and found to have used a firearm. Traverse at 10.*fn2 Because the offense occurred in 1976, before California's adoption of its DSL, when petitioner was sentenced in early 1985 he was sentenced under the ISL to the term prescribed by that law. Id. at 9; Pet. at 7.

In February 2006, petitioner sought habeas relief from the San Francisco County Superior Court. Answer, Ex. 1. On April 12, 2006, the Superior Court denied the writ, finding it was untimely and that petitioner was not entitled to have a determinate term set. Id., Ex. 2. Petitioner pursued habeas relief unsuccessfully in the California Court of Appeal and California Supreme Court. Id., Exs. 3-6.

III. Timeliness And The AEDPA

In the findings and recommendations on the motion to dismiss, this court reasoned that respondent had not identified when petitioner's claims arose, which would provide the triggering date for the statute of limitations, and so had not borne his burden of showing that the instant petition was filed outside the statute. Docket No. 39. In the Answer, respondent takes February 2006, when the petition was filed in the Superior Court, as the date petitioner became aware of his claims and argues that the instant petition, filed in the Northern District on December 25, 2007,*fn3 is not timely.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), (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 ...


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