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Arsen Asatryan v. Terri Gonzalez

December 22, 2010

ARSEN ASATRYAN, PETITIONER,
v.
TERRI GONZALEZ, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. George H. WU United States District Judge

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION AND SUMMARY

On January 19, 2010, Petitioner Arsen Asatryan ("Petitioner"), a California prisoner incarcerated at California Men's Colony and proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254.

On May 5, 2010, Respondent filed a Motion to Dismiss the Petition ("Motion"), asserting that the Petition is barred by the one-year statute of limitation set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1). On June 2, 2010, Petitioner filed an Opposition to the Motion ("Opposition"). Respondent did not file any reply.

On September 23, 2010, the Magistrate Judge issued his Report and Recommendation ("R&R"), recommending that Respondent's Motion be granted and that judgment be entered dismissing this action with prejudice. (See R&R at 2, 11.) On October 18, 2010, Petitioner filed Objections to the R&R ("Objections"). Notably, the Objections raised new facts and sought equitable tolling of the statute of limitation.*fn1 On October 22, 2010, the Magistrate Judge directed Respondent to file a response to the Objections. On October 29, 2010, Respondent filed a Response to Petitioner's Objections ("Response"). On November 15, 2010, Petitioner filed a Reply to Respondent's Response.

Now, having conducted a de novo review, including studying the Motion, the Opposition, the R&R, the Objections, the Response, and the Reply, the Court is persuaded that the Petition is untimely and Petitioner failed to establish, as is his burden, the right to equitable tolling. This Court, therefore, adopts the findings, conclusions, and recommendations of the Magistrate Judge.

II. DISCUSSION AND ANALYSIS

Without unnecessarily rehashing the R&R, the pivotal issue at this juncture is when Petitioner submitted a writ of habeas corpus to the California Supreme Court under the "mailbox rule."*fn2 That date is either June 28, 2009 or July 21, 2009. That operative date determines whether this action is timely or not.

Petitioner contends that the state habeas petition was submitted on June 28, 2009. Petitioner's sole evidentiary support is his own word. Petitioner claims that his petition "was given to his tier officer" on that date. (Objs. at 2.)

Respondent, on the other hand, counters that the Petition was not submitted until approximately three weeks later, on July 21, 2009. Respondent's evidentiary support is the prison mail log, which reflects that the petition was mailed out on July 21, 2009. (Resp. at 1.)

In rebuttal, Petitioner argues that he is entitled to equitable tolling for that 23-day span, i.e., the time between June 28, 2009 and July 21, 2009. Petitioner asserts two reasons for equitable tolling. Petitioner claims he "had absolutely no control over when or how his tier officer turned over [his state habeas petition to the California Supreme Court]." (Objs. at 3.) Second, Petitioner notes that "Respondents failed to provide the Court with a copy of the envelope that was sent to the California Supreme Court[, which] . . . would show the tier officer[']s name and date it was delivered to him." (Id.)

As to the latter, Petitioner explains that his prison had a "processing procedure" where the correctional officer would, upon receipt of any outbound mail, examine the mail for contraband and, assuming none existed, sign and date the envelope. (Objs. at 2.) The Magistrate Judge ordered Respondent to submit that envelope for examination. Respondent attempted to unearth that envelope, but "according to the clerk of the court, the California Supreme does not retain the envelopes of the petitions for writ of habeas corpus that it receives." (Resp. at 1.)

Under these circumstances, including the record before this Court and the binding precedent of the Ninth Circuit, the Court concludes that the operative mailing date was July, 21, 2009 and, therefore, the instant Petition is untimely. Three reasons guide this Court's determination.

First, Respondent submitted "strong" evidence of the mailing date. In this Circuit, it is well established that the "prison's log of outgoing mail provides strong evidence of the date [the petitioner] handed over his petition." See Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir. 2001) (emphasis added); Kimbro v. Warden, 2009 WL 3255303, at *1 n. 1 (E.D. Cal. 2009) (state petition deemed filed on the date petitioner placed the ...


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