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Clarence Randle v. Board of Prison Terms

February 14, 2011



Petitioner is a county prisoner seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents move to dismiss on the ground that this action is untimely and fails to allege sufficient facts to state a federal habeas claim. To the extent petitioner bases his request for relief on alleged violations of state law, respondents seek dismissal of those state law claims. Alternatively, respondents move for a more definite statement under Federal Rule of Civil Procedure 12(e). For the reasons explained below, respondents have not shown the petition to be untimely. However, the petition lacks sufficient factual specificity, as it is currently impossible to determine precisely what actions by respondents the petitioner is challenging in the instant petition. Further, to the extent petitioner claims that the Ninth Amendment, various state-law provisions, and biblical law have been violated, such claims are not viable and should therefore be dismissed. Accordingly, the undersigned recommends that respondents' motion to dismiss be granted as provided below.

I. Background*fn1

After serving a prison sentence on a domestic violence conviction, petitioner was released on parole in 2006 subject to a special condition that he not contact his wife (hereinafter, the "no-contact condition"). Am. Pet., Dckt. No. 10, at 3-4 & Ex. C; Supp. Exs., Dckt. No. 8, Ex. B. Petitioner has been charged with violating that condition and re-incarcerated numerous times. Supp. Exs. No. 8, Ex. B; Am. Pet. at 4. Most recently, the no-contact condition was reimposed upon petitioner's release in February or March of 2009, and petitioner was given an 8-month sentence after having been found to have violated the condition on May 27, 2009. Supp. Exs., Ex. B; Am. Pet. at 4. In the instant petition, petitioner alleges that the no-contact condition was invalid as violative of the 1st, 5th, and 9th Amendments to the federal Constitution, and thus respondents unlawfully revoked his parole based on his violation of the allegedly invalid condition. Am. Pet. at 5, 9; Mem., Dckt. No. 7, at 1-3; "Complaint," Dckt. No. 5, at 1-2.

II. Statute of Limitations

As a threshold matter, respondents argue that the petition is time-barred. A one-year limitation period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).

There is no tolling of this one-year period "from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). However, once a petitioner properly files a state post-conviction application the period is tolled, and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). "[A]n application is properly filed when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002).

Finally, a federal habeas petition does not toll the limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

The one-year limitations period may, in some circumstances, be subject to equitable tolling. The United States Supreme Court has recognized that a habeas petitioner "seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In light of this pronouncement, the Ninth Circuit has clarified its own standard as follows:

The threshold for obtaining equitable tolling is very high, but it applies where a petitioner shows that despite diligently pursuing his rights, some extraordinary circumstance prevented him from timely filing.

Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner has the burden of showing facts entitling him to equitable tolling. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).

Respondents contend that the limitations period on petitioner's claims began to run on June 7, 2006, the day after the no-contact condition was initially imposed on him, because that is the date that the factual predicate of petitioner's claims could have been discovered under § 2244(d)(1)(D). Thus, respondents argue, the time to file the instant petition expired on June 7, 2007, and the petition -- filed on May 19, 2009 and amended November 24, 2009 -- is untimely.

It does appear that petitioner may wish to challenge the legality of each of five revocations (dated September 18, 2006, August 7, 2007, February 8, 2008, June 5, 2008, and May 7, 2009*fn2 ), as he requests that the court order respondents to subtract the time he has spent incarcerated due to each revocation from his controlling discharge date. Am. Pet. at 16. As some of these actions occurred more than a year before the date the petition was filed, some of the claims for relief may be barred by the limitations period. However, the no-contact condition was reimposed on petitioner, and his parole revoked for violation thereof, less than one year before the filing of the petition (in March and May of 2009, respectively). Respondents have cited no authority for the proposition that the limitations period under AEDPA begins to run when a parole condition is initially imposed, rather than when it is later reimposed or when parole is actually revoked.*fn3 Nor have respondents exposited any argument supporting that position. Thus, respondents have not shown that petitioner's claims that the no-contact condition is unconstitutional and that the revocation(s) of parole occurring within one year prior to the filing of the petition were thus unlawful are time-barred. Accordingly, the petition should not be entirely dismissed as untimely.

III. The Amended Petition Fails to State Sufficient Facts

Respondents next argue that the petition fails to state facts sufficient to state a claim for federal habeas relief, because "he does not state any facts regarding how his rights were violated," including "facts regarding the alleged contact with his wife, a parole revocation hearing or what transpired, or even on what basis his federal rights were violated during such a hearing." Resps.' Mot. to Dism., Dckt. No. 26, at 4. The court has reviewed the amended petition and concludes that it apprises respondent of much of the basis of petitioner's claims, clearly alleging that the imposition of the no-contact condition violated the 1st, 5th, and 9th Amendments to the federal Constitution and the revocation of parole based thereon was therefore unlawful. Dckt. No. 10, Am. Pet. at 3-5, 9. Petitioner raises no challenge to the procedures employed at his revocation hearing; rather he claims that the revocation was unlawful ...

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