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Stanley Thermidor v. Ken Clark

July 6, 2011

STANLEY THERMIDOR,
PETITIONER,
v.
KEN CLARK,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE DUE PROCESS CLAIM (Docs. 14, 1, 6) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOCS. 1, 6) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the Respondent's motion to dismiss, which was filed on March 7, 2011. Petitioner filed an opposition to the motion on May 31, 2011. No reply was filed.

I. Consideration of a Motion to Dismiss

Respondent has filed a motion to dismiss the petition on the ground that Petitioner filed his petition outside of the one-year limitation period provided for by 28 U.S.C. § 2244(d)(1). Respondent also argues that Petitioner's claim is not cognizable in a proceeding pursuant to 28 U.S.C. § 2254.

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...."

The Ninth Circuit has allowed respondents to file motions to dismiss pursuant to Rule 4 instead of answers if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss a petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to review a motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). Thus, a respondent may file a motion to dismiss after the Court orders the respondent to respond, and the Court should use Rule 4 standards to review a motion to dismiss filed before a formal answer. See, Hillery, 533 F. Supp. at 1194 & n.12.

Respondent's motion to dismiss addresses in part the untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1). The material facts pertinent to the motion are mainly found in copies of the official records of state administrative and judicial proceedings which have been provided by Respondent and Petitioner, and as to which there is no factual dispute. Because Respondent has not filed a formal answer, and because Respondent's motion to dismiss is similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.

II. Background

Petitioner alleges he is an inmate of the California Substance Abuse Treatment Facility and State Prison at Corcoran, California, serving a sentence of fifteen (15) years to life imposed in the Superior Court of the State of California, County of Orange, on October 6, 1998, upon Petitioner's conviction of forcible rape, forcible oral copulation, and false imprisonment in violation of Cal. Pen. Code §§ 261, 288A, and 236. (Pet. 1.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) finding Petitioner unsuitable for release on parole after a hearing held on May 13, 2009. (Id. at 10.) Petitioner raises the following claims in the petition: 1) the BPH denied parole based on a post hoc rationalization, which resulted in a violation of Petitioner's state and federal rights to due process; 2) Petitioner's closing statement was cut off at the hearing, which deprived him of the opportunity to express his remorse for the commitment offense and to inform the BPH of the rehabilitative gains he has acquired through his incarceration; 3) the BPH's decision violated Petitioner's due process rights because it was not supported by any evidence that Petitioner posed an unreasonable risk if released; and 4) the BPH failed to give Petitioner an individualized consideration of pertinent parole suitability factors. (Id. at 10-21, 45.)

The transcript of the hearing held before the BPH submitted by Petitioner in support of the petition (doc. 6) reflects that Petitioner attended the hearing with counsel (id. at 2, 5); received documents before the hearing and had an opportunity to correct or clarify the record (id. at 7, 9, 47, 66); testified before the BPH concerning many factors of parole suitabilty (id. at 10-90, 95-97); and made a statement to the BPH in favor of parole (id. at 105-09). Petitioner's counsel also made statement to the BPH in favor of release. (Id. at 100-05.)

Petitioner was present when the BPH stated the reasons for the finding that Petitioner still posed a present risk of danger to society or a threat to public safety if released. These reasons included Petitioner's failure to understand the nature and magnitude of his commitment offenses, the multiplicity of victims, Petitioner's lack of insight into the causative factors that led him to offend, his blaming others for his offenses, his problematic relationship with his parents, history of alcohol abuse, some inadequacies in his parole plans, and a psychiatric evaluation. (Doc. 6, 110-32.)

The bottom of the final page of the reported proceedings of the parole hearing states:

PAROLE DENIED FIVE YEARS

THIS DECISION WILL BE FINAL ON: SEP 10 2009 YOU WILL BE PROMPTLY NOTIFIED, IF PRIOR TO THAT DATE, THE DECISION IS MODIFIED (Doc. 6, 132.)

Petitioner's proof of service reflects that his first state habeas petition challenging the BPH's decision was filed on January 14, 2010. (Mot., Ex. 2.)

Under the mailbox rule, a prisoner's pro se habeas petition is "deemed filed when he hands it over to prison authorities for mailing to the relevant court." Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); Houston v. Lack, 487 U.S. 266, 276 (1988). The mailbox rule applies to federal and state petitions alike. Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citing Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)). In Campbell v. Henry, the court declined to determine whether in considering the date of mailing, it was more appropriate to use the date on the proof of service or the date of the postmark. Campbell v. Henry, 614 F.3d 1056, 1059 n.2 (9th Cir. 2010). It has been held that the date the petition is signed may be inferred to be the earliest possible date an inmate could submit his petition to prison authorities for filing under the mailbox rule. Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408 (2005).

Here, Petitioner's proof of service is declared to be true under penalty of perjury, and states the petition was handed to institutional staff to be mailed on January 14, 2010. The petition is thus deemed to have been filed in the Superior Court as of January 14, 2010, pursuant to the mailbox rule.

On February 1, 2010, the Superior Court denied the petition because the record revealed that the decision was supported by some evidence of multiple reasons for denying parole. (Mot., Ex. 3.) The court sent a certified copy of the court's signed order to Petitioner at Corcoran. (Id.)

On February 25, 2010, Petitioner declared under penalty of perjury that on that date he handed to institutional staff a petition for writ of habeas corpus addressed to the California Court of Appeal, Fourth Appellate District (DCA). (Mot., Ex. 4.) Thus, the petition will be considered to have been filed in the DCA on that date. On March 4, 2010, the DCA summarily denied the petition. (Mot., Ex. 5.)

Petitioner signed and dated a petition directed to the California Supreme Court on March 9, 2010. On March 23, 2010, Petitioner signed and dated a declaration made under penalty of perjury stating that he had handed his petition for review to prison officials on March 9, 2010; it was returned for allegedly deficient address information, but Petitioner had used an address he had been given at prison in response to a query concerning the exact address of the California Supreme Court. Petitioner handed the petition to prison staff with his declaration on March 23, 2010. (Mot., Ex. 6.)

The docket of the California Supreme Court in Stanley Thermidor, on Habeas Corpus, case number S181325, reflects that an "untimely" petition for review was received on March 26, 2010. On April 5, 2010, Petitioner applied for relief from default. On that same date, the petition for review was filed with the permission of the court. After receipt of the record from the DCA, the court summarily denied the petition for review on June 9, 2010. (Mot., Ex. 7.)

Petitioner signed and dated the petition filed in this case on November 7, 2010. (Pet., doc. 1, 6, 23.) His certification of service, supported by a declaration under penalty of perjury, is also dated November 7, 2010.

On November 1, 2010, this court received a motion to submit exhibits to the petition within thirty (30) days of filing a petition for writ of habeas corpus because Petitioner was unable to make copies of the exhibits to the petition. (Id. at 7-8.) Petitioner signed the motion on October 27, 2010. (Id.) The petition is stamped filed as of November 10, 2010. (Id. at 1.)

III. Statute of Limitations

Respondent argues that the petition is untimely because it was filed outside the one-year limitations period.

A. Legal Standards

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA applies to all petitions for writ of habeas corpus filed after the enactment of the AEDPA. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). Because Petitioner filed his petition in this Court in 2010, the AEDPA applies to the petition.

The AEDPA provides a one-year period of limitation in which a petitioner must file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, subdivision (d) reads:

(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 ...


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