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Nelson Louis Thomas v. Kathleen L. Dickinson

July 30, 2011

NELSON LOUIS THOMAS, PETITIONER,
v.
KATHLEEN L. DICKINSON, ET AL.,
RESPONDENTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therein, petitioner challenges the 2007 decision of the California Board of Parole Hearings (Board) finding him unsuitable for parole. Before the court is respondents' motion to dismiss the petition on the grounds that it was filed beyond the applicable one-year statute of limitations. (Doc. No. 15) In opposition, petitioner has filed a motion for a stay. (Doc. No. 16)

I. MOTION TO DISMISS

A. Respondents' Motion

In moving to dismiss the habeas petition pending before this court, respondents provide the following chronology. On October 26, 2007, the Board's decision denying petitioner parole became final. (Doc. No. 15 at 2.) The one-year statute of limitations for seeking federal habeas relief with respect to that decision ran for 149 days until March 24, 2008, when petitioner filed his petition for a writ of habeas corpus challenging the decision with the Los Angeles County Superior Court. (Id. at 2-3.) The statute of limitations for the filing of a federal petition was tolled from March 24, 2008, while petitioner's various habeas petitions were pending in state court, until December 17, 2009, when the California Supreme Court denied petitioner's petition for a writ of habeas corpus. (Id.) Respondents contend in summary fashion that the original federal petition filed with this court was defective and did not stop or toll the one-year AEDPA statute of limitations. (Id. at 3) (citing Duncan v. Walker, 533 U.S. 167 (2001)). According to respondents, the statute of limitations for the filing of a federal petition therefore ran another 301 days from December 18, 2009 until October 15, 2010, when petitioner filed his amended federal habeas petition with this court. (Id.) Respondents contend that because the statute of limitations ran for a total of 450 days (149 days plus 301 days), the amended federal habeas petition was not timely filed and is barred. (Id. at 3-4.)

B. Petitioner's Motion for a Stay

The court has construed petitioner's motion for a stay as his opposition to respondents' motion to dismiss. Therein, petitioner contends that he was unable to file his federal habeas petition with this court any earlier for the following reasons. First, petitioner's federal habeas filing was delayed because of prison lock downs. (Doc. No. 16 at 1.) In this regard, petitioner has requested institutional records to show the court that several lock downs occurred at his institution of confinement over the past three years. (Id.) Thus far, petitioner reports, he has been unable to obtain the requested prison records. See Doc. Nos. 17 and 19 (Petitioner's Letters). Second, petitioner contends that he was not notified by the California Supreme Court concerning its decision denying him state habeas relief until seventy-eight days after that court's decision. (Doc. No. 16 at 2.) Third, petitioner contends that delay in filing his federal petition was also due to the prison library schedule from June 2007 to December 2009, his inability to obtain priority legal status, his limited access to the prison library during lock downs, and the failure of prison staff to issue him a library ducat. (Id.) Petitioner contends that he had little control over the circumstances described above. (Id. at 3.)

II. ANALYSIS

A. 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 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 the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

The one-year AEDPA statute of limitations applies to all federal habeas corpus petitions filed after the statute was enacted and therefore applies to the pending petition. See ...


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