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Jose Manuel Perez v. Terri Gonzalez*Fn1

September 5, 2011

JOSE MANUEL PEREZ, PETITIONER,
v.
TERRI GONZALEZ*FN1 ,
RESPONDENT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the first amended petition filed on February 22, 2011. Pending before this court is respondent's March 29, 2011 motion to dismiss the petition on the ground that it is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed an opposition to the motion. Having carefully reviewed the applicable law and facts, the court will recommend that respondent's motion be granted.

BACKGROUND

In 1999, petitioner was convicted in San Bernardino County Superior Court for three counts of lewd acts upon a child. He was sentenced to an indeterminate prison sentence of seventy-five years to life with the possibility of parole. (Dkt. No. 16 (hereinafter "MTD"), Ex. A.)

In October 2005, petitioner was housed at California State Prison-Solano. At a disciplinary hearing held October 11, 2005, he was found guilty by a preponderance of the evidence of the charge of sexual harassment, specifically "mak[ing] several unwanted verbal sexual remarks" to a female correctional officer. (MTD, Ex. B (Rules Violation Report, Log No. S2-05-09-0925).) The conviction was classified as a Division F offense and resulted in petitioner's loss of 30 days' work-time credit. (Id.) Petitioner challenged the disciplinary action pursuant to the administrative grievance process. (Dkt. No. 14 at 23-26*fn2 .) On January 14, 2007, the Inmate Appeals Branch of CSP-Solano informed petitioner that there was no record that his administrative appeal was accepted for Director's Level Review. (MTD, Ex. C.)

On July 13, 2007, petitioner filed a petition for writ of habeas corpus challenging the sexual harassment conviction in the Solano County Superior Court. (MTD, Ex. D.) On September 13, 2007, the superior court denied the petition. (Id.) Petitioner next filed a habeas petition challenging the conviction in the California Court of Appeal, Third Appellate District. The appellate court denied the petition on March 26, 2009. (MTD, Ex. E.) On April 14, 2009, petitioner filed a state habeas petition challenging the conviction in the California Supreme Court. The state's highest court denied the petition on March 13, 2009. (MTD, Ex. F.)

On September 2, 2009, petitioner commenced this action by filing his original petition for federal habeas review. (Dkt. No. 1.) The original petition challenged both the 2005 disciplinary conviction for sexual harassment and a 2007 disciplinary conviction for possession of alcohol. (Id.; see Dkt. No. 12.) Because the timing of the court's subsequent actions are relevant to the equitable tolling discussion below, they are set forth as follows:

On April 13, 2010, the court issued a screening order stating that petitioner "may be entitled to relief if the claimed violation of constitutional rights is proved" and directing respondent to file a response to the petition within 60 days. (Dkt. No. 5.) Respondent filed a motion to dismiss the petition on June 14, 2010, which addressed both the 2005 and 2007 disciplinary convictions, but did not assert that the petition was defective because it challenged two separate convictions. (Dkt. No. 7.) Petitioner timely filed an opposition. On November 8, 2010, the court ordered respondent to submit an additional document, which respondent promptly filed. (Dkt. Nos. 9, 10.)

On January 20, 2011, the court issued an order dismissing the petition sua sponte because it improperly challenged two separate prison disciplinary convictions in violation of Rule 2(e), Rules Governing Section 2254 Cases; and denying the motion to dismiss as moot. The court granted petitioner thirty days in which to file an amended petition challenging either the 2005 or the 2007 convictions, but not both. (Dkt. No. 12.) On February 22, 2011, petitioner filed the first amended petition (hereinafter "FAP"), which challenges the 2005 disciplinary conviction.

MOTION TO DISMISS

Respondent argues that the operative FAP was filed beyond the one-year statutory limitations period and is therefore time-barred. Respondent contends that the limitations period for petitioner's disciplinary conviction began to run on January 15, 2007, was tolled during the pendency of petitioner's state habeas proceedings, and began to run again on May 14, 2009. Respondent contends that the AEDPA limitations period continued to run through petitioner's filing of his original federal petition on September 2, 2009 and had long expired by the time the FAP was filed on February 22, 2011. (MTD at 2-4.)

OPPOSITION

Petitioner points out that he timely filed his original federal petition on September 2, 2009. He argues that the court's delay in dismissing the original petition, 505 days after it was filed, was an extraordinary circumstance beyond his control that caused the FAP to be filed beyond the AEDPA deadline.*fn3 Petitioner asserts that he has complied with court-mandated deadlines and diligently pursued his claim. Therefore, he argues, the period between his filing of the original petition and the FAP should be equitably tolled, and the FAP deemed timely. (Dkt. No. 17 (hereinafter "Opp.") at 2-3.)

STATUTE OF LIMITATIONS UNDER THE AEDPA

Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a ...


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