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Jeffrey M. Ames v. G. Swarthout

September 13, 2011

JEFFREY M. AMES, PETITIONER,
v.
G. SWARTHOUT,
RESPONDENT.



ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 9, 2011, respondent filed a motion to dismiss the petition as time-barred. Petitioner opposes the motion. Upon review of the motion, the documents in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Petitioner initiated this action on February 10, 2011*fn1 challenging a 2008 administrative conviction for refusal to report to work while housed at California State Prison -- Solano. Petitioner alleges that on the morning of January 7, 2008, he became aware that inmates were refusing to report to work and several inmates were shouting threats that if anyone reported to work "he would be dealt with." At approximately 7:15 a.m., correctional officer Nixon ("Nixon") approached petitioner's cell door and asked petitioner whether he would be reporting to work that day. Petitioner said "I can't boss" because fear of reprisal in light of the threats. Nixon said he understood and a second officer told petitioner that he didn't blame him. On January 8, 2008, Nixon returned to petitioner's cell and asked him again if he would be reporting to work that day. Petitioner again stated that in light of the threats of the other inmates, he could not report to work. On January 11, 2008, all inmates returned to work, including petitioner.

On January 19, 2008, petitioner received a Rules Violation Report ("RVR") issued by Nixon for refusing to work. Mot. to Dismiss ("MTD"), Ex. 1. At the February 2, 2008 hearing on the RVR, petitioner explained that he only refused to work because of the potential harm he would suffer in light of the threats issued by the other inmates. Id. On March 19, 2008, petitioner was found guilty of refusing to work and assessed a 30-day loss of credit and a 90-day reduction of privilege group. Id.

On March 31, 2008, petitioner filed an inmate grievance challenging the guilty finding. MTD, Ex. 2 at 2-3. Both the informal and first formal levels of review were bypassed. See id. On July 29, 2008, petitioner's appeal was denied at the Second Level of Review. See MTD, Ex. 3 (Pet'r's Writ of Mandate, Ex. A at 5-7). Petitioner appealed this decision and, on December 1, 2008, the appeal was denied at the Director's Level. MTD, Ex. 2 at 1.

On April 21, 2009, petitioner filed a petition for writ of mandamus with the Solano County Superior Court. MTD, Ex. 3. On July 27, 2009, the superior court construed the writ as a petition for writ of habeas corpus and denied it for failure to state a prima facie case. Id., Ex. 5. Petitioner appealed to the California Court of Appeal, First Appellate District, which denied the petition on December 17, 2009. Id., Ex. 11. Finally, petitioner appealed to the California Supreme Court, which denied the petition on February 18, 2010. Id., Exs. 12-13.

On February 10, 2011, petitioner filed a petition for writ of habeas corpus in this court. On June 9, 2011, respondent filed a motion to dismiss. On July 19, 2011, petitioner filed a motion for an extension of time to file an opposition. This request will be granted. On August 15, 2011, petitioner filed an opposition. On August 24, 2011, respondent filed a reply.

DISCUSSION

Section 2244(d) of Title 28 of the United States Court contains a statute of limitations for filing a habeas petition in federal court: (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 ...


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