The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a California state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the original petition filed, pursuant to the mailbox rule, on November 24, 2010. Petitioner alleges that prison officials violated his due process and equal protection rights by unlawfully "stacking" his disciplinary violations, and then by failing to adjudicate his untimely appeals of the disciplinary rulings.
Pending before the court is respondent's motion to dismiss under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.*fn1 Respondent alleges that the action is barred by the statute of limitations, and that the claims raised are either unexhausted or procedurally barred. After carefully considering the record, the undersigned recommends that the respondent's motion be granted.
Petitioner is a California state prisoner serving a sentence of 25 years to life, plus two years, following his 1985 conviction for homicide with use of a weapon in violation of C.P.C. 187. Doc. No. 1 at 1, 3. He is currently housed at California State Prison, Solano. Id. at 1. Petitioner alleges that, during a cell search conducted on November 11, 2008, a corrections officer found and confiscated three prohibited items: (1) a cell phone; (2) a Bic lighter; and (3) three $100 bills. Id. at 13. Petitioner admitted ownership of all three items. Id. The corrections officer issued three separate Serious Rule Violation Reports, one for each of the prohibited items. Doc. No. 12, Ex. 1, at 25-28.*fn2
In November and December 2008, petitioner pled guilty to each of the charges. Id. He was found guilty, and assessed a 30 day loss of credits for each violation. Id.
Any appeal of the disciplinary rulings was due within 15 days of the action or decision being appealed. See, e.g., Operations Manual, Department of Corrections and Rehabilitation, § 54100.4. Acceptance of an appeal request beyond the 15-day policy is "at the discretion of the appeals coordinator." Id.
On June 10, 2009, after the 15 day period had expired, petitioner filed an administrative appeal with the prison Appeals Coordinator. Doc. No. 12, Ex. 1, at 29-32. He acknowledged that the appeal was late, but claimed that he was unaware of the legal bases for his appeal until June 2009. Id. Petitioner raised three arguments: (1) under People v. Jack, 213 Cal.App.3d 913 (1989), an illegal sentence could be corrected at any time; (2) under People v. Deloza, 18 Cal. 4th 585 (1998), the three charges arising from the single cell search were an impermissible "multiple punishment" under Cal. Penal Code § 654; and (3) the correction officer's decision to issue three rule violation reports based on a single cell search violated a Department of Corrections memorandum, dated June 23, 1998, which defined "stacking." Id. Petitioner did not explain how he only came to discover the cited authorities, dated 1981 and 1998, in June 2009, or otherwise offer any explanation or further information about his failure to comply with the 15 day appeal deadline. See id.
On June 12, 2009, the Solano Appeals Coordinator rejected the appeal as untimely. Doc. No. 12, Ex. 1 at 36. On October 9, 2009, the Inmate Appeals Branch rejected petitioner's third level appeal, because the second level appeal had been rejected as untimely. Id. at 42. Petitioner re-submitted his appeal to the Solano Appeals Coordinator, who, on October 27, 2009, again rejected his appeal as untimely. Id. at 46. Petitioner again attempted to obtain third level review, arguing to the Inmate Appeals Branch that, under the California Code of Regulations Rules of Construction, the time limits for filing an appeal were directory and that failure to meet the deadline did not preclude review. Id. at 48-49. On January 5, 2010, the Inmate Appeals Branch rejected petitioner's appeal, finding again that his appeal had previously been rejected at the institution level.
On March 11, 2010, petitioner filed a petition for habeas corpus in the Superior Court of Solano County, alleging that prison officials violated his due process and equal protection rights by stacking his rules violations, and also by rejecting his untimely appeal. Doc. No. 12, Ex. 1. On May 13, 2010, the superior court denied the petition, finding, inter alia, that petitioner had failed to exhaust his administrative remedies and that his appeal to the Solano Appeals Coordinator was untimely. Doc. No. 12, Ex. 2. The superior court further found that, while Department officials have discretion to hear an untimely appeal, the record reflected that, in this case, the Inmate Appeals Branch exercised its discretion to reject petitioner's request. Id.
On July 19, 2010, petitioner raised his claims in a petition for writ of habeas corpus filed in the state Court of Appeal, which was summarily denied on August 4, 2010. Doc. No. 12, Exs. 3, 4.
On August 20, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. Doc. No. 12, Ex. 5. On October 27, 2010, the California Supreme Court denied the petition, citing In ...