The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER: (1) ADOPTING IN PART AND DECLINING TO ADOPT IN PART THE FINDINGS AND CONCLUSIONS OF UNITED STATES MAGISTRATE JUDGE; (2) GRANTING RESPONDENT'S MOTION TO DISMISS; (3) DISMISSING PETITION FOR (4) ISSUING A LIMITED
CERTIFICATE OF APPEALABILITY
Petitioner is a California prisoner proceeding pro se with a First Amended Petition for a Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. (ECF No. 4.) Petitioner alleges his federal Constitutional rights were violated in connection to a January 19, 2008, prison disciplinary hearing at which he was found guilty of distribution of a controlled substance. (Id. at 1-8.) Respondent has filed a Motion to Dismiss the Petition on the ground that it was filed after expiration of the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). (ECF No. 19.) Petitioner has filed an Opposition arguing that the Petition is timely, and, alternately, that he is entitled to equitable tolling of the limitations period. (ECF No. 25.)
WRIT OF HABEAS CORPUS; and Presently before the Court is a Report and Recommendation ("R&R") submitted by United States Magistrate Judge Bernard G. Skomal. (ECF No. 28.) The Magistrate Judge found that equitable tolling was unavailable, and that although partial statutory tolling was available, the Petition was untimely; the Magistrate Judge recommended that Respondent's motion to dismiss be granted, the Petition be dismissed, and the Court decline to issue a Certificate of Appealability. (Id.) Petitioner has not filed objections to the R&R, although he was twice granted an extension of time to do so. (ECF Nos. 32, 34.)
The Court has reviewed the R&R pursuant to 28 U.S.C. § 636(b)(1), which provides that: "a judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
Petitioner, who was incarcerated at the time, was found guilty of distribution of a controlled substance on January 19, 2008, following a prison disciplinary hearing. (Pet. Ex. C [ECF No. 1-2 at 7].) The administrative appeal process ended on December 2, 2008, when his appeal was denied at the Director's level of review. (Pet. Ex. Z [ECF No. 1-4 at 49-51].) Petitioner constructively filed a state habeas petition in the superior court on August 6, 2009.*fn1
(Resp.'s Lodgment No. 1.) That petition was denied without prejudice on September 9, 2009, for failure to comply with California Rule of Court 4.551, which requires habeas petitions to be submitted on an approved Judicial Council form. (Resp.'s Lodgment No. 2.)
Petitioner re-submitted his habeas petition to the superior court on December 9, 2009. (Resp.'s Lodgment No. 3.) On February 2, 2010, the superior court denied the petition on the merits of the claims presented; the court noted that the petition had been filed nearly a year after Petitioner had exhausted his administrative remedies, but explicitly excused the delay because of the previous procedural denial. (Resp.'s Lodgment No. 4.) Petitioner filed his next state habeas petition in the appellate court on March 23, 2010, which was denied on April 20, 2010, as untimely (noting that Petitioner "has not explained the delay in seeking habeas corpus relief"), and on the merits. (Resp.'s Lodgment Nos. 5-6.) His final state habeas petition was filed in the state supreme court on May 24, 2010, and was summarily denied on June 30, 2010, without citation of authority or a statement of reasoning. (Resp.'s Lodgment Nos. 7-8.) The instant federal habeas action was initiated on July 26, 2010, the date Petitioner indicates he handed his Petition to the prison officials for mailing to the Court. (ECF No. 1 at 11.)
Respondent contends that the one-year statute of limitations applicable to federal habeas cases began to run on December 3, 2008, the day after Petitioner exhausted his administrative remedies, and that it expired about one week before Petitioner filed his first "properly filed" state habeas petition in the superior court on December 9, 2009. (MTD at 3-4.) Respondent contends that Petitioner is not entitled to statutory tolling as a result of the August 6, 2009, superior court petition which was denied on procedural grounds, because it was not "properly filed." (Id.) Thus, Respondent argues that because Petitioner did not begin his first round of state post-conviction review until after the limitations period had expired, statutory tolling is not available. (Id.) Respondent alternately contends that even if statutory tolling began on August 6, 2009, and ran for the entire state post-conviction review process, which ended on June 30, 2010, Petitioner had seven days remaining on the limitations period at that point, but filed his federal Petition on July 26, 2010, twenty-six days later. (Id. at 5.)
Petitioner replies that the one-year statute of limitations did not begin to run until mid-November 2009, when his legal materials, which had been taken from him by prison officials on February 18, 2009, were returned. (Opp. at 7.) Petitioner also contends that he is entitled to equitable tolling of the limitations period for the time he was dispossessed of his legal materials and deprived of access to the prison law library. (Id. at 5.) Respondent has not replied to the arguments Petitioner has presented in his Opposition.
The Magistrate Judge found that the limitations period began to run on December 3, 2008, the day after Petitioner exhausted his administrative remedies. (R&R at 4.) The Magistrate Judge found that Petitioner was entitled to statutory tolling from December 9, 2009, the date his "properly-filed" superior court habeas petition was filed, until June 30, 2010, when the state supreme court denied the final state habeas petition. (Id. at 5.) The Magistrate Judge found that statutory tolling did not begin on August 6, 2009, the date the first superior court habeas petition was filed, because that petition was denied on procedural grounds and was therefore not "properly filed," but that even if it was, the Petition is untimely because Petitioner had only seven days left on the limitations period when statutory tolling would have ended under that scenario, but he waited twenty-seven days to file his federal Petition. (Id.) Finally, the Magistrate Judge found that Petitioner was not entitled to equitable tolling. (Id. at 5-9.)
2. Triggering Date for the Statute of Limitations
The one-year statute of limitations applicable to federal habeas ...