The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS and RECOMMENDATIONS
This is a pro se petition for habeas corpus relief under 28 U.S.C. § 2254. Petitioner challenges a disciplinary decision issued in 2007, and the warden now moves to dismiss alleging that the petition is untimely, and that the claims are procedurally defaulted. Petitioner opposes the motion, essentially arguing that he is entitled to statutory and equitable tolling. For the reasons explained below, the undersigned recommends that the court grant the warden's motion and dismiss the petition as untimely.
In January 2007, petitioner, who at the time was a prisoner at High Desert State Prison, received a Rules Violation Report charging him with "Participating in a Mass Disturbance/Cell Extraction" in violation of California Code of Regulations § 3005(c). See Doc. No. 1 at 65. According to the report, on January 16, 2007, petitioner and his cellmate covered their cell windows, then refused to remove the covers and to be handcuffed voluntarily. Id. The cell extraction was videotaped. See Doc. No. 1 at 72. After a hearing on February 27, 2007, petitioner was found guilty of the charge and assessed, among other things, a 90 day loss of credit. See id. at 72.
A review of the record reflects that petitioner was not afforded an opportunity to watch the videotape at the time of his original hearing because allowing petition to view the video "would expose staff cell extraction procedures and jeopardize the safety and security of the institution." See Doc. Nos. 1 at 72, 10-9 at 54. A review of the record reflects that the Senior Hearing Officer viewed and considered the videotape before arriving at his verdict, and specifically found that the video supported the contents of the disciplinary report. Id. at 72-73. The Senior Hearing Officer additionally found that the written evidence presented at the hearing was sufficient to support the charge against petitioner. Id. at 74.
Petitioner filed administrative appeals of his disciplinary conviction, the last of which was denied on April 28, 2008. See Doc. No. 1 at 58. Petitioner alleges that he received notice of the decision on May 2, 2008. Id. at 50.
Additionally, on January 24, 2008, petitioner filed a civil action pursuant to 42 U.S.C. § 1983, alleging violations of his Eighth and Fourteenth Amendment rights in connection with the January 16, 2007 incident. See Gonzalez v. Felker et al., 2:08-cv-0173-MCE-CMK P, Doc. No. 1. Judgment was entered for the defendant prison officials on March 29, 2011. See id. at Doc. 77. Between the time of filing, and entry of judgment, petitioner communicated with the court, either by letter or by motion/response, on the following dates: February 4, 2008 (amended complaint); February 6, 2008; February 21, 2008; April 28, 2008; May 1, 2008 (amended complaint); October 17, 2008; November 26, 2008 (third amended complaint); March 4, 2009 (notice of submission of documents); March 18, 2009; July 22, 2009; September 10, 2009; November 2, 2009; December 28, 2009; March 15, 2010; April 15, 2010; June 4, 2010; June 14, 2010; July 9, 2010; July 26, 2010; September 22, 2010; October 27, 2010; February 28, 2011; and March 21, 2011.
On July 9, 2009, 436 days after the California Department of Corrections and Rehabilitation ("CDCR") denied petitioner's final administrative appeal, he filed his first state habeas petition with the Superior Court. Doc. No. 10-1 at 5. Petitioner explained the delay in filing the petition:
I received a response from the Director's Level Review which exhaust all remedies on May 02, 2008. I was not able to get all information and forms needed until June 04, 2008. It's real difficult to go to the law library here at Centinela, especially during lockdowns. On June 04, 2008, I was placed in Ad-Seg (administrative segregation) and all my personal property was stored away. I requested all the paperwork regarding this petition and forms needed that were in my property. I was told that I'm only allowed to get legal mail that is approved by staff as a judge order court deadline. I explained that it's not a court order deadline, but there is a time limit to file a petition for writ of habeas corpus and I need all the requested papers and documents to file in court...For 10 months, I tried and tried, but would not get them, including 2 months I was in the prison infermery [sic] due to surgery on my ankle....On April 9, 2009 I was released from administrative segregation and I finally was able to receive my property, including the papers and documents needed and after 2 weeks of waiting I was able to go back to the law library and get the information and forms needed since staff lost most of my property.
On September 3, 2009, the Superior Court denied the petition, finding that petitioner "provides no explanation for the delay between the final administrative decision and the filing of the instant writ petition." See Doc. No. 1 at 19. The Superior Court further wrote:
Claims stated in a petition for writ of habeas corpus must be raised as promptly as circumstances allow; a court will not consider issues not raised in a timely manner. In re Clark (1993) 5 Cal.4th 750. Petitioner has failed to explain the significant delay in this matter.
On December 30, 2009, plaintiff filed a petition with the Appellate Division, which denied his petition in a summary order on March 11, 2010. See Doc. No. 1 at 32, Doc. No. 10-7 at 3, 5. On June 4, 2010, petitioner then filed a petition with the Supreme Court, and, on July 14, 2010, the Supreme Court denied his petition in a summary order. See Doc. No. 1 at 39, 40. The current federal petition was filed 13 months later, on August 22, 2011.*fn1
The claims raised by petitioner in his habeas petitions are: (1) the hearing officer denied petitioner's right to call witnesses during his hearing; (2) prison officials failed to appoint an investigative employee; (3) prison officials would not allow petitioner to view the videotape of his cell extraction, claiming that it was confidential; and (4) prison officials failed to provide petitioner with all documentary evidence, including incident reports. See Doc. No. 11 at 5-8. THE MOTION TO DISMISS
The warden moves to dismiss, arguing that (1) the petition is untimely, being filed more than a year after the Supreme Court's decision; and (2) the claims are procedurally barred, because the Superior Court denied petitioner's first state petition as untimely. See Doc. No. 10.
Petitioner does not deny that his petitions were late (see Doc. No. 12 at 4), but objects to the dismissal motion, alleging that the Superior Court incorrectly denied his petition as late. See Doc. No. 12 at 4. Petitioner argues that the Superior Court erred when it determined that he had failed to explain the reason for his delay in filing his Superior Court petition, because, in his petition, petitioner had alleged that (1) his property was held until April 9, 2009 because he was in administrative segregation; (2) he was in surgery for two months; and (3) his access to the law library was limited. Id.
Petitioner further argues that his federal petition was filed more than a year after the Supreme Court's decision because his access to the law library is limited, and that this limited access is a state-created impediment. Id. at 5. He adds that he filed his petition as soon as the impediment was removed. Id. at 6. See also Doc. No. 1 at 14 (petitioner acknowledges that petition is filed outside one-year deadline, and describes difficulty in getting to law library, and getting envelopes and postage stamps).
Petitioner finally appears to argue that he has new evidence which establishes that he is innocent of the disciplinary conviction. See Doc. No. 1 at 8, 87-88. Specifically, petitioner argues that, as part of discovery in his § 1983 proceeding, he was allowed ...