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Akop Bagdasaryan v. Gary Swarthout

December 11, 2012

AKOP BAGDASARYAN, PETITIONER,
v.
GARY SWARTHOUT, ET AL.,
RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner incarcerated at the California State Prison - Solano, is proceeding pro se with a petition for a writ of habeas corpus. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole following his January 7, 2010 parole suitability hearing. Before the court is respondent Swarthout's motion to dismiss the petition as untimely and for failure to state a cognizable claim for federal habeas relief. Petitioner has filed an opposition to the motion, respondent has filed a reply and petitioner has filed an unauthorized sur-reply.*fn1

MOTION TO DISMISS THE PETITION AS UNTIMELY I. 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 one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244 provides as follows:

(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 toward any period of limitation under this subsection.

II. Background

On January 7, 2010, petitioner received a parole suitability hearing.*fn2 At that time the Board determined that petitioner was not suitable for parole and that decision became final on May 7, 2010. (Doc. No. 13-1 at 42.)

On April 27, 2010, petitioner signed his habeas petition filed with the Los Angeles County Superior Court in which he challenged the Board's 2010 decision.*fn3 (Id. at 10.) On July 1, 2010, that petition was denied. (Doc. No. 13-6 at 2.) On August 25, 2919, petitioner signed a proof of service for his "Motion For Rehearing" filed with the California Court of Appeal for the Second Appellate District. (Doc. No. 13-7 at 2 & 18.) On September 22, 2010, the motion, construed by the court as a petition for writ of habeas corpus, was denied by the state appellate court. (Doc. No. 13-9 at 2.) On September 30, 2010, petitioner filed a petition for review with the California Supreme Court. (Doc. No. 13-10 at 2 & 17-18.) On November 23, 2010, that petition was summarily denied. (Doc. No. 13-12 at 2.)

The petition for a writ of habeas corpus pending before this court was signed by petitioner on November 20, 2011, and filed with the U.S. District Court for the Central District of California. On December 14, 2011, this action was transferred to and filed in this court.

III. Parties' Arguments

A. Respondent's Motion to Dismiss

Respondent argues that the statute of limitations for petitioner to seek federal habeas relief began to run on January 8, 2010, one day after the parole consideration hearing he challenges. (Doc. No. 13 at 4.) Respondent contends that on the date of the parole hearing, petitioner became aware of the factual predicate of his claims because that is the date when the Board announced its decision to deny him parole. (Doc. No. 13 at 3.) According to respondent, the statute of limitations for the filing of a federal habeas petition continued to run for 109 days until it was tolled by petitioner's filing of a habeas petition with the Los Angeles Superior Court on April 28, 2010. (Id. at 4.) Tolling of the statute of limitations continued until the California Supreme Court ultimately denied his petition for review on November 23, 2010. (Id.) Respondent contends that petitioner's federal habeas petition was not filed until 378 days later on November 23, 2011, when it was transferred to the U.S. District Court for the Eastern District of California. (Id.) Based upon this calculation (109 378 = 487 days - 365 days = 122 days), respondent contends that petitioner's federal habeas petition was filed 122 days after the applicable one-year statute of limitations had expired. (Id.)

B. Petitioner's Opposition

Petitioner asserts that the statute of limitations for his seeking of federal habeas relief in this matter began to run on November 23, 2010, when the California Supreme Court denied his petition for review. (Doc. No. 14 at 2.) Petitioner also contends that his federal habeas petition was filed when he delivered it to prison authorities for mailing and not on the date that it was transferred to this court by the U.S. District Court for the Central District of California. (Id. at 3.) Petitioner refers to the transfer order which he notes advises only that the district of ...


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