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Marc Sardella-Lagomarsino v. Gary Swarthout

February 28, 2013

MARC SARDELLA-LAGOMARSINO, PETITIONER,
v.
GARY SWARTHOUT, WARDEN, ET AL.,
RESPONDENTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER and FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, based on challenges to the February 11, 2010 decision of the Board of Prison Terms ("Board or "BPT"), denying petitioner parole.*fn1 Also pending is petitioner's motion to amend the petition. Respondent moves to dismiss the petition without leave to amend, on the ground that the petition was untimely filed. For the reasons set forth below, the undersigned recommends that the court grant respondent's motion to dismiss the petition without leave to amend.

The court previously summarized the procedural posture of this case (and petitioner's separately pending case (see n.1, supra)), as follows (Dkt. No. 17):

In this habeas corpus action, filed pursuant to 28 U.S.C. § 2254, petitioner challenges the February 11, 2010 decision of the Board of Prison Terms [], denying petitioner parole. Respondent has filed a motion to dismiss that is now fully briefed and pending for decision. In opposition to respondent's motion, petitioner stipulates, in part,*fn2 to the dismissal of his second claim because "that claim is currently before this court in another matter" (citing Case No. 2:12-cv-1866, petitioner's second-filed habeas corpus action). (Dkt. No. 13 at 2.) For the reasons explained herein (and in Case No. 2:12-cv-1866), petitioner may not "dismiss" his second claim in this action in order to pursue it in a newly-filed habeas action.

Petitioner asserts six claims in the present case, which challenge the Board's February 11, 2010 decision denying petitioner parole.*fn3 Petitioner asserts two claims in his second-filed habeas corpus action: the first claim also challenges the Board's February 11, 2010 decision denying petitioner parole; the second claim challenges the Board's September 23, 2011 denial of petitioner's request to convene an "advanced" parole hearing. (See Petition (Dkt. No. 1) in Case No. 2:12-cv-1866.)

A petitioner may not proceed with two different habeas actions challenging the same parole decision. If a prior habeas petition is pending when a subsequent habeas petition is filed, challenging the same decision, the court is required to construe the subsequent petition as a motion to amend the first petition. See Woods v. Carey, 525 F.3d 886, 888-90 (9th Cir. 2008). For these reasons, the court construed petitioner's first claim in Case No. 2:12-cv-1866, as a motion to amend his second claim in the present action, and therefore dismissed the claim. (The court permitted Case No. 2:12-cv-1866 to proceed on petitioner's second claim, challenging the Board's September 23, 2011 denial of petitioner's request to convene an "advanced" parole hearing.) The court directed the Clerk of Court to file, in the present action, a copy of the petition filed in Case No. 2:12-cv-1866, designated herein as a "motion to amend."

It is not clear that petitioner is entitled to amend his original petition in the present action. Even if petitioner recently exhausted his state court remedies on a new theory to a previously-filed claim, this does not necessarily entitle petitioner to amend his original claim. Petitioner never sought to stay the instant petition pending exhaustion of his state court remedies on an unexhausted claim. Cf. Rhines v. Weber, 544 U.S. 269, 277 (2005) ("a stay-and-abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court"). Moreover, respondent moves to dismiss the original petition, now fully briefed and submitted for decision, on the ground that it was filed after expiration of the statute of limitations.

For these reasons, petitioner will be given the opportunity to file a prepared motion to amend Claim 2 of the instant petition. Petitioner should clarify the substance of this claim, both as originally presented, and as he seeks to amend it; he should identify, with supporting documentation and clearly-identified dates, the exhaustion of this claim in the state courts; and petitioner should identify the legal principles that authorize amendment of the claim at this time. The court will make its determination after this matter is fully briefed.

In response to the above-quoted order, petitioner filed a motion to amend his second claim in the instant petition; respondent filed an opposition, and petitioner filed a reply. (Dkt. Nos. 18-9, 24.) These matters are addressed herein, together with respondent's motion to dismiss the original petition, petitioner's opposition thereto, and respondent's reply.*fn4 (Dkt. Nos. 12-4.)

II. Statute of Limitations

A. Legal Standards

The pertinent statute of limitations for habeas petitions challenging the denial of parole is contained in 28 U.S.C. § 2244(d)(1)(D), which establishes a period of one year after "the date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence."*fn5 Pursuant to this statute, a federal habeas petition must be filed within one year after the Board decision denying parole becomes final,*fn6 i.e., the "factual predicate" commencing the one-year limitation period. See Mardesich v. Cate, 668 F.3d 1164, 1171-72 (9th Cir. 2012); Shelby v. Bartlett, 391 F.3d 1061, 1062 (9th Cir. 2004); Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003); see also Tafoya v. Subia, 2010 WL 668920, *2-3 (E.D. Cal. 2010); Truong v. Hartley, 2011 WL 104737, * 2-3 (E.D. Cal. 2011); Nguyen v. Hill, 2013 WL 310566, *1 (E.D. Cal. 2013) (collecting cases).

This one-year limitation period is statutorily tolled from the filing date of the first state habeas petition until the California Supreme Court rejects the final collateral challenge. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), implied overruling on other grounds, as recognized by Nedds v. Calderon, 678 F.3d 777, 781-2 (9th Cir. 2012); see 28 U.S.C.§ 2244(d)(2) (period tolled during the pendency of a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim"). Moreover, "[t]he period between a California lower court's denial of review and the filing of an original petition in a higher court is tolled -- because it is part of a single round of habeas relief --so long as the filing is timely under California law." Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010).

B. Chronology

In the instant case, petitioner filed two "rounds" of state habeas petitions. The relevant chronology is as follows:

1. On June 11, 2010, the Board's February 11, 2010 decision denying petitioner parole became final. (See Respondent's Exhibit ("Rsp. Exh.") No. 1 (Board Decision), Dkt. No. 12-5 at 5.)*fn7

2. On July 23, 2010,*fn8 petitioner initiated his first round of state habeas petitions by filing a petition for writ of habeas corpus in the San Luis Obispo County Superior Court. (Id., Dkt. No. 12-1 at 24-49, plus exhibits.) The petition alleged that the Board's decision was unsupported by relevant, reliable evidence that petitioner posed an unreasonable risk to public safety; improperly relied on an allegedly unreliable 2009 psychological evaluation of petitioner; relied on an allegedly incomplete Board packet that was missing relevant documents; and violated petitioner's ex post facto rights.

3. On August 17, 2010, the superior court denied the petition in a written decision. (Rsp. Exh. No. 2, Dkt. No. 12-6 at 1-4; ...


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