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Marc Sardella-Lagomarsino v. Gary Swarthout

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


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; see also Dkt. No. 12-10 at 61-4.)

4. On August 25, 2010, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Second Appellate District, raising the same claims made in his superior court petition. (Rsp. Exh. No. 3, Dkt. No. 12-7 at 1-34, plus exhibits.)

5. On September 7, 2010, the Court of Appeal summarily denied the petition. (Rsp. Exh. No. 4, Dkt. No. 12-11 at 1-2.)

6. On September 14, 2010, petitioner filed a petition for review in the California Supreme Court, raising the same issues asserted in the superior and appellate courts. (Rsp. Exh. No. 5, Dkt. No. 12-12 at 1-31.)

7. On November 17, 2010, the California Supreme Court summarily denied review. (Rsp. Exh. No. 6, Dkt. No. 12-13 at 1-2.)

8. On November 23, 2010, petitioner commenced his second round of state habeas petitions, filing a petition for writ of habeas corpus in the Solano County Superior Court, alleging that the packet of documents before the Board on February 11, 2010 (hereafter "Board packet"), was incomplete. (Rsp. Exh. No. 7, Dkt. No. 12-14 at 1-22, plus exhibits.)

9. On January 21, 2011, the superior court denied the petition in a written decision. (Rsp. Exh. No. 8, Dkt. No. 12-16 at 1-5.)

10. On January 26, 2011, petitioner raised the same allegations in a petition for writ of habeas corpus filed in the California Court of Appeal, First Appellate District. (Rsp. Exh. No. 9, Dkt. No. 12-17 at 1-24, plus exhibits.)

11. On April 6, 2011, the Court of Appeal summarily denied the petition. (Rsp. Exh. No. 10, Dkt. No. 12-19 at 1-2.)

12. On April 28, 2011, petitioner filed a petition for review in the California Supreme Court, raising the same allegations asserted in the superior and appellate courts. (Rsp. Exh. No. 11, Dkt. No. 12-20 at 1-26, plus exhibits.)

13. On November 22, 2011, the California Supreme Court summarily denied review, citing In re Clark (1993) 5 Cal. 4th 750, 767-69. (Rsp. Exh. No. 12, Dkt. No. 12-22 at

4.) 14. On April 5, 2012, petitioner filed the instant federal habeas petition. Pursuant to this chronology, the one-year limitation period began on June 12, 2010, the day after the challenged Board decision became final. Absent any tolling, petitioner had until June 12, 2011, to file the instant petition.

C. Statutory Tolling 1. First Round of State Habeas Petitions

Respondent concedes that petitioner is entitled to statutory tolling for the period commencing with the July 23, 2010 filing of petitioner's first superior court petition (on the forty-first day of the limitation period), until the California Supreme Court denied review on petitioner's first round of petitions, 117 days later, on November 17, 2010. 28 U.S.C. § 2244(d)(2).

Thus, as of November 17, 2010, and absent further tolling, petitioner had an additional 117 days to file a federal habeas petition, or until October 7, 2011 (rather than the original deadline of June 12, 2011).

2. Second Round of State Habeas Petitions

Respondent contends that petitioner is not entitled to statutory tolling based on his second round of state habeas petitions. Respondent asserts that the allegations raised in petitioner's second round of petitions duplicated claims asserted in petitioner's first round, thus rendering petitioner's second round "successive," as implicitly found by the California Supreme Court when it summarily denied review with a citation to In re Clark, 5 Cal. 4th at 767-69.

Petitioner vigorously defends his position that his second set of habeas petitions was "not a second round [because they were filed] . . . in response to an administrative appeal and not the Board hearing." (Dkt. No. 15 at 1.) Petitioner explains that his second set of petitions asserts a violation of due process premised on the alleged failure of the California Department of Corrections and Rehabilitation ("CDCR"), and California State Prison-Solano ("CSP-SOL"), to provide the Board with specific and allegedly persuasive evidence supporting a grant of parole to petitioner pursuant to the Board's February 11, 2010 hearing. (See generally Dkt. No. 13.)

The facts underlying petitioner's argument are as follows. In a preliminary, unexhausted administrative appeal filed on February 9, 2009, in anticipation of a March 2009 parole hearing, petitioner challenged the absence of information*fn9 from the "Board packet," a copy of which was submitted to petitioner for his pre-hearing review. (See Dkt. No. 12-17 at 26.) The grievance was denied at the First Level. (Id. at 27.) Pursuant to his interview at the Second Level, by Correctional Case Records Supervisor C. McLemore, petitioner stated that the following documents were missing from his Board packet (also called a "BPH Lifer Packet"): "a CDC 128 B, Informational Chrono dated July 18, 2007; CDC 101, Work Supervisor's Report; CDCR 7230 MH, Interdisciplinary Progress Notes based on therapy; school transcripts; and a declaration from Donel Hardy (a victim of the crime for which petitioner was convicted) dated January 27, 2009." (Id.) On September 2, 2009, the grievance was "partially granted" at the Second Level, pursuant to the decision to include some of the requested information in petitioner's "lifer packet." (Id. at 27-8.) The Second Level decision authorized the inclusion of the requested CDC 128 B Informational Chrono dated July 18, 2007 (noting that this chrono "is in reference to a CDC 128-A"); and the January 27, 2009 declaration of Donel Hardy. The decision denied inclusion of the CDC 101 (Work Supervisor's Report), on the ground that such matters are not generally part of the "lifer packet;" and denied inclusion of the CDCR 7230 Interdisciplinary Progress Notes, on the ground that it is "Confidential Client/Patient Information and is not part of the Central File or the lifer packet." (Id. at 28.) Petitioner did not further pursue this appeal.

Thereafter, on January 14, 2010, petitioner filed a second, ultimately exhausted administrative appeal in anticipation of the underlying February 11, 2010 parole hearing. Without identifying specific items, petitioner asserted that "the packet is once again incomplete and lacks all the information that they previously said they would include (see Attached previous appeal for specifics)." (Id. at 31.) On February 2, 2010, pursuant to "partially granting" the appeal at the First Level, petitioner's July 18, 2007 CDC 128 B Informational Chrono, and the January 27, 2009 declaration of Donel Hardy were "faxed to appellant's attorney, Bill Prahl, and Kimberly Hanson, attorney for San Luis Obispo County, to have before the hearing scheduled for February 11, 2010." (Id. at 33.) On the day of the February 11, 2010 hearing, these items were included in a "ten-day hearing packet (Supplemental packet) [] made for the Lifer hearing and [] sent to the Lifer hearing . . . ." (Id.) Thereafter, on April 22, 2010, this appeal was "partially granted" at the Second Level, which "concurred" with the First Level decision on the ground that "the required CDC 128-B and the Declaration of Donel Hardy was (sic) faxed to the appellant's attorney and . . . included in the Packet the commissioner received prior to the hearing." (Id. at 34.) This appeal was denied at the Director's Level, on August 10, 2010, on the ground that "[i]t is apparent that the requested documents were [timely] prepared and made available" to the commissioners, petitioner's attorney and the attorney for San Luis Obispo County; fax confirmation receipts were placed in petitioner's central file. (Id. at 36.) The Director's decision further noted that, "[i]f the commissioner did not review the documents that the appellant is referring to, the appellant and his attorney had copies of these documents and the ability to present them at the hearing." (Id.)

On November 23, 2010, petitioner commenced his second round of state habeas petitions by filing, in the Solano County Superior Court, a challenge to the content of the February 11, 2010 "Board packet," based on two claims: that CDCR and CSP-SOL (1) "refused to adhere to a previous grant of an administrative appeal;" and (2) "refused to supply the Board of Parole Hearings with all relevant information at his parole suitability hearing." (Dkt. No. 12-14 at 13.) In an effort to distinguish this superior court petition from his prior petition, petitioner explained that he was "not challenging the BPH denial of parole in this petition as that is being challenged at another venue. It is only the 602's grant and the subsequent 602 for failure to adhere/supply documents that Petitioner challenges herein." (Dkt. No. 12-14 at 12 (original emphasis).)

The petition was denied on the merits by the superior court, summarily denied by the Court of Appeal, and denied with a citation to Clark by the California Supreme Court. Clark authorizes the California Supreme Court to summarily deny a petition for a writ of habeas corpus because it is successive or untimely. Clark, 5 Cal. 4th at 765 n.5. Either finding renders a petition improperly filed for statutory tolling purposes. See Goodridge v. Subias, 2010 WL 1286870 at * 4 (E.D. Cal. 2010); Gonzalez v. Runnels, 2008 WL 80744 at * 4 (E.D. Cal. 2008) ("[U]nder Pace, whether the state supreme court meant to indicate that the petition was untimely or successive would essentially be a distinction without a difference in the context of statutory untimeliness under AEDPA"); Delander v. Hubbard, 2008 WL 2622856 at * 6 (S.D. Cal. 2008) ("This citation [to Clark] demonstrates that the court is denying the petition because it is either successive or untimely ... California rules provide that a successive petition is by necessity a delayed petition.")see also In re Robbins (1998) 18 Cal. 4th 770, 780; In re Gallego (1998) 18 Cal. 4th 825, 833.

Under California law, "[i]t has long been the rule that absent a change in the applicable law or the facts, the [state] court[s] will not consider repeated applications for habeas corpus presenting claims previously rejected." Clark, 5 Cal. 4th at 767. "The court has also refused to consider newly presented grounds for relief which were known to the petitioner at the time of a prior collateral attack on the judgment." Id. at 767-68. Thus, Clark precludes, as successive, both "repeated applications for habeas corpus presenting claims previously rejected," and "newly presented grounds for relief which were known to the petitioner at the time of a prior collateral attack on the judgment." Clark, 5 Cal.4th at 767-68. The judicial remedy is denial of the petition without addressing the merits of any claims. In re Reno (2012) 55 Cal. 4th 428, 511, citing Clark, 5 Cal. 4th at 799.

D. Successive Round of State Petitions

It is clear that the California Supreme Court's citation to Clark was based on a finding that petitioner's second round of state habeas petitions was substantively "successive;" the petition would otherwise have been timely filed in the superior court within the extended limitation period (second superior court petition filed on November 23, 2010, before expiration of the extended October 7, 2011 limitation deadline pursuant to petitioner's first round of state petitions).

The undersigned's review of the petitions underscores the successive nature of petitioner's second round. Petitioner's second round of petitions was premised on two related due process claims: the refusal of CDCR and CSP-SOL to (1) "adhere to a previous grant of an administrative appeal;" and (2) "to supply the Board of Parole Hearings with all relevant information at his parole suitability hearing." (Dkt. No. 12-14 at 13.) Pursuant to his first claim ("refusal to adhere"), petitioner alleged that the following items were not supplied to the Board for petitioner's February 11, 2010 hearing, despite their administratively-ordered inclusion: the Hardy declaration; the CDC 128B Chrono; and "the 'blue packet' that Petitioner had prepared for his hearing and included work reports and one-on-one therapy notes [] termed 'Interdisciplinary Notes'. . . ." (Id. at 16.) (The court notes, however, that the inclusion of only the first two items was administratively ordered.) Pursuant to his second claim ("refusal to supply"), petitioner alleged that, despite his attempt to provide the Board with the subject Interdisciplinary Notes, they were improperly excluded at the hearing on confidentiality grounds (despite the express exclusion of these records on the same ground pursuant to petitioner's administrative appeal). (Id. at 11; see also Feb. 11, 2010, BPT Transcript, at 36-8).

Both of these claims were previously asserted, with some variation, in petitioner's first round of petitions. In Claim 3 (also designated Claim "C") of his first superior court petition, petitioner alleged a due process violation based on the Board's alleged refusal to consider "all relevant and reliable evidence" supporting petitioner's suitability for parole, premised on the alleged exclusion of the Hardy declaration, and the exclusion of "the notes and comments of the psychologists who have spent numerous hours personally interacting and assessing Petitioner['s] mental state" (i.e. Interdisciplinary Progress Notes). (Dkt. No. 12-1 at 30, 39-40; see also id. at 28-9.) The first petition does not reference the CDC 128B Chrono.

More importantly, petitioner was equally aware, when he filed his first superior court petition on July 23, 2010, of all the materials before (and not before) the Board at the February 11, 2010 hearing. Because there was no change in the law or facts, the California Supreme Court's November 17, 2010 rejection of petitioner's initial challenge to these matters precluded their further consideration pursuant to petitioner's second round. See Clark, 5 Cal. 4th at 767 (court is precluded from "consider[ing] repeated applications for habeas corpus presenting claims previously rejected"). Moreover, to the extent petitioner added a new claim to his second round of petitions (absence of the CDC 128B Chrono), the court was precluded from considering it as a "newly presented ground[] for relief . . . known to the petitioner at the time of a prior collateral attack on the judgment." Id. at 767-68.

Petitioner vigorously maintains that his second round of state petitions are not successive because they don't directly challenge the Board's February 11, 2010 parole denial, but assert a denial of due process at the hearing due to the alleged failure of CDCR and CSP-SOL officials to provide a full record. This attempted distinction is unpersuasive -- both rounds of petitions challenged the Board's February 11, 2010 decision denying parole, and both sought a writ of habeas corpus directing petitioner's release on parole. In addition, petitioner's implicit effort to rely on the administrative exhaustion of his second inmate appeal as the trigger date for filing his second petition is unavailing. The "factual predicate" for filing a federal habeas action challenging a parole denial is the date the parole decision becomes final. Mardesich, 668 F.3d at 1171-72. The requirement that state remedies be exhausted prior to filing a federal habeas petition applies to state judicial remedies, not administrative remedies. 28 U.S.C. § 2254(b)(1); Redd, 343 F. 3d at 1083.

For these reasons, the undersigned finds that the claims presented in petitioner's second round of state court habeas petitions were successive.

E. Untimely Federal Petition

Due to the successive nature of petitioner's second round of state habeas petitions, he is not entitled to statutory tolling for the period of time during which these petitions were pending. 28 U.S.C. § 2244(d)(2) (only properly filed applications for state post-conviction or other collateral review may toll the statute of limitations). In the absence of statutory tolling based on petitioner's second round of state petitions, petitioner's filing of the instant federal habeas petition was untimely. The one-year limitation period for filing a federal petition, tolled only by petitioner's first round of state petitions, expired on October 7, 2011; petitioner filed the instant federal habeas petition more than five months later, on April 5, 2012.

III. Motion to Amend

Remaining for decision by this court is petitioner's motion to amend his second claim.*fn10

An application for a writ of habeas corpus may be amended pursuant to the Federal Rules of Civil Procedure. See 28 U.S.C. § 2242; Rule 12, Rules Governing § 2254 Cases. This court looks to Rule 15, Federal Rules of Civil Procedure, to address petitioner's motion to amend his habeas petition. James v. Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001). Leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a)(2). Factors that may justify denying a motion to amend are "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowing the amendment, [and] futility of the amendment . . . ." Foman v. Davis, 371 U.S. 178, 182 (1962); see also Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) ("bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings") (citation omitted).

Application of these factors to petitioner's motion to amend demonstrates that amendment would be futile, given the untimely filing of the original petition. Accordingly, petitioner's motion to amend should be denied.

IV. Conclusion

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Petitioner's motion to strike (Dkt. No. 15) respondent's reply (to petitioner's opposition to respondent's motion to dismiss), is denied.

Additionally, IT IS HEREBY RECOMMENDED that:

1. Petitioner's motion to amend (Dkt. No. 18) his federal habeas petition, should be denied.

2. Respondent's motion to dismiss (Dkt. No. 12) this action, should be granted.

3. Petitioner's application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (Dkt. No. 1), should be dismissed because untimely filed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Should petitioner file objections, he may address whether a certificate of appealability should issue in the event petitioner files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing § 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant). A certificate of appealability may issue under 28 U.S.C. §2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).


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