UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
March 5, 2013
BRIAN KEITH STAFFORD,
DANIEL PARAMO, WARDEN,
The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
On December 12, 2012, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody." On January 10, 2013, Respondent filed a motion to dismiss the Petition, asserting: (1) the claims in the Petition are not cognizable on federal habeas review; and (2) even if cognizable, the Petition is untimely. On January 28, 2013, Petitioner filed a "Response to Respondent's Motion to Dismiss."
On March 21, 1991, Petitioner pled guilty to first degree murder and was sentenced to a prison term of thirty-three years to life (Respondent's Lodgment 2). On October 29, 2010, Petitioner appeared before the Board of Parole Hearings ("the Board") for an initial parole suitability hearing (see Respondent's Lodgment 1 (transcript)). The Board denied parole for seven years (id., pp. 123-38 (decision)).
On February 8, 2012, prior to filing the instant Petition, Petitioner filed a "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody," in Case No. CV 12-1490-GHK(E) (the "Former Petition"). The Former Petition raises a number of claims, including a challenge to the Board's 2010 parole denial. The Former Petition is still pending.
The present Petition purports to raise "legal questions" concerning terminology sometimes utilized in parole suitability determinations. Specifically, Petitioner seeks legal definitions for the terms: "insight," "remorse," "liberty interest," "nexus," and "miscarriage of justice," as those terms are sometimes used in Board decisions. Petitioner also questions whether indeterminate life prisoners in California have "maximum eligible parole dates," and whether a "court relinquish[es] total authority of a prisoner's sentence once his sentence has been finalized." See Petition, Grounds One and Two. Petitioner asks that this Court answer Petitioner's various legal questions and also remand his case back to the Board with directions to follow and apply California Penal Code section 3041. See Petition, Ground One, p. 5.
Petitioner also appears to raise an additional challenge to the Board's alleged decision to apply Marsy's Law*fn1 to deny Petitioner's parole for seven years. See Petition, Ground Two, pp. 3-5; but see Response, p. 3 (Petitioner asserting that the present Petition raises only "question(s) of law to which Petitioner seeks clarification based on Petitioner's vested liberty interest"). This same challenge appears to be presented, at least in part, in Ground Three of the Former Petition. See Report and Recommendation filed in Case No. CV 12-1490-GHK(E) on October 10, 2012, pp. 4-5 (summarizing claims).
On May 31, 2012, Petitioner filed a habeas petition with the Santa Barbara County Superior Court reportedly presenting the legal questions raised herein,*fn2 which that court denied in a reasoned decision (Respondent's Lodgment 2). On November 20, 2012, the California Supreme Court denied a habeas petition filed by Petitioner, citing In re Miller, 17 Cal.2d 734, 735 (1941). See California Supreme Court Order attached to Petition.
I. Grounds One and Two of the Present Petition Plainly Do Not Entitle Petitioner to Federal Habeas Relief.
A district court may dismiss a habeas petition summarily "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing Section 2254 Cases in the District Courts; Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998). It plainly appears that Petitioner is not entitled to federal habeas relief on Grounds One and Two of the present Petition.
Essentially in a vacuum, Petitioner seeks answers to legal questions concerning parole terminology that may (or may not) be applied to him at some time in the future. The Constitution's "case or controversy" jurisdictional requirement precludes the granting of such an advisory opinion. See U.S. Const., art. III; Preiser v. Newkirk, 422 U.S. 395, 401 (1975) ("a federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them") (citations and internal quotations omitted); Thomas v. Anchorage Equal Rights Com'n, 220 F.3d 1134, 1138 (9th Cir. 2000), cert. denied, 531 U.S. 1143 (2001) ("Our role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution."); see also Clapper v. Amnesty International USA, 2013 WL 673253, at *10 (U.S. Feb. 26, 2013) (courts are "reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment" in the future).
Moreover, none of Petitioner's definitional claims impact directly on the fact or duration of his confinement. Petitioner asserts that he is not challenging herein the Board's 2010 denial of his parole. See Response, p. 3. Any success on the merits of Petitioner's requests to define legal terms in a vacuum would not necessarily impact the fact or duration of Petitioner's confinement. Where claims do not impact the fact or duration of confinement, the claims are not properly cognizable on habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973); Alcala v. Rios, 434 Fed. App'x 668, 669 (9th Cir. May 25, 2011);*fn3 see also Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) ("According to traditional interpretation, the writ of habeas corpus is limited to attacks upon the legality or duration of confinement.") (citations omitted).
Finally, and in any event, the interpretation of California state law terminology applicable to California's parole system presents only matters of state law not cognizable in this federal habeas proceeding. See Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) ("[T]he responsibility for assuring that the constitutionally adequate procedures governing California's parole system are properly applied rests with California courts, and is no part of the Ninth Circuit's business."); Roberts v. Hartley, 640 F.3d 1042, 1047 (9th Cir. 2011) (federal habeas court is not authorized "to reevaluate California's application of its rules for determining parole eligibility") (citation omitted); see generally Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) ("we have repeatedly held that federal habeas corpus relief does not lie for errors of state law") (citations and internal quotations omitted); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (same).
II. Any Challenge Herein to the Board's 2010 Denial of Parole is Untimely.
To the extent Petitioner is challenging in this proceeding the Board's 2010 parole denial, the present Petition is untimely. The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners. Section 2244(d)(1)(D) generally governs the accrual of a claim challenging a parole decision. See Mardesich v. Cate, 668 F.3d 1164, 1172 (9th Cir. 2012); Redd v. McGrath, 343 F.3d 1077, 1081-82 (9th Cir. 2003); see also Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004) (prison disciplinary decision). Section 2244(d)(1)(D) provides:
(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 --
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Id. "AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis." Mardesich v. Cate, 668 F.3d at 1171.
Under applicable law, the Board's decision became final on February 26, 2011, 120 days after the October 29, 2010 decision. See Cal. Penal Code § 3041(b); Cal. Code of Regs., tit. 15, § 2041(h); King v. Biter, 2012 WL 2559263, at *2 (E.D. Cal. June 29, 2012); Burch v. Biter, 2012 WL 682856, at *4 (C.D. Cal. Feb. 28, 2012), adopted, 2012 WL 682745 (C.D. Cal. Feb. 29, 2012); Tidwell v. Marshall, 620 F. Supp. 2d 1098, 1100-01 (C.D. Cal. 2009). Thus, the statute of limitations began running on February 27, 2011 and, absent tolling, expired on February 26, 2012. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978 (2001). Petitioner constructively filed the present Petition on December 4, 2012.*fn4 Absent sufficient tolling, the Petition is untimely.
Section 2244(d)(2) tolls the statute of limitations during the pendency of "a properly filed application for State post-conviction or other collateral review." Petitioner is not entitled to statutory tolling between the date the Board's decision became final and the date he filed his Superior Court petition. See Porter v. Ollison, 620 F.3d at 958; Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge). Petitioner apparently filed his Superior Court petition on or about May 31, 2012. See Respondent's Lodgment 2, p. 1. Such filing did not trigger statutory tolling because the filing occurred more than one year after the statute began to run. The statute of limitations thus expired prior to this filing. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) (section 2244(d) does not permit reinitiation of limitations period that ended before state petition was filed).
The United States Supreme Court has recognized that 28 U.S.C. § 2244(d) is subject to equitable tolling in appropriate cases. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). For a petitioner to be entitled to equitable tolling, the petitioner must establish: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. at 2562 (citations and quotations omitted); Lawrence v. Florida, 549 U.S. 327, 336 (2007); Porter v. Ollison, 620 F.3d at 959. The threshold necessary to trigger equitable tolling "is very high, lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 130 S. Ct. 244 (2009) (citations and internal quotations omitted). Petitioner bears the burden to show equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009). Petitioner must show that the alleged extraordinary circumstance was a proximate cause of his untimeliness and that the extraordinary circumstance made it impossible to file a petition on time. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009); Roy v. Lampert, 465 F.3d 964, 973 (9th Cir. 2006), cert. denied, 549 U.S. 1317 (2007).
Petitioner has not alleged much less demonstrated that he is entitled to equitable tolling. Nor does there appear in the record any arguable basis for equitable tolling. The Petition is untimely.
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation;
(2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.