The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER: 1) ADOPTING IN PART THE REPORT AND RECOMMENDATION, (Doc. No. ) 12);
(2) REJECTING IN PART AND SUSTAINING IN PART ) PETITIONER'S OBJECTIONS, (Doc. Nos. 16, 21);
(3) DENYING AND DISMISSING ) PETITION FOR WRIT OF HABEAS ) CORPUS,
(Doc. No. 1); AND ) (4) DENYING CERTIFICATE OF APPEALABILITY
On February 24, 2013, Manuel M. Soares ("Petitioner"), a state prisoner proceed-pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition"). (Doc. No. 1.) The Petition alleged that the California courts and the Department of Corrections and Rehabilitation improperly denied him his earned conduct credits in violation of due process. (Id. at 8.) On January 31, 2013, the Court issued an order setting the briefing schedule regarding Petitioner's motion for reconsideration and the filing of objections to the Report and Recommendation ("R&R) issued by Magistrate Judge William McCurine, Jr.*fn1 (Doc. No. 17.) In doing so, the Court specifically instructed Petitioner to address: (1) why the Petition is not time barred; (2) why statutory tolling is applicable; and (3) why equitable tolling is applicable. Petitioner filed objections to the R&R on March 15, 2013, (Doc. No. 21), and Respondent filed a reply on April 9, 2013, (Doc. No. 26).
Presently before the Court is the Petition, the R&R, Petitioner's motion for reconsideration, Petitioner's objections to the R&R, and Respondent's reply. Accordingly, for the reasons stated below, the Court ADOPTS IN PART the R&R, (Doc. No. 12), DENIES Petitioner's request for reconsideration, (Doc. No. 16), OVERRULES Petitioner's objections, (Doc. No. 21), DENIES and DISMISSES the Petition, (Doc. No. 1), and DECLINES to issue a certificate of appealability.
On July 12, 2006, a jury convicted Petitioner of: (1) corporal injury to a spouse; (2) residential burglary; (3) vandalism; and (4) attempting to make a criminal threat.*fn2
(Lodgment 4 at 1.) On September 15, 2006, the Superior Court sentenced Petitioner to a term of nineteen years and eight months in state prison. (Lodgment 4 at 1.) On September 21, 2006, Petitioner entered state prison and was concurrently enrolled in the Inmate Work/Training Incentive Program (IWTIP). (Lodgment 3 at Ex. G; Doc. No. 1 at 12). However, Petitioner was not given a job assignment at that time. (Doc. No. 21 at 2.)
Petitioner filed a timely notice of appeal of his underlying conviction, but on August 24, 2007, the California Court of Appeal affirmed the judgment. (Lodgment 4 at 1.) On November 14, 2007, the California Supreme Court denied a petition for review. .) Since Petitioner's conviction became final on February 12, 2008, (ninety days after the California Supreme Court denied the petition for review), Petitioner has filed at least five habeas petitions in the Superior Court, all of which were denied for various reasons. (Doc. 1, Ex. H at 1:27-2:1.) Petitioner has also filed a habeas petition in the California Court of Appeal, which was denied on April 9, 2008. (Id. at 2:1-3.) On June 18, 2008, the California Supreme Court denied review of Petitioner's state habeas petition, and on March 3, 2009, the California Court of Appeal denied Petitioner's request for reconsideration of its January 10, 2008 order. (Id. at 4-8.) All of these petitions raised issues unrelated to the issues presented in the pending Petition.*fn3
Thereafter, in or around May or June 2010, Petitioner was moved to Group A1-A, and given a work assignment that entitled him to earn worktime credits. (Lodgment 3, Ex. G.) After receiving his work assignment, Petitioner heard some inmates discussing issues with the California Department of Corrections and Rehabilitation ("CDCR") and decided to file an administrative grievance on June 1, 2010 to ensure he was receiving his previously earned conduct credits. (Doc. No. 1 at 9, 12.) CDCR found Petitioner was not entitled to halftime credits under California Penal Code Section 1191.3, and denied Petitioner's administrative appeal after each of Petitioner's three requests. (Lodgment 3, Ex. G.)
On April 30, 2011, Petitioner filed a habeas petition in Superior Court, raising for the first time the claim that he was not receiving custody credit at the rate determined by the CDCR in violation of his due process rights. (Lodgment 3). The Superior Court denied the petition on July 1, 2011, finding it untimely, without merit, and successive. (Lodgement 4.) Petitioner then filed a petition with the California Court of Appeal on July 20, 2011. (Lodgement 5.) The California Court of Appeal denied the petition on August 8, 2011, stating that: (1) Petitioner was barred from bringing numerous, piecemeal petitions in an effort to "try out his contentions;" (2) the petition was time-barred as Petitioner knew, or should have known, how much worktime credit he was receiving when he filed his original petition in Superior Court in 2007; and (3) the petition was nonetheless without merit because Penal Code § 2933.1(a) restricts worktime credits to 15% when the inmate has been convicted of a violent crime, and Penal Code § 667(c)(5) states that worktime credits shall not exceed one-fifth of the total term of imprisonment if the defendant has been previously convicted of a felony. (Id. at 4:9-25.) Thus, because Petitioner was convicted of residential burglary (a violent felony) and Petitioner admitted that he had previously been convicted of an unrelated felony, both section 2933.1(a) and section 667(c)(5) applied. (Id.) As a result, the California Court of Appeal found CDCR could legally restrict the rate of worktime credit to 15%, instead of the 20% rate currently applied. (Id. at 5:1-3.) Petitioner then filed a petition with the California Supreme Court on August 22, 2011, (Lodgment 7), which was summarily denied on February 1, 2012, (Lodgment 8).
Petitioner filed the federal Petition on February 24, 2012. (Doc. No. 1). On June 26, 2012, Respondent filed an answer, arguing that the Petition should be denied because it is untimely and procedurally barred, fails to state a federal question, and Petitioner is not entitled to the worktime credits he is requesting. (Doc. No. 9.) Petitioner filed a traverse on July 11, 2012. (Doc. No. 11.) On November 27, 2012, Magistrate Judge William McCurine, Jr. issued an R&R, recommending that the Court dismiss the Petition with prejudice because the Petition was time-barred and neither statutory or equitable tolling were inappropriate. (Doc. No. 12.) The R&R also found Petitioner's claim to additional credits without merit. (Id.) After neither party filed written objections to the R&R, the Court adopted the R&R in full and denied the Petition. (Doc. No. 13.)
On January 17, 2013, Petitioner informed the Court that his failure to respond or otherwise object to the R&R was excusable because: (1) he never received a copy of the R&R; (2) he was admitted to Atascadero State Hospital ("the Hospital") from November 27, 2012 to December 17, 2012; and (3) upon returning from the Hospital he was immediately placed in administrative segregation, whereby he did not have access to any of his personal property for three weeks. (Doc. No. 16.) Therefore, the Court granted Petitioner's request, sent a copy of the R&R to Petitioner, and allowed Petitioner additional time to respond or otherwise file objections to the R&R. On March 15, 2013, Petitioner filed his objections to the R&R, (Doc. No. 21), and on March 26, 2013, Respondent filed a reply, (Doc. No. 22).*fn4
The R&R recommended dismissal of the Petition because the Petition was filed after the one year statute of limitations had expired, and neither statutory nor equitable tolling applied. The R&R also recommended dismissal of the Petition on the merits, finding that Petitioner is not eligible for day-for-day credits under California Penal Code Section 2933.1(a). Petitioner objects to the R&R on two grounds. First, Petitioner contends the Petition is timely because the statute of limitations could not have commenced until June 2010, after he was placed in Group 1A-A and eligible to receive worktime credits; and second, Petitioner contends any "worktime" credits disallowed under Penal Code 2988.1(a), should nonetheless be awarded as conduct/behavior credits. The Court addresses each in turn.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, created a one-year statute of limitations for the filing of a federal habeas petition by a state prisoner. The applicable statute of limitations is set forth in 28 U.S.C. Section 2244(d) as follows:
(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 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 recog- nized 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 ...