United States District Court, Central District of California
November 6, 2014
ELLIOTT LEW GRIFFIN, Petitioner,
SANDRA ALFARO, Respondent
Elliott Lew Griffin, Petitioner, Pro se, Delano, CA.
For Sandra Alfaro, Respondent: Denise A Yates, LEAD ATTORNEY, CAAG - Office of the Attorney General, California Department of Justice, San Francisco, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ALICIA G. ROSENBERG, United States Magistrate Judge.
The court submits this Report and Recommendation to the Honorable David O. Carter, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California. For the reasons set forth below, the magistrate judge recommends that Respondent's motion to dismiss be granted and the Petition for Writ of Habeas Corpus be denied.
SUMMARY OF PROCEEDINGS
In 2004 Petitioner was convicted of torture, assault by means of force likely to produce great bodily injury, and battery with serious bodily injury. He was sentenced to seven years to life. (Petition at 2.)
On June 9, 2009, the Parole Board denied Petitioner parole and scheduled his next parole hearing for June 9, 2019. (Petition, Ex. B.)
On October 29, 2010, Petitioner constructively filed a habeas petition in the Superior Court. (MTD, Ex. 1 & Proof of Service.) Petitioner's habeas petition before the California Supreme Court was denied on April 9, 2014. (Petition, Ex. C.)
On May 20, 2014, Petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody in this court. (Petition, back of envelope.) He raises four grounds. (Id. at 5-6.)
On July 16, 2014, Respondent filed a motion to dismiss (" MTD") based on expiration of the statute of limitations. On August 18, 2014, Petitioner filed an opposition. On September 3, 2014, Respondent filed a reply. On October 17, 2014, Petitioner filed a document that the court construed as a supplemental brief (" Supp. Brief") in support of his opposition to the MTD. (Dkt. No. 14.)
STATUTE OF LIMITATIONS
The petition was filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"). Therefore, the court applies the AEDPA in reviewing the petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
The AEDPA has a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The limitation period starts running on the latest of either the date when a conviction becomes final under 28 U.S.C. § 2244(d)(1)(A) or a date set in § 2244(d)(1)(B)-(D). The only relevant provision here is subdivision (d)(1)(D).
A. Date of Discovery -- 28 U.S.C. § 2244(d)(1)(D)
Section 2244's " one-year limitation period applies to all habeas petitions filed by persons in 'custody pursuant to the judgment of a State court, ' 28 U.S.C. § 2244(d)(1), even if the petition challenges a pertinent administrative decision rather than a state court judgment." Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004); see also Redd v. McGrath, 343 F.3d 1077, 1082 (9th Cir. 2003) (the statute starts to run when the Parole Board denies an inmate's administrative appeal).
The statute of limitations begins to run on " the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."
All four grounds in the petition involve challenges to the Parole Board's 2009 decision based on the class action in the Eastern District of California, Gilman v. Brown, Case No. CIV S-05-830 LKK/CKD.
Respondent argues that Petitioner was aware of the factual predicate of his claim on June 19, 2009, when the Parole Board scheduled his next parole hearing ten years later on June 19, 2019. (MTD at 3.) The Parole Board's decision became final 120 days later on October 7, 2009. 15 Cal. Code Regs § 2041(h). Barring tolling, the statute of limitations expired on October 7, 2010.
B. Statutory Tolling
Petitioner is not entitled to statutory tolling because his first collateral attack was constructively filed on October 29, 2010 (MTD, Ex. 1), after the statute of limitations had expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (" section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed").
C. Equitable Tolling
" [T]he timeliness provision in the federal habeas corpus statute is subject to equitable tolling." Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2554, 177 L.Ed.2d 130 (2010). " [A] 'petitioner' is 'entitled to equitable tolling' only if he shows '(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 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). " The diligence required for equitable tolling purposes is " reasonable diligence, " not " maximum feasible diligence." Id. at 2565 (citations and quotation marks omitted). The extraordinary circumstances must have been the cause of an untimely filing. Pace, 544 U.S. at 418. " [E]quitable tolling is available for this reason only when '" extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time" ' and '" the extraordinary circumstances" were the cause of [the prisoner's] untimeliness.'" Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citations omitted, emphasis in original).
Petitioner states that on November 23, 2009 he was placed in Ad-Seg at the California Men's Colony, where he was then incarcerated. All of his property was taken from him, including his legal file. He states that he had very limited access to the law library until he was released from Ad-Seg on February 18, 2010. Thus, Petitioner argues he is entitled to equitable tolling for that period of time. (Opposition at 7.)
Petitioner's argument is without merit. The limitations period ran from October 7, 2009 to October 7, 2010. Even assuming Petitioner was unable to work on his collateral attack of the Parole Board's decision while he was in Ad-Seg, he was released on February 18, 2010, almost eight months before the statute expired. Petitioner has not demonstrated that the period of a few months before his release from Ad-Seg made it impossible for him to file a habeas petition in the Superior Court much earlier than he did. Indeed, Petitioner makes it clear in his other arguments ( see below) that he was intentionally waiting for some sort of legal signal from the California courts regarding his arguments on the merits of the petition. Finally, Petitioner's habeas petition on the merits of his 2004 conviction was pending in this court at the time Petitioner was in Ad-Seg. See Griffin v. Marshall, Case No. CV 09-1424-DOC, (AGR) (filed on July 29, 2009 and dismissed on September 17, 2012). On November 23, 2009, Respondent filed an answer. Id., Dkt. No. 12. On December 16, 2009, when Petitioner was in Ad-Seg, he filed a request for an extension of time to file a reply. Id., Dkt. No. 14. In his declaration, Petitioner stated that he needed time " to fully research the . . . Answer." Id. at 2. He also stated that his typewriter was not working and was being repaired. Id. He never mentioned anything about Ad-Seg or not having his legal property. On January 27, 2010, Petitioner filed a 73-page reply, of which 58 pages were argument. Id., Dkt. No. 17. At the same time, he lodged a hearing transcript from his California criminal proceedings. Id., Dkt. No. 16.
Petitioner has failed to demonstrate that " extraordinary circumstances" were the cause of his untimeliness. Bills, 628 F.3d at 1097.
D. Different Discovery Date
Petitioner argues he is entitled to a later discovery date. Petitioner states that Marsy's Law was enacted in 2009 but argues that the discovery date should be May 11, 2011, when In re Vicks, 195 Cal.App.4th 475, 125 Cal.Rptr.3d 627 (2011) was decided by the California Court of Appeal. (Opposition at 2.) The Court of Appeal held that Marsy's Law violated the Ex Post Facto clause and " may not be applied to inmates whose crimes predated the effective date of Marsy's Law." In re Vicks, 125 Cal.Rptr.3d at 650. On March 4, 2013, the California Supreme Court reversed the Court of Appeal and held that Marsy's Law did not violate the Ex Post Facto clause. In re Vicks, 56 Cal.4th 274, 153 Cal.Rptr.3d 471, 295 P.3d 863, cert. denied, 134 S.Ct. 283, 187 L.Ed.2d 205 (2013).
Petitioner's argument is rejected. As subdivision (d)(1)(D) states, the statute started to run when Petitioner became aware of the factual predicate of his claims, not their legal significance. Petitioner was aware of the facts in support of his claims as of the date of the Parole Board's denial. Petitioner could have challenged Marsy's Law collaterally as other inmates have done. He cannot sit on his claim and wait for a favorable legal decision. Indeed, Petitioner collaterally attacked the judgment of the Parole Board before the Court of Appeal published its decision in Vicks . For similar reasons, Petitioner's other arguments in favor of different discovery dates for different grounds are rejected as meritless. (Opposition at 3-6.)
For the reasons discussed above, it is recommended that the district court issue an order (1) accepting this Report's findings and Recommendation; (2) granting Respondent's motion to dismiss; and (3) directing that judgment be entered denying the petition with prejudice.