United States District Court, N.D. California
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS; DENYING CERTIFICATE OF APPEALABILITY Re: Dkt. No. 9
HAYWOOD S. GILLIAM, Jr., District Judge.
Petitioner, a pro se prisoner, filed this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his gang validation on due process grounds. Respondent has moved to dismiss the petition as untimely. Petitioner did not file any opposition to the motion, and the time to do so has passed.
On December 2, 2009, petitioner's jailors at Pelican Bay State Prison validated him as a gang associate of the Mexican Mafia prison gang. Ex. 1. Petitioner will be eligible for an active/inactive review of his gang status in July 2015. Id. Petitioner filed an administrative appeal through the prison appeals process, and the appeal was denied at the final level of review on June 22, 2010. Ex. 2.
On May 19, 2011, petitioner filed a habeas petition in the Del Norte County Superior Court. Ex. 3. That petition was denied on May 3, 2013. Ex. 4.
On May 31, 2013, petitioner filed a habeas petition in the California Court of Appeal. Ex. 5. That petition was denied on June 20, 2013. Ex. 6.
On October 30, 2013, petitioner filed a habeas petition in the California Supreme Court. Ex. 7. That petition was denied on February 11, 2014. Ex. 8.
On July 29, 2014, petitioner filed his federal habeas petition in this Court.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996 and imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year time limit. Id. § 2244(d)(2).
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, " even if the petition challenges an administrative decision rather than a state court judgment. Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004) (quoting 28 U.S.C. § 2244(d)(1)). For prisoners challenging administrative decisions such as the revocation of good time credits or the denial of parole, section 2244(d)(1)(D) applies. See id. at 1066. Under section 2244(d)(1)(D), the one-year limitation period starts on the date upon which "the factual predicate of the claim or claims presented could have been date petitioner signed each petition because that is the earliest possible date he could have submitted the petition to prison officials for mailing. discovered through the exercise of due diligence." The time begins "when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance." Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001); see Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003) (limitations period began to run when the Board denied prisoner's administrative appeal challenging denial of parole).
Here, the Court finds that June 22, 2010, the date of the final denial of petitioner's administrative appeal, constitutes the factual predicate for the claims in this case. Therefore, section 2244(d)'s one-year limitation period began running against petitioner the next day - June 23, 2010. Thus, petitioner had one year from the time the limitations period started running - or until June 22, 2011 - to file his federal habeas petition, absent tolling. Petitioner did not file the present petition until July 29, 2014, over three years after the limitations period had expired. The petition is therefore untimely unless petitioner can show that he is entitled to tolling.
A. Statutory Tolling
Petitioner does not claim he is entitled to statutory tolling. Even if petitioner had claimed such tolling, however, he would not be eligible for it. Pursuant to 28 U.S.C. § 2244, the one-year limitations period is tolled for 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." See 28 U.S.C. § 2244(d)(2). An application for review remains "pending" in state court until it ...