United States District Court, E.D. California
ORDER & FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss. (ECF No. 14.) For the reasons stated herein, the undersigned recommends that respondent's motion be granted on grounds that petitioner's claims are barred by the statute of limitations.
In response to the motion to dismiss, on July 6, 2015, petitioner filed a pleading titled, "Motion to Defer Ruling Pending a Receipt From Petitioner of a Traverse..." (ECF No. 15.) In this pleading, petitioner addresses the merits of respondent's motion. (Id.) Petitioner also requests that the court defer ruling on respondent's motion pending "a receipt of a traverse." (Id. at 3.) It appears that petitioner is requesting that the court deny the motion to dismiss and consider the merits of his claims, which would require the filing of an answer and traverse. Because petitioner has addressed the merits of respondent's motion, the undersigned construes petitioner's July 6, 2015 pleading as an opposition.
Petitioner's Claims for Relief
In his opposition, petitioner has clarified the grounds for relief in the petition. Petitioner's argument appears to be that in 1977, California changed from the Indeterminate Sentencing Law ("ISL") to the Determinate Sentencing Law ("DSL"). See In re Neal, 114 Cal.App.3d 141, 144 (1980). The DSL provided that all prison sentences, including those previously imposed under the ISL, would now be for a fixed term of imprisonment and a specific parole release date would be set. ( Id., citing Cal. Penal Code § 1170.2(a)).
In the petition, petitioner cites Chatman v. Marquez, 754 F.2d 1531, 1533 (9th Cir. 1985), where the petitioner had been sentenced to life without the possibility of parole under the ISL. In Chatman, the Ninth Circuit observed that "[e]ffective in 1977, the state legislature adopted a determinate sentencing law ("DSL") that entitled Chatman to parole consideration." Id., citing Cal. Penal Code § 1170.2. Citing Chatman, petitioner apparently argues that because he was sentenced to life without the possibility of parole under the ISL, he is entitled to parole consideration under the DSL.
In the California Court of Appeal and the California Supreme Court, petitioner argued that his failure to receive parole consideration violated the Ex Post Facto Clause. (ECF No. 1 at 4-5.) Petitioner also appears to be raising a due process claim.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996, 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: (A) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (C) 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 (D) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). The 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).
The AEDPA's one year time limit did not begin to run against any prisoner before the date of the Act's enactment. Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). A prisoner with a state conviction finalized before April 24, 1996, therefore, had until April 24, 1997, to file a federal habeas petition on time. Patterson v. Stewart, 251 F.3d 1242, 1246 (9th Cir. 2001).
In 1984, petitioner was convicted of two counts of first degree murder and sentenced to life without the possibility of parole. (ECF No. 14-1 at 5.) In 1984, petitioner was also convicted of five counts of burglary, two counts of robbery and one count of grand theft. (Id. at 3-4.) In 1986, petitioner was also convicted of being a prisoner in possession of a weapon. (Id. at 7.)
Respondent argues that because petitioner's convictions became final prior to enactment of AEDPA, he had until April 28, 1997, to file a timely federal petition. Neither respondent nor petitioner has informed the court of the actual date petitioner's convictions became final. However, because petitioner's relevant convictions occurred in 1984, it is reasonable to infer that his convictions were final prior to the enactment of AEDPA in 1996.[ ...