United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S
MOTION TO DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS
CORPUS (ECF No. 21)
2010, Petitioner was civilly committed to the custody of the
California Department of State Hospitals (“DSH”)
pursuant to California's Sexually Violent Predator Act
(“SVPA”), Cal. Welf. & Inst. Code
§§ 6600 et seq. (LD 4 at 1). On April 3, 2012, the
California Court of Appeal, Sixth Appellate District reversed
the commitment order and remanded the case for
reconsideration of Petitioner's equal protection claim.
(LD 1 at 2, 41). On June 27, 2012, the California Supreme
Court denied Petitioner's petition for review. (LDs 2,
3). On remand, the Santa Clara County Superior Court again
committed Petitioner to the custody of DSH. (LD 4 at 2). On
November 25, 2013, the California Court of Appeal affirmed
the order of commitment. (LD 4 at 2, 14). On February 11,
2014, the California Supreme Court denied Petitioner's
petition for review. (LDs 5, 6).
has filed three state habeas petitions challenging his
commitment. On August 24, 2015,  Petitioner filed a state
habeas petition in the Santa Clara County Superior Court,
which denied the petition on October 19, 2015. (LDs 7, 8). On
October 27, 2015, Petitioner filed a state habeas petition in
the California Court of Appeal, Sixth Appellate District,
which denied the petition on February 4, 2016. (LDs 9, 10).
On February 9, 2016, Petitioner filed a state habeas petition
in the California Supreme Court, which denied the petition on
May 18, 2016. (LDs 11, 12).
addition to the instant action, Petitioner has filed three
federal actions regarding his civil commitment. On November
13, 2014, Petitioner filed a 42 U.S.C. § 1983 civil
rights complaint, which was dismissed without prejudice
pursuant to Petitioner's notice of voluntary dismissal.
Welch v. Allenby, No. 1:15-cv-00121-LJO-MJS (E.D.
Cal. May 4, 2015). On February 10, 2015, Petitioner again
filed a § 1983 civil rights complaint, which was
dismissed with prejudice for failure to state a claim.
Welch v. O'Neal, No. 3:15-cv-00725-THE (N.D.
Cal. July 28, 2015). On April 12, 2016, Petitioner filed a
federal habeas petition, which Petitioner later voluntarily
dismissed. Welch v. Brown, No. 1:16-cv-00861-EPG
(E.D. Cal. Sept. 9, 2016).
September 16, 2016, Petitioner filed the instant federal
petition for writ of habeas corpus in the United States
District Court for the Northern District of California. (ECF
No. 1). On October 28, 2016, the matter was transferred to
this Court. (ECF No. 7). On April 3, 2017, Respondent filed a
motion to dismiss, arguing that the petition was filed
outside the one-year limitation period. (ECF No. 21).
Petitioner has not filed any opposition to the motion to
purports to bring this habeas petition pursuant to 28 U.S.C.
§ 2241. (ECF No. 1 at 1). However, as Petitioner is
“in custody pursuant to the judgment of a State court,
” the petition is governed by 28 U.S.C. § 2254.
See Duncan v. Walker, 533 U.S. 167, 176 (2001)
(noting that a state court order of civil commitment
satisfies § 2254's “in custody”
requirement); Huftile v. Miccio-Fonseca, 410 F.3d
1136, 1139-40 (9th Cir. 2005) (“It is well established
that detainees under an involuntary civil commitment scheme
such as SVPA may use a § 2254 habeas petition to
challenge a term of confinement.”).
Statute of Limitations
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
The AEDPA imposes various requirements on all petitions for
writ of habeas corpus filed after the date of its enactment.
Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries
v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc).
The instant petition was filed after the enactment of the
AEDPA and is therefore governed by its provisions.
AEDPA imposes a one-year period of limitation on petitioners
seeking to file a federal petition for writ of habeas corpus.
28 U.S.C. § 2244(d)(1). Section 2244(d) provides:
(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 the 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 recognized by the Supreme Court and made