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Welch v. Price

United States District Court, E.D. California

May 12, 2017

KENDYL WELCH, Petitioner,
v.
BRANDON PRICE, [1] Respondent.

          FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 21)

         I. BACKGROUND

         In 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[2] 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).

         Petitioner has filed three state habeas petitions challenging his commitment. On August 24, 2015, [3] 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).

         In 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).[4] 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).

         On 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 dismiss. ///

         II. DISCUSSION

         Petitioner purports to bring this habeas petition pursuant to 28 U.S.C. § 2241. (ECF No. 1 at 1).[5] 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.”).

         A. Statute of Limitations

         On 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.

         The 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 ...

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