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Barajas v. Graves

United States District Court, S.D. California

May 30, 2017

RAUL AGUIRRE BARAJAS, Petitioner,
v.
R. GRAVES, Respondent.

          REPORT AND RECOMMENDATION RE RESPONDENT'S MOTION TO DISMISS [Doc. No. 17]

          Karen S. Crawford United States Magistrate Judge

         Before the Court is a First Amended Petition for a Writ of Habeas Corpus (“Amended Petition”) filed on September 26, 2016, by petitioner Raul Aguirre Barajas (“petitioner”), a state prisoner proceeding in forma pauperis. [Doc. Nos. 9, 11.] On January 4, 2017, respondent R. Graves (“respondent”) filed a Motion to Dismiss the Amended Petition as untimely. [Doc. No. 17.] Petitioner did not respond to respondent's Motion to Dismiss. After a thorough review of Amended Petition [Doc. No. 11], respondent's Motion to Dismiss [Doc. No. 17], and the supporting documents submitted by respondent [Doc. No. 18], the Court RECOMMENDS that respondent's Motion to Dismiss be GRANTED, and that the Amended Petition be DISMISSED.

         I. PROCEDURAL HISTORY

         Petitioner is an inmate currently serving a third strike 45-year-to-life term for murder. [Doc. No. 18-2, at p. 1.] He is also serving an indefinite administrative term in the secure housing unit (“SHU”) as a result of being validated as an associate of the Mexican Mafia prison gang. Id.

         On My 10, 2013, while incarcerated at Pelican Bay State Prison, petitioner received a Rules Violation Report (“RVR”) for willfully delaying a peace officer by participating in a hunger strike and missing nine consecutive state issued meals. [Doc. No. 11, at p. 41; Doc. No. 18-1, at pp. 30-31.] After a disciplinary hearing on July 25, 2013, the hearing officer found petitioner guilty of willfully delaying a peace officer in the performance of duty arising from his participation in the hunger strike. [Doc. No. 11, at p. 43; Doc. No. 18-1, at pp. 21-22.] The hearing officer imposed a forfeiture of ninety days of conduct credits as petitioner's penalty. [Doc. No. 11, at p. 44; Doc. No. 18-1, at pp. 21-22.] Petitioner unsuccessfully challenged the disciplinary decision by filing administrative appeals within the prison system. [Doc. No. 11, atpp. 19, 57-58; Doc. No. 18-1, atpp.26-35.] On December 23, 2013, the Pelican Bay State Prison issued the third (and final) level appeal decision affirming the RVR and finding petitioner guilty of willfully delaying a peace officer for his participation in the hunger strike. [Doc. No. 11, at pp. 19, 57-58.]

         On May 8, 2014[1], petitioner filed a petition for writ of habeas corpus in the Superior Court of Del Norte County.[2] [Doc. No. 18-1, at pp. 1-13.] Petitioner argued that “the disciplinary guilty finding was unlawful.” Id. at p. 4. Specifically, petitioner argued that “the decision not to eat is a medical decision” and defendants violated his “right of privacy when they chose to punish him for his right to make a medical decision.” Id. at p. 6.

         Petitioner further argued that defendants gave “no evidence offorce and violence, nor any evidence of delaying a peace officer.” Id. at p. 8. In a four-page order filed on March 9, 2015, the Del Norte Superior Court denied petitioner's writ of habeas corpus. [Doc. No. 18-2, at pp. 1-4.] The Del Norte Superior Court found that “[p]etitioner is statutorily precluded from earning credits against his sentence because of his three-strikes conviction (Penal Code §2933.2(a)), because is serving a sentence for murder (Penal Code §1933.5) and because he is a validated prison gang affiliate housed in the SHU (Penal Code § 2933.6).” Id. at pp. 1-2. In denying the petition, the Court noted that “[petitioner is not eligible to earn custody credits.” Id. “Nevertheless, the hearing officer, as punishment for this disciplinary offense, assessed a 90-day credit forfeiture, but advised Petitioner that if he remained discipline free for six months he may qualify for restoration of credits.” Id.

         On May 18, 2015, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal.[3] Poc. No. 18-3, at p. 20.] Petitioner contended in his petition to the California Court of Appeal that:

He did not seek to have his credits restored but rather to have his record cleared of a frivolous conviction for a non-existent prison rule violation. . .. Petitioner's requested remedy is dismissal [of the guilty finding of willfully delaying a peace officer] because, when Petitioner finally appears before the Parole Board for a suitability hearing, ‘institutional behavior' is a statutory factor which the Parole Board is mandated to consider on determining whether to grant Parole or not.

Id. at p. 16. (internal citation omitted).

         The California Court of Appeal denied petitioner's writ of habeas corpus on July 9, 2015 in a one sentence decision stating “[t]he petition for a writ of a habeas corpus is denied.” [Doc. No. 11, at p. 92.] On August 10, 2015, petitioner filed a petition for writ of habeas corpus with the California Supreme Court.[4] [Doc. No. 11, at pp. 15-35.] The California Supreme Court summarily denied the petition on January 13, 2016. [Doc. No. 18-4, atp. 1.]

         The first federal Petition for Writ of Habeas Corpus in this case was filed on August 1, 2016(hereinafter“FirstFederalPetition”). [Doc. No. 1.] On August 30, 2016, the Court dismissed without prejudice the First Federal Petition for failure to name a proper respondent. [Doc. No. 9, at pp. 2-3.] On September 22, 2016, petitioner filed the instant Amended Petition for Writ of Habeas Corpus before the Court. [Doc. No. 9]. The instant Amended Petition alleges that the disciplinary decision finding petitioner guilty was unlawml and deprived petitioner of his rights to due process of law, among other things. [Doc. No. 11, at p. 7.] On October 11, 2016, this Court issued a briefing schedule. [Doc. No. 12.] Respondent filed the instant Motion to Dismiss the Amended Petition on January 4, 2017. [Doc. No. 17.] To date, petitioner has not filed an Opposition.[5]

         II. STANDARD OF REVIEW

         The Amended Petition is governed by 28 U.S.C. § 2254, as amended by the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”). Section 2254(a) sets forth the scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of Constitution or laws or treatises of the United States.

28 U.S.C. § 2254(a).

         The AEDPA created a one-year statute of limitations for the filing of a federal habeas petition by a state prisoner. The applicable statute of limitations is set forth in 28 U.S.C. § 2244(d) as follows:

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 ...

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