United States District Court, S.D. California
REPORT AND RECOMMENDATION RE RESPONDENT'S MOTION
TO DISMISS [Doc. No. 17]
S. Crawford United States Magistrate Judge
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
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.
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.]
8, 2014, petitioner filed a petition for writ of
habeas corpus in the Superior Court of Del Norte
County. [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.
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.
18, 2015, petitioner filed a petition for writ of habeas
corpus in the California Court of Appeal. 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).
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. [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.]
first federal Petition for Writ of Habeas Corpus in this case
was filed on August 1,
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
STANDARD OF REVIEW
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).
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 ...