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Hoskins v. Asuncion

United States District Court, C.D. California

May 22, 2018

Rudolph Hoskins
v.
Debbie Asuncion

          PRESENT: HONORABLE SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE

          CIVIL MINUTES - GENERAL

         DOCKET ENTRY: ORDER TO SHOW CAUSE WHY THE MAGISTRATE JUDGE SHOULD NOT RECOMMEND THAT THIS ACTION BE DISMISSED AS UNTIMELY

         PROCEEDINGS: (IN CHAMBERS)

         On April 5, 2018, [1] Rudolph Hoskins, a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254, apparently challenging the state parole board's 2015 decision denying parole for five years, as well as the decision denying a petition to advance the date of Petitioner's next parole suitability hearing. (Dkt. No. 1). The Petition appears to be untimely.

         AEDPA also imposes a specific time limit on the filing of federal habeas petitions. See Rhines v. Weber, 544 U.S. 269, 274 (2005). By creating a limitations period, Congress intended “to reduce delays in the execution of state and federal criminal sentences.” Woodford v. Garceau, 538 U.S. 202, 206 (2003). Under 28 U.S.C. § 2244(d)(1), as amended, state prisoners have only one year in which to file their federal habeas petitions. The one-year limitations period prescribed by 28 U.S.C. § 2244(d)(1) begins to 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 retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D). For claims challenging decisions of the state parole board, the one-year statute of limitations begins to run when the time for administrative appeal ends. See Shelby v. Bartlett, 391 F.3d 1061 (9th Cir. 2004); Redd v. McGrath, 343 F.3d 1077 (9th Cir. 2003).

         The parole board held a parole hearing on June 18, 2015 and denied parole for five years. (See Petition at 47-83 (parole hearing transcript)). Parole hearing decisions are reviewable by the full parole board, and they become final within 120 days of the hearing. Cal. Code Regs. tit. 15, §§ 2041, 2043. Here, the decision became final on October 16, 2015. The limitations period began to run that day, see Redd, 343 F.3d at 1085, and expired one year later, on October 16, 2016. Therefore, absent tolling, the instant Petition is untimely by nearly a year and a half.

         AEDPA provides a statutory tolling provision which suspends the limitations period for the time during which a “properly filed” application for post-conviction or other collateral review is “pending” in state court. 28 U.S.C. § 2244(d)(2); accord Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). In addition to statutory tolling, the limitations period may also be subject to equitable tolling if Petitioner can demonstrate both: (1) that he has diligently pursued his rights; and (2) that some extraordinary circumstance stood in his way. See Holland v. Florida, 560 U.S. 631, 649 (2010). “The petitioner must show that the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (citation omitted).

         Here, Petitioner has not alleged any facts indicating that he may be entitled to statutory or equitable tolling. Petitioner's response to this Order should identify any facts that would permit him to demonstrate that he is entitled to tolling. See Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010) ...


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