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Zaccardi v. Arnold

United States District Court, E.D. California

May 23, 2018

ALBERT ZACCARDI, Petitioner,
v.
E. ARNOLD, Respondent.

          FINDINGS & RECOMMENDATIONS

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner is a state prisoner, proceeding without counsel. In his amended petition, petitioner raises two claims: (1) as a result of the October 16, 2015[1] three year denial of parole, petitioner's sentence is excessive, disproportionate, and cruel and unusual punishment in violation of the Eighth Amendment; and (2) the second degree felony murder rule is void for vagueness. Respondent moves to dismiss this action as barred by the statute of limitations, and for failure to state a cognizable claim. Petitioner filed an opposition, and respondent filed a reply.

         As set forth below, the undersigned recommends that the motion to dismiss be granted in part and denied in part.

         II. Legal Standards

         Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . .” Id. Moreover, the Advisory Committee Notes to Rule 8 of the Rules Governing Section 2254 Cases indicate that the court may dismiss a petition for writ of habeas corpus: on its own motion under Rule 4; pursuant to the respondent's motion to dismiss; or after an answer to the petition has been filed. See, e.g., Miles v. Schwarzenegger, 2008 WL 3244143, at *1 (E.D. Cal. Aug. 7, 2008) (dismissing habeas petition pursuant to respondent's motion to dismiss for failure to state a claim). However, a petition for writ of habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

         III. Statute of Limitations

         On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) was enacted. Section 2244(d)(1) of Title 8 of the United States Code provides:

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 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).

         Under subsection (d)(1)(A), the limitations period runs from the time a petition for certiorari to the United States Supreme Court was due, or, if one was filed, from the final decision by that court. Lawrence v. Florida, 549 U.S. 327, 339 (2007). When a prisoner challenges a decision of the parole board, the statute runs from the date the board's decision becomes final. Redd v. McGrath, 343 F.3d 1077, 1082 (9th Cir. 2003) (factual predicate of petitioner's challenge to parole board decision was known when parole board denied petitioner's administrative appeal); see Cal. Penal Code § 3041(b)(2) (“After July 30, 2001, any decision of the parole panel finding an inmate suitable for parole shall become final within 120 days of the date of the hearing. . . .”); Williams v. Rackley, 2016 WL 1360136, at *3 (E.D. Cal. Apr. 6, 2016) (statute of limitations for habeas claim re parole board decision did not begin to run until the 120-day period concluded).

         For purposes of statutory tolling, the time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year limitations period. See 28 U.S.C. § 2244(d)(2). A state petition is “properly filed, ” and thus qualifies for statutory tolling, if “its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). “The period between a California lower court's denial of review and the filing of an original petition in a higher court is tolled -- because it is part of a single round of habeas relief -- so long as the filing is timely under California law.” Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010) (citing Evans v. Chavis, 546 U.S. 189, 191-93 (2006). State habeas petitions filed after the one-year statute of limitations has expired do not revive the statute of limitations and have no tolling effect. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed”); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).

         The limitations period may be equitably tolled if a petitioner establishes “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). An extraordinary circumstance must be more than merely “‘oversight, miscalculation or negligence on [the petitioner's] part.'” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 130 S.Ct. 244 (2009) (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008)). Rather, petitioner must show that some “external force” “stood in his way.” Id. “The threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation omitted).

         IV. Chronology

         For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:

1. In 1983, petitioner was convicted of second degree murder with use of a firearm. ECF No. 15 at 1.) On August 23, 1983, petitioner was sentenced to a state ...

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