Opinion
No. CIV S-05-2004 DFL DAD P.
August 14, 2006
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2004 decision by the California Board of Prison Terms (BPT) finding him unsuitable for parole. Respondents have moved to dismiss the petition on the grounds that: (1) the petition is time-barred under the applicable statute of limitations; (2) the petition contains procedurally defaulted claims; and (3) the court lacks subject matter jurisdiction. For the reasons set forth below, the undersigned will recommend that the motion be granted based on petitioner's failure to file a timely petition.
Because the court has determined that the pending petition is time-barred, respondents' procedural default and jurisdictional arguments will not be addressed herein.
I. Procedural History
1. In 1991, petitioner was convicted of second degree murder in the Sacramento County Superior Court and was sentenced to a term of fifteen years to life imprisonment. (Petition at 2.)
Petitioner has submitted a form petition with the first page numbered as page 2.
2. On February 25, 2004, the BPT denied petitioner parole following a hearing at the California Men's Colony at San Luis Obispo, California. (Mot. to Dismiss (MTD), filed 2/8/06, Ex. D.)
3. On May 25, 2004, the BPT decision became final. (MTD at ECF 5; MTD, Ex. A at ECF 20 and Ex. C at ECF 49.)
The parties refer to the last page of the transcript of the February 25, 2004 BPT hearing which provides the "Final Date of Decision." See Court document number 15, Ex. D at electronic case file (ECF) page 81. Although the parties both agree that the date which appears at that page is May 25, 2004, the court is unable to verify the representation because the date appears too faint on the copy that was scanned into the court's ECF system. However, since the parties do not dispute this date, the court will accept it as the date the BPT decision became final.
This court has implemented the Case Management/Electronic Case Files (CM/ECF) docketing and file system so that all documents are now stored and can be retrieved electronically. Under this system, every page of a document is numbered in chronological order, including cover pages, blank pages, tabbed pages, and proofs of service. When the undersigned refers to a page number with an "ECF" designation, the court is using the page number assigned by the CM/ECF system.
4. On February 21, 2005, petitioner attempted to file a state habeas petition challenging the parole denial with the Sacramento County Superior Court. However, the Superior Court returned the petition to petitioner because he had not used the form approved by the California Judicial Council. (Opp'n at 2 and Ex. A.)
5. On March 27, 2005, petitioner signed and delivered his habeas petition on the approved form for mailing to the Sacramento County Superior Court. (MTD, Ex. A at ECF 66-67.)
6. On May 2, 2005, the Sacramento County Superior Court denied the habeas petition as untimely, stating as follows:
An untimely state habeas corpus petition is an abuse of the writ of habeas corpus, and if unjustified, is barred from habeas corpus review (In re Robbins (1998) 18 Cal. 4th 770, 811-812, 812 fn. 32; In re Clark (1993) 5 Cal. 4th 750, 774-775). As petitioner has failed to set forth any justification or exception to the Robbins/Clark bar, his claims are all barred from review by this court on habeas corpus.
In addition, petitioner has failed to attach a copy of the entire transcript of the February 25, 2004 parole hearing, having deleted pages 15 through 22 of that transcript. Without the full transcript, this court would not have been able to fully assess his claims, had they not been barred from habeas corpus review, requiring denial of this petition for that reason as well (In re Harris (1993) 5 Cal. 4th 813, 827 fn. 5).
(MTD, Ex. B at ECF 3.)
7. On an unknown date, petitioner filed a petition for writ of habeas corpus with the California Court of Appeal for the Third Appellate Court. (Petition, at ECF 3.) That petition was summarily denied on June 2, 2005. (MTD, Ex. C at ECF 4.)
8. On June 15, 2005, petitioner filed a petition for review with the California Supreme Court. (MTD, Ex. C at ECF 2.) The petition was summarily denied on August 17, 2005. (MTD, Ex. E at ECF 2.)
9. On September 29, 2005, petitioner's pending federal habeas petition was signed and delivered to prison officials for mailing. The petition was filed on October 4, 2005.
II. The Parties' Arguments
Respondents argue that pursuant to 28 U.S.C. § 2254(d)(1)(D), the statute of limitations on petitioner's claim challenging his parole denial began to run on May 25, 2004 when the BPT decision became final and continued to run for 492 days until September 29, 2005 when the petitioner signed his federal habeas petition. (MTD at ECF 5.) Since this period of time far exceeds the one-year statute of limitations, respondents argue that the petition is time barred unless petitioner is entitled to statutory tolling under § 2244(d)(2). (Id. at ECF 7.) In determining whether statutory tolling is appropriate, respondents assert that this court must look to the ruling by the Sacramento County Superior Court denying petitioner's state habeas petition since that was the only reasoned decision issued by the state courts. (Id.) Relying on the recent United States Supreme Court decisions in Pace v. DiGuglielmo, 544 U.S. 408 (2005) andEvans v. Chavis, ___ U.S. ___, 126 S. Ct. 846 (2006), respondents argue that the state court's determination that the state habeas petition was untimely compels the conclusion that the state petition was not "properly filed," and cannot serve to toll the statute of limitations. (MTD at ECF 7.) Finally, respondents argue that petitioner is not entitled to equitable tolling because he has failed to allege any circumstances that would justify his delay in seeking to challenge the BPT final decision. (Id. at ECF 8.)
Petitioner opposes the motion to dismiss, arguing that the correct filing date of his habeas petition with the Sacramento County Superior Court is February 21, 2005, rather than the date when that petition was resubmitted using the form petition approved by the state's judicial council. (Opp'n at 1.) Based on a filing date of February 21, 2005, petitioner contends that he complied with the requirements of the statute of limitations. (Id. at 2.)
In their reply, respondents argue that a letter dated March 16, 2005 from Judge Michael G. Virga of the Sacramento County Superior Court accompanying the return of petitioner's first habeas petition filed with that court indicated that the petition had not been submitted on the proper form and was therefore not "properly filed" for purposes of statutory tolling. (Resp'ts' Reply at 2.) In addition, respondents argue that in ultimately rejecting petitioner's subsequently filed petition the Superior Court determined that it was untimely under state law and that such a determination is dispositive on the issue of tolling under § 2244(d)(2). (Id. at 3.)
In an unauthorized reply to respondents' reply, petitioner argues that he is entitled to tolling of the statute of limitations and that there should be no penalty for any delay caused by the necessity of his filing the habeas petition on the form required by the Superior Court.
III. Analysis
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one-year statute of limitations applies to the filing of a non-capital habeas corpus petition in federal court. See 28 U.S.C. § 2244(d)(1). When a petitioner challenges the decision of an administrative body, such as a parole board, the one-year period of limitation begins to run on the date on which the factual predicate of the claims presented could have been discovered through the exercise of due diligence. Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004); Redd v. McGrath, 343 F.3d 1077, 1080-83 (9th Cir. 2003). In general, the one-year period will begin to run on the date the administrative decision, such as the denial of parole, becomes final. Shelby, 391 F.3d at 1065-66; Redd, 343 F.3d at 1084 (AEDPA statute of limitations on challenge to a parole board decision begins to run on the day following the denial).
The one-year federal statute of limitations is tolled while a petitioner exhausts state remedies. "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). This statutory tolling will apply if a state habeas petition has been properly filed. Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that a properly filed state application complies with the applicable laws and rules governing filings, including the form of the application and time limitations). A state habeas petition is "pending" during a full-round of review in the state courts. This includes the time between a lower court decision and filing a new petition in a higher court as long as those intervals are "reasonable." Carey v. Saffold, 536 U.S. 214, 222-24 (2002).
Apart from this statutory tolling provision, the one-year period is also subject to equitable tolling if extraordinary circumstances beyond a prisoner's control make it impossible to file a federal petition on time. Redd v. McGrath, 343 F.3d 1077, 1081 (9th Cir. 2003).
In reviewing habeas petitions originating from California, the Ninth Circuit formerly employed a rule that where the California courts did not explicitly dismiss for lack of timeliness, the petition was presumed timely and was "pending." In Evans v. Chavis, ___ U.S. ___, 126 S. Ct. 846 (2006) the Supreme Court rejected this approach and now requires that the lower courts determine whether a state habeas petition was filed within a reasonable period of time. 126 S.Ct. at 852 ("That is to say, without using a merits determination as an `absolute bellwether' (as to timeliness), the federal court must decide whether the filing of the request for state-court appellate review (in state collateral review proceedings) was made within what California would consider a `reasonable time.'"). However, "[w]hen a postconviction petition is untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2)."Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005) (quotingPace, [ 544 U.S. at 414] 125 S. Ct. at 1812). See also Carey v. Saffold, 536 U.S. at 226.
In Pace v. DiGuglielmo the Supreme Court held that time limits for filing "go to the very initiation of a petition and a court's ability to consider that petition[.]" 544 U.S. 408, 417 (2005).
Here, the one-year statute of limitations began to run on May 26, 2004, the day after the decision of the BPT became final.See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (applying Rule 6(a) of the Federal Rules of Civil Procedure for computation of the statute of limitations period, so that the day of the event from which the designated period of time begins to run shall not be included); Redd, 343 F.3d at 1084. Respondents are correct in their assertion that absent tolling the one-year limitation period expired several months before petitioner signed his federal habeas petition on September 29, 2005.
This is the earliest possible filing date for the federal petition pending before this court under the mailbox rule announced in Houston v. Lack, 487 U.S. 266, 276 (1988).
As set forth above, petitioner filed three state habeas applications each of which was denied. Both the California Court of Appeal and the California Supreme Court issued summary denials. These are "unexplained orders," i.e., "an order whose text or accompanying opinion does not disclose the reason for the judgment." Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991). When confronted with a state court's unexplained order, the federal court applies the following presumption: "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Id. at 803. See also Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). In applying this look-through presumption, unexplained orders are given no effect.Id. at 804.
In this case, the Sacramento County Superior Court issued a reasoned order rejecting petitioner's claims. This court will therefore "look through" unexplained orders of the California Supreme Court and the California Court of Appeal to the Superior Court order filed May 2, 2005, in order to determine whether the state courts found the state petition to be untimely as a matter of state law. In that order the state court specifically stated:
The petition, however, is untimely, having been signed, on March 27, 2005, and submitted to prison authorities for filing with the court more than one year after the February 25, 2004 denial of parole.
An untimely state habeas corpus petition is an abuse of the writ of habeas corpus, and if unjustified, is barred from habeas corpus review (In re Robbins (1998) 18 Cal. 4th 770, 811-12, 812 fn. 32; In re Clark (1993) 5 Cal. 4th 750, 774-75). As petitioner has failed to set forth any justification or exception to the Robbins/Clark bar, his claims are all barred from review by this court on habeas corpus.
(MTD, Ex. B (Superior Court Order) at ECF 3.) Thus, the state courts clearly found petitioner's state petitions to be untimely. As noted above, it is now also clear that once the state courts find a postconviction petition untimely under state law, that petition has been determined to be not properly filed and cannot serve as the basis for statutory tolling under § 2244(d)(2).Pace, 544 U.S. at 414; Carey v. Saffold, 536 U.S. at 226;Bonner, 425 F.3d at 1148-49.
In In re Robbins, 18 Cal. 4th 770, 811-12 (1998) and In re Clark, 5 Cal. 4th 750, 774-75 (1993) the California Supreme Court addressed the barring of review of habeas petitions filed after substantial delay.
For what it may be worth, this conclusion also appears to be generally consistent with those reached by federal courts called upon to independently determine whether petitions were filed within what California would consider a "reasonable time."See Evans v. Chavis, ___ U.S. ___, 126 S. Ct. 846, 853-54 (2006) (holding that a six month delay in seeking review by the state supreme court after denial of a writ by the state court of appeal was unreasonable); Gaston v. Palmer, 447 F.3d 1165, 1167 (9th Cir. 2006) (finding delays of 10, 15 and 18 months between denials and the filing of the subsequent petition to be unreasonable). Moreover, in light of the untimeliness determination by the state courts, petitioner's arguments concerning the filing date for his initial state court petition miss the mark.
Finally, petitioner has claimed no entitlement to equitable tolling and thus has failed to met his burden on that issue.See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 1998). Therefore, the court finds that petitioner is not entitled to equitable tolling in that he has failed to demonstrate that extraordinary circumstances beyond his control made it impossible for him to file his federal petition in a timely manner. See Pace, 544 U.S. at 418; Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc), overruled in part on other grounds by Woodford v. Garceau, 538 U.S. 202, 205-06 (2003); Redd, 343 F.3d at 1085.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondents' February 8, 2006 motion to dismiss the petition as time-barred be granted; and
2. This action be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fifteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within five days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).